Will's Civ Pro _Ogden_

Outline – Civil Proce dure 9/21/01 I. An Overview of Procedure What is Civil Procedure? Our civil litigation system 1. courts 2. judges 3. jury 4. parties 5. lawyers Constitution sets some parameters for fairness- article three Due process of law- boundaries for fair procedure, goes back to the magna carta Well established by the 18 th century Statutes – rules, have the force of law California state courts rely on statutes heavily Civil procedure – insiders law Sources of authority 1. constitution 2. Case law 3. FRCP provisions 4. statutes Adversary system – two sides: plaintiff, defendant. Two attorneys that fairly represent his client. Try to point out weakness in the other side‟s case. Our judges play a more passive role as a neutral umpire. Both sides are heard – goes back to genesis, who took the apple? Decision on the merits- apply the law to the facts. The decision is principle A. Where can the suit be brought? I. subject matter jurisdiction, - Gordon v. Steele - Gordon‟s operation occurred in Pennsylvania, but she is a student at Ricks, Idaho. Her parents live in Pennsylvania. - She filed in a federal court because she claims residency in Idaho - Defense files for a lack of jurisdiction FRCP rule 12(b)(1) B. Stating the Case I. the Lawyer‟s Responsibility - Bridges v. Diesel Services - Bridges‟ counsel did not file charges with the EEOC before the suit. - plaintiff‟s counsel violated Rule 11 of the FRCP by not investigating a normally competent level of legal research - Rule 11 - “Stop, Look, and Listen” or Stop, Think, Investigate, and Research. Lawyers‟ role: 1. Law – sources: constitution, state, cases 2. Facts- how the principles are applying in this situation, each side raises the facts that support their arguement 3. strategy- which court to try the case in II. The Complaint - Bell v. Novick Transfer Co. - The defendant moved to dismiss the complaint because they believed it failed to state a claim and is too vague - Issue – how much detail should the plaintiff give about the claim? - it is good enough under Rule 8 of FRCP “a short and plain statement of the claim showing that the pleader is entitled to relief.” 1 III. The Response The defendant‟s responses to a complaint 1. not here objections – lack of juristiction, ect. 2. so what? objection – suing for making a face at you – demurrer 3. what said – don‟t understand the complaint 4. not true – defendant has to respond to the truth 5. yes but – affirmative defensives, ie. Plaintiff‟s negligence 6. here‟s mine – counter-claim first three are for pre-answer motions (Rule 12) last 3 responses are invoked in the answer - the pleadings set the superstructure of the issue, everything else fills in the rest C. Parties to the Lawsuits Joinders lawsuits involving more than one plaintiff and more than one defendant. In most cases, joinder is permitted but not required. It is left up to the plaintiff to decide - Compulsory joinder is where the court forces the joinder - Temple v. Synthes Fed. Lawsuit #1 Plain v. Def1 (PA) State lawsuit #2 Plain v. Def2 (LA) Def3 (LA) Def1 motion to dismiss Rule 12(b)7 failure to join - here the court decided that the plaintiff did not have to join all defendants - if you have all the defendants in the same room together, they can point the finger at each other, but the jury would be able to get one of them - if the cases are tried separately, the defendants can blame each other and they will get off - Def1 could have joined Def2 and Def3. Why didn‟t he? Maybe his only defense was to blame the others, and he couldn‟t have done that if the three were joined. D. Discovery Discovery = process by which information about a lawsuit is gathered and developed - 1938 reform relaxed the pleading requirements and put a greater emphasis on fact discovery tools for discovery 1. mandatory disclosure – early in the process 2. inspection of documents 3. depositions 4. written interrogatories 5. physical and mental examination - Butler v. Rigby - auto accident case - the treating doctors are asked to give documents to the defense - 2 - - FRCP 26– the scope of discovery is very broad, range of relevance is broad. “If the info appears reasonably calculated to lead to the discovery of admissible evidence, it‟s a go” Here, the defense was trying to show the doctors were biased witnesses. (Overview) legal process 1. pleading 2. pretrial a. discovery b. summary judgment 3. trial 4. appeal 5. enforcement E. Pretrial Disposition – Summary Judgment - Houchens v. American Home Assurance co. - Woman trying to show her husband was dead to collect life insurance. - However, the facts only show that he disappeared in Thailand, not that he died an accidental death – which the policy covered. - Celotex Corp. v. Catrett “if you fail to establish the existence of an element essential to the case it can mandate summary judgment” - FRCP Rule 56 c. p. 132 o If there is no genuine issue to any material fact, then the moving party is entitled to judgment as a matter of law = summary judgment F. Trial - Norton v. Snapper Power Equipment - man riding a lawnmower has finger cut off in an accident – liability claim - The jury returned a verdict for plaintiff, but directly afterwards, the judge entered a judgment notwithstanding the verdict. - He said there was not sufficient evidence presented which a jury could find that there was an inherent defect in the product at the time. - test for granting a judgment nov = the court considers the evidence in the light most favorable to the non-moving party and should grant the judgment notwithstanding the verdict only where the evidence so strongly and so favorably points in the favor of the moving party that reasonable people could not arrive at a contrary verdict. G. Former Adjudication - Rush v. City of Maple Heights - woman injured in motorcycle accident sued 1 st for damages to motorcycle, and 2 nd for hospital bills. - Court says “NO”, this is res judicata – you can‟t litigate a second lawsuit on the same claim. - every dog gets only one bite at the apple 3 The majority rule is that only one cause action arises, because the defendant‟s wrongful act was single and the cause of action must be single. H. Appeals - Apex Hosiery v. Leader - defendant tried to appeal an interlocutory(temporary) order by the court - No, you can‟t do that - no jurisdiction because the final judgment has not been made - why do we have the final judgment rule? Litigation would be protracted II. Pleadings Pleading 1. common law – California form of pleading - writs (law based) 2. code pleading – California state courts - ultimate facts more detail - facts sufficient to constitute a cause of action 3. Notice pleading – federal courts - short and plain statement of claim. A. Stating a Claim: General Principles - People ex re. Department of Transportation v. Superior Court - plaintiff filled out a Judicial Counsel form for his complaint - defendant demurred because the complaint did not set forth reasons for liability - defendant seeks a writ of mandate(interlocutory review) - the court grants this - The essence of fairness in pleading is to give the defendant sufficient notice of the cause of action stated against him so that he will be able to prepare his case. - Demurrer – a code pleading term. Saying that the complaint has not alleged facts, that if proven, would establish a prima facie case. - Haddle v. Garrison - plaintiff alleged that he was conspired against when he was fired, violating 42 USC 1985 - defendants moved to dismiss for failure to state a claim(rule 12 (b) 6) upon which relief can be granted because he is an at-will employee - defendant wins, but it goes to the supreme court and is reversed - Why did the Supreme court take the case? The eleventh circuit‟s holding (the appellate court) conflicts with the holdings of the first and ninth circuits. - policy : the gist of the wrong that the rule is directed at is not deprivation of property, but intimidation or retaliation against witnesses in federal court proceedings. B. Ethical Limitations and Disfavored Claims - 4 Rule 11 a. signing papers, not applied to oral statements b. certification requirement - reasonable inquiry standard. i. not for an improper purpose* ii. legal merit for the claim, frivolous – need to do the research* iii. factual support for claims- we have an elaborate discovery process, so there just has to be enough for a reasonable justification iv. denials are warranted c. sanctions may be awarded - pre „83, nobody used sanctions. 83-93 , lots of sanctions used, post 93 less sanctions - how initiated: C 1(a) party motion; - safe harbor – party motion is served(alert opponent) but then you wait 21 days to file(bring to court) to allow opponent to withdraw - law firm will be held jointly responsible for violations - C 2 limitations of sanctions – sanctions can include non-monetary penalties - Purpose of sanctions is deterrence. - Sanctions are discretionary - 2 A – no sanctions against the client if they violate b 2 - Business Guides v. Chromatic Communications Enterprises - Plaintiff had failed to conduct a proper inquiry, resulting in the presentation of unreasonable and false information to the court in regards to 1. the temporary restraining order and 2. the accuracy of the seeds. - plaintiff wanted TRO proceeding. It was sought ex parte - when the Kumble law firm was caught in their error, they didn‟t come clean. They claimed it was a coincidence. They were not ethical, and got sanctioned- rule 11 - Magistrate ordered sanctions because the attorneys and the defense were not truthful with the court when they were caught. - Religious Technology Center v. Gerbode - The established law on RICO was available when the claim was originally filed. Plaintiff‟s counsel did not do enough reasonable research to find this out, and it violates Rule 11(b)2 --- the claims are frivolous. - Due to the long-standing litigation, the court decides to impose sanctions to deter any more litigation. - This is different from the previous case, because those lawyers were not sanctioned. Could they have done the research under the circumstances, or was it too urgent? - Olsen v. Pratt & Whitney Aircraft – disfavored claim - Plaintiff, 54, was working for the defendant and was told that he was eligible to participate in their Retirement Incentive Program, giving special benefits and money for workers who agreed to take an early retirement and to not sue under Age Discrimination. - He was fired and claims fraud. Claim dismissed. 5 when a complaint charges fraud it must 1. detail the statement. 2. identify the speaker. 3. state where and when they occurred and 4. explain why they are fraudulent. Rule 9 (b) Civil Rights – disfavored claims - Leatherman v. Tarrant County - two separate incident involving the execution of search warrants by local law enforcement officers. - Civil rights statute 42 USC 1983: permits suit against officials that deprive people of constitutional rights - However, government officials enjoy an immunity from this if they reasonably believed the order was constitutional, even if it was not. - Can a court apply higher pleading standards than rule 8 to a civil rights case alleging municipal liability? No - All you need is a short and plain statement of the claim Allocating the Elements - Gomez v. Toledo - Gomez worked for the defendant at the police department in Puerto Rico. He was fired in bad faith and Gomez filed 1983 - Should the plaintiff allege that the official acted in bad faith in order to state a claim for relief, or should the defendant plead good faith as an affirmative defense? The defendant‟s affirmative defense - Since qualified immunity is a defense, the burden of pleading rest with the defendant. Rule 8 c statute 1983 civil rights 1. every plaintiff 2. whose federal rights are violated 3. by a public official defendant 4. acting under color of state law 5. in entitled to remedies unless 6. defendant official acted with objectively reasonable belief in lawfulness of conduct - after the civil war, this statute gave rights to the freed slaves. - 1960‟s civil rights movements broadened the statute application to all people C. Responding to the Complaint Rule 8 pleading a. claims – short plain statement, relief b. negative defenses o denials c. affirmative defenses have to respond to each allegation, either assert or deny d. failure to deny- silence is treated as a approval e. consistency - either a straight denials or a conditional denial Answer – Denials - Zeilinski v. Philadelphia Piers - 6 a forklift that injured a worker had Philadelphia‟s initials on it, but it was actually owned by Carload Contractors. - Philly denied that their forklift hit the man, and the plaintiff thought that they were denying the negligence charge. - 1. the defendant should file a more specific answer than a general denial. - The answer to P 5 does not make clear to plaintiff the defenses he must be prepared to meet - 2. principles of equity require that the def be estopped from denying agency because its inaccurate statements will have deprived plaintiff of his right of action. Affirmative Defenses - Layman v. Southwestern Bell Telephone Co. - Plaintiff alleged that the defendant trespassed upon her land to dig trenches for wires and cables and later trespassed to maintain those wires. - Is the right of entry by easement is an affirmative defense in an action for trespass? Yes - to see if a defense is an affirmative defense the test is : whether the defendant intends to rest his defense upon some fact not included in the allegations necessary to support the plaintiff‟s case. - most affirmative defenses need discovery, and won‟t easily be dismissed at the pleading stage Amendments Rule 15 A. Amendments- a plaintiff can amend a complaint within 20 days of filing it. Leave shall be freely given when justice so requires. A leave of court may grant an amendment B. amendments of confirm the evidence Rule 15 a. amendments (pretrial) b. trial amendments – evidence is offered to issues outside of the pleadings. Things don‟t always go along the predestined path. Bring it in! c. relation back of amendments- party seeks to amend a pleading to add something that was not in the original complaint, such as a claim or to add a new party. Can get past a statute of limitations. Statute starts to run when the injury occurs. It shouldn‟t be too far from the original claim, so the defendant can already be on notice. d. supplemental pleadings – post complaint facts. - we don‟t want the introduction of new evidence to be fatal to the other party. Rule 15 b can be trumped by a pretrial order. The basic Problem – Prejudice - Beeck v. Aquaslide „N Dive Corp. - a waterslide injures a man, and the manufacturer doesn‟t find out the slide is not their until the case is already in trial - defendant requested to amend their pleading and were allowed to 7 FRCP 15 amended pleadings – leave to amend shall be freely given when justice so requires 1. must be a good reason 2. must not hurt other side too much - If the court had made Aquaslide stand by their initial pleading during the trial, how could they have defended themselves from negligence? They didn‟t even make the slide. - prejudice to the defendant (having to defend a slide they didn‟t make) and to the plaintiff (statute of limitations ran out, too late to file a second lawsuit). Statutes of Limitations and Relation Back - Moore v. Baker - Plaintiff went to doctor about artery blockage. Sued on failure to advise her of alternative therapy - She tried to amend her complaint to charge negligence in performance of the surgery. - Court did not allow it= does not relate back to original claim - FRCP 15 c – if the amendment arose out of the conduct, transaction, or occurrence set forth in the original pleading is can be granted - Bonerb v. Richard J. Caron Foundation - Defendant slipped and fell while playing basketball on defendant‟s court. Defendant is a drug rehab facility. - Plaintiff here was allowed to amend complaint because the allegation of negligence in exercise program relates back to counseling malpractice - the allegations in the original and amended complaints derive from the same nucleus of facts involving injury of the plaintiff - However, the two claims are different torts, might be hard for defendant. III. Alternatives to Adjudication 3-5% of civil cases tried 30% adjudicated on the merits - grantings of motion to dismiss. Rule 12 summary judgments. Rule 56 The Pressure to Chose Adjudication or an Alternative Defaults - Rule 55 FRCP a. Entry – party needs to give an answer or a pre-answer motion within 20 days b. Judgment - clerk - court c. Setting Aside Rule. 60 b- needs to show a good reason - If the dispute involves an easily determined amount of money, you can get a default judgment by the clerk - Anything other needs proof in the court One issued, the default against the defendant is collectable, unless it is set aside A. Default and Default Judgments - Peralta v. Heights Medical Center - the defendant(Peralta) was served, but it was after 90 days – Defendants are entitled to notice. Appealing a default judgment 8 Heights Medical gave a lack of notice to Peralta in Texas, you have to show a meritorious defense to get a default set aside. due process of law- concept of fair procedure, part of our constitution (5 th amendment - due process- before court can take away someone‟s rights, they must be given notice - notice is a requirement that applies to everybody, not just those with a meritorious defense - Here the court decided the issue on higher law than common law rules. Failure to Prosecute: Involuntary Dismissal Voluntary Dismissal Dismissals- these force the parties to move Rule 41 a. voluntary dismissal 1. plaintiff– the first dismissal is without prejudice to refile the complaint. Second dismissal is with prejudice 2. court order- if the parties can‟t agree, the court dismisses it b. involuntary dismissal- if the plaintiff fails to prosecute or to comply with court order, a defendant may move for a dismissal of a claim. Plaintiff cannot refile. c. counter-claim, cross claim B. Avoiding Adjudication Negotiation and Settlement - If there is a case pending, and there is a settlement reached, the defense is going to want to make sure the case is dismissed, and that the plaintiff does not refile. - In exchange for money by the defendant, plaintiff agrees to dismiss with prejudice - Matsushita Elec. Industrial Co. v. Epstien – contracting to dismiss - Matsushita had two class actions filed against them, one federal and one state - Defendant won the federal cases, but in the Delaware state court they negotiated a “global release of all claims” both federal and state - The full faith and credit act says that “judicial proceedings will have the same credit in every court in the US, as they have in the courts of such state from where they are taken.” article 4 sec. 1 constitution Confidentiality - defendants always want this. - there are some public interests that are contrary to confidentiality. Recent example= the firestone tire lawsuit. - Kalinauskas v. Wong - employee of Ceasar‟s palace filing sexual discrimination suit. She wants to take a deposition of a former employee who filed a similar suit, but is under a contract for confidentiality as part of settlement - The court allows the deposition in order to aid discovery. - there is an exception to confidentiality = when there is a court orders disclosure, or a disclosure is required by law. - 3 interest in conflict here: - 9 1. the completion of litigation quickly 2. the secrecy of settlements for the parties 3. the court as a public forum for societal issues. Post Judgment settlements - if the defendant loses big, they can say to plaintiff – we will appeal and drag this out for several years, or we can settle this now for less. - Once there is a judgment, we can‟t settle unless we do something with the judgment. - Vacating the judgment- federal courts - Stipulated reversal- state courts - California legislature changed the state law: CCP 128 requires finding of specific grounds for stipulated reversal Contracting for a Judgment - Neary v. University of California - cattle rancher wins $7 million in libel suit. After long litigation, they agree to settle on $3 million. - They need to get the court to grant a stipulated reversal of judgment - Yes, the court will do it because: - Fairness to the parties interest and that they be accommodated. The courts exist for litigants, litigants do not exist for courts - Thwarting the settlement would frustrate the parties‟ mutual desire for an immediate end to their 13 year dispute - US Bancorp Mortgage Co. v. Bonner Mall - here the plaintiff was attacking a chapter 11 issue of “new value exception” of the defendant and lost - they later settled, plaintiff wanted a stipulated reversal – but the court did not grant it. - The availability of vacatur after the judgment may deter settlement at an earlier stage. Some people may want to roll the dice, if they can wash away an uncomfortable judgment. - US supreme court refused to reverse the judgment. Aside from resolving disputes, court must develop precedents. In this case there is a much stronger public interest. Cal CCP 128 (a)(8)- list of statutes, powers of courts to hold in contempt - stipulated reversals by appellate courts prohibited unless a. no adverse effect on non-parties or public interest b. reasons for reversal outweighs loss of public trust & the lessened incentive for pretrial settlement C. Guided Negotiation: Meditation and Coercion - Lockhart v. Patel - medical malpractice suit, the defendant is not willing to negotiate - the court orders a representative who can negotiate to come, and he doesn‟t show up 10 - Court gets angry and hits them with sanctions Rule 16 (f) - sanctions can be imposed if a party fails to obey a court order Settlement process - mediation- one of the principle settlement instruments used today. - Differs from settlement judges- Settlement is not compulsory, like litigation is. - Barrier to settlement- parties have varying expectations about amount to settle on. Arbitration mediation is a consensual process for resolution, they are not decision makers - arbitration is an alternative decision making process. - Non-enforcement- 1960s and 70s – you weren‟t required to do arbitration - strict enforcement,- 80s 90s- courts mandated arbitration law - new era - 90s, 00s- court scrutinized arbitration agreements - Ferguson v. Writers Guild of America - screenwriter suing for full credit and story rights to Beverly Hills Cop II - the Guild already has a complex arbitration system set up - the court sees no reason to overturn the arbitration‟s decision, they are better qualified than the court anyways - court grants a very limited judicial review - Engalla v. Permanente Medical Group - Kaiser‟s arbitration system says it takes 60 days to get neutral arbitrators, but it actually take 2 years - The court can deny arbitration if there is fraud in the arbitration system - In the New era of arbitration, courts are more likely to break arbitration and allow litigation - The depositions of former counsel for Kaiser reveal that Kaiser had long been aware that widespread delays were commonplace in arbitration. Summary Judgment Rule 56 Fact law c. no genuine issue of material fact / moving party entitled to judgment as a matter of law - summary judgment used much more frequently for the defendant - if plaintiff does not have a prima facie case, defendant can get a summary judgment - what does the plaintiff have to show to avoid a summary judgment motion? Celotex case- if plaintiff doesn‟t have enough evidence, summ. j Vissier – how much evidence does the plaintiff need? Remedies DAMAGES - 11 damages are typically awarded for some past harm different from injunctions – future harm damages are compensation we compensate with money- substitutionary o this is called damages - Why? – the corrective justice (it is wrong to hurt other people, we have to compensate the injured) - Why? – the law and economics rationale (we want to give compensation to maximize productivity) Measurement of $ damages - our system emphasizes precise measurement(the individualized evaluation) - if we award too much, it is a windfall to plaintiff and penalizes the defendant - if we under compensate, it is unjust - Most common are tort and contract - Tort- civil wrongs o General damages – non-economic- pain and suffering o Special damages – economic – medical bills, lost wages.(measurement of these damages are easier) - Contract damages is always money(easier) o General – expectancy o Special – incidentals and consequentials Punitive Damages Procedural due process – safeguards = the risk of error or arbitrary punitive damages are limited by these safeguards 1. specific jury instructions 2. post – trial review 3. appellate review – Honda v. Oberg – huge punitive award, couldn‟t have post trial review. Ct. ruled must have all 3 safeguards or violation of due process. - in California you can‟t get punitive damages unless you prove by clear and convincing evidence - in the Hazlip case, as long as the system has these 3 safeguards, there is no need to overturn punitive damages Substantive Due Process Standards - proportionality review – between compensatory and punitive damages - TXO case and the BMW case – punitive damage was 1000 x‟s the compensatory damage, violated due process. - This due process system has made courts less likely to give large punitive damages. - post-trial review – remittitur(reduction) and additur(addition). SPECIFIC DAMAGES – restore Plauintiff to where he was before the loss. Injunctive Relief – equitable relief - a court order issued to stop someone or make them do something - specific remedies as opposed to substitutionary - harm-preventing remedies rather than compensating for past harm - 12 - elements for recovery of injunction 1. substantive merit 2. irreparable harm - ( unique item, D insolvent, repeated acts, damages hard to measure) 3. balancing equities Sigma Chem v. Harris (D went to work for competitor in violation of contract) - injunction granted because 1. hard to measure damages 2. D was insolvent 3. Once the secret is out the door their advantage is gone Declaratory Relief - determination of rights - preventing harm without coercion – like injunction but w/o coercion - requires natural case or controversy - used in constitutional, patent, insurance coverage cases - it is a modern remedy, since 1930 - rule 57 FRCP -example: a local theater wants to show an obscene film, but a local prosecutor has threatened to prosecute anyone who shows it. The theater owner wants to abide by law, but also wants to show the movie. He can get declaratory relief to find out his rights. ATTORNEY’S FEES Types of payment 1. flat rate 2. hourly fee 3. contingent fee 4. insurance benefits 5. public funds – legal aid, public defense Normal American Rule – each litigant pays their attorney fees. English rule – the loser pays both attorney fees. – Americans don‟t follow this because if our case was not a slam dunk, we would be afraid of suing. We don‟t discourage litigation. Exceptions (fee shifting) 1. statute – Rivera case statute §1988 – requires an additional incentive to award attorney fees - Evans v. Jeff – legal aid lawyer accepted a settlement w/ fee waiver, he could not refuse it because it would violate civil rights 2. contract – like in an apartment lease, it is two sided 3. equitable – common fund theory – if a plaintiff wins money for others(class action), the attorneys fees can be taken from that. 4. bad faith – malicious prosecution Lodestar test – how to measure attorney fees = reasonable hours x reasonable rates as judge determines Rule 68 Offer of Judgment – visiting consequences on the plaintiff who refuses what turns out to have been a good offer 13 if a settlement is rejected by plaintiff, they will be precluded from recovering post offer costs when the trial result is not better than the settlement offer. Contingency fee – the lawyer gets a part of the winnings/ the average citizen can get legal representation Provisional Remedies – an immediate need for relief Injuntions Rule 65 – to do something/refrain from doing something Requirements 1. need for immediate action 2. irreparable harm required 3. satisfy claim under relevant law 3 steps 1. Temporary restraining order [10 days] 2. preliminary injunction [last until trial] -William Inglis v. ITT Baking – Inglis would go into bankruptcy w/o prelim injun. Test is 1. P will suff irrep harm 2. P will probably prevail 3. balancing of equities 4. public interest 3. Permanent Injunction [after trial] Ex Parte – only one side is heard. Used if you don‟t want to notify because then they might complete the act you‟re trying to prevent Notice/Hearing – done by affidavits Attachments/Garnishments Attachment = seizure of property - must have notice/opportunity to be heard Fuentes v. Shevin P‟s stove/stereo reposed by replevin w/o notice. There was a right of repossession by contract, but the property interest is protected by due process. 14th Amendment: Procedural Due Process -„nor shall any state deprive any person of life, liberty or property without due process of law‟ - must have notice and opportunity to be heard before property can be taken away by a government action. PERSONAL JURISDICTION Article IV section 1 = enforcement of judgments Full Faith and Credit – if other courts had jurisdiction, other states must enforce judgments These three must be satisfied: 1. personal jurisdiction 2. subject matter jurisdiction 3. notice: service of process. 2 types of Personal Jurisdiction 1. In personam: over the person 2. In Rem: over property Pennoyer v. Neff – Mitchell sued Neff (non-resident of OR, not personally served) in OR, default for Mitchell because Neff didn‟t answer, sheriff seized Neff‟s land in OR. - 14 Court said this violates dues process, in order to have in rem jurisdiction you must attach the land prior to the lawsuit - if no personal jurisdiction, alternative is to get in rem juris (but remedy can only go as high as the property is worth) In Personam In Rem 1. Presence: personal service of process 1. D own property in state at filing of 2. Consent: general appearance lawsuit 3. Domicile: perm residence 2. seizure of property at filing of suit 4. Status: marriage (in divorce case) 3. if 1 & 2 fulfilled, no requirement of personal service Pennoyer today 1. overruled : a. exclusive territorial limits on service of process [Inter Shoe] b. presence of proerty [Shaffer] 2. upheld: a. presence [Burnham] temporary residence b. Domicile c. Status d. Consent [Carnival cruise] e. added later Minimum Contacts Objections to Personal Jurisdiction [3 options] 1. Default – if you ignore it, the court will default against you - by defaulting you can collaterally attack the validity of the judgment on personal jur - this may buy time for D, but D risks giving up the right to contest the merits later down the road if you lose 2. General Appearance – waive jurisdiction and file on the merits - personal jur is conferred by consent - this may get to the merits of the case quickly, but D is stuck with the forum 3. Special Appearance or first appearance - in CA you file a special appearance – motion to quash service of process - in Federal you file a first appearance – PJ objection must by raised in first paper filed. In Personal Jurisdiction To satisfy due process you need a. minimum contacts b. notice Minimum Contacts The test for minimum contacts: 1. Does D have purposeful activities in the forum state? 2. Is P‟s claim related to D‟s activities in the forum state? If both parts are satisfied = Specific Jurisdiciton If only 1. is satisfied = General Jurisdiction If neither is satisfied = No Jurisdiction 15 Hanson v. Denckla – deceased lady had established a trust fund in DE and moved to FL where she died, no minimum contacts found in unilateral activity of the woman mailing forms to trustee. Specific Jurisdiction International Shoe v. Washington – Shoe had salesmen in WA and did not pay state employment tax. Shoe was DE corp with PPB in MO. Court found there were 1. purposeful activities and 2. claim related to the activities. Shoe benefited from WA laws, so they should expect to be sued there McGee v. Interntl Life Ins. – bought policy in CA, co in TX bought the company. P sued in CA and got jurisdiction over TX co. Set standard of minimum contacts with just one policy [purposeful activity] and related claim. Minimum contact test for Product Liability 1. World Wide Volkswagon – car bought in NY, got in an accident in OK. Court didn‟t find any purposeful activities by D in forum state so no jurisdiction - lack of purposeful activities in forum state (advertising in state, distribution in state, shipping product in to state, selling in state) 2. Upstream product manufacturers Asahi v. Superior indemnification suit between makers of tire tubes and tube vale assembly co. Court split on reasoning but agree no min contacts so no jurisdiction - under Asahi reasonableness test can trump power test b/c if unreasonable, can‟t satisfy due process Power test/Purposeful activities (courts are split) a. Pure stream of commerce - product manuf put their goods in stream w/ anticipation they may wind up in the forum b. Stream of Commerce plus – also requires 1. advertise in market 2. design for market 3. more than passively allow Reasonableness factors – is PJ reasonable? 1. burden on D 2. Forum state‟s interest 3. P‟s interest 4. Interstate Judicial system interest 5. Shared interest of several states Burger King v. Rudzewicz – Rude breached K w/ BK in rent payments, BK[FL] sued Rude[MI] in FL. Rude purposefully availed himself of the protections of FL K law, entered into a long term K a. Federal Courts and PJ Rule 4(k) FRCP territorial limits of effective service - Are federal courts limited to boundaries like state courts? Yes - there are rules that broaden fed court jurisdiction K1 b – 100 miles from the courthouse (If you are in NY, this will get you in several states congress can extend the boundaries to the full area of the US by statute b. minimum contacts test - power test [purposeful activites] v. reasonbleness rest [5 factors] 16 the stronger the purposeful activities, the stronger the 5 factors must be for the resonableness test to trump the power test p. 146 trademark violation on the internet – if the website has interactivity in the forum state, that can make purposeful acts by the foreign defendant General Jurisdiction 1. The test for minimum contacts: 1. Does D have purposeful activities in the forum state? 2.Is P‟s claim related to D‟s activities in the forum state? If only the first part of test satisfied = general jurisdiction Perkins v. Benguet Mining – Philippines mining corp during war working in OH. P brought claim not relating to activities in OH, but their activities there were continuous and systematic, so jurisdiction permitted - Supreme court neither compels nor prohibits cts from exercising general jurisdiction Burnham v. Superior – H and W want divorce, W moved to CA. H visited kids in CA and was served. CA had jurisdiction over P but split on reason for jurisdiction over transient presence a. service of process w/in forum state 1. Scalia “Tradition” rationale – personal service recognized as valid historically 2. Brennan “modern internat‟l shoe” rationale – by visiting forum state, transient presence avails himself to benefits of state Limits of Jurisdiction Washington equipment v. Concrete Placing - Washington tried to say the Idaho business consented to gen jur. For gen jur the minimum contacts must be continuous and systematic Insurance Corp v. Bauxites – B had arranged for business insurance, insurers refused to pay. I challenged jur, court ordered discovery and I refused. Ct granted sanctions - cts have jurisdiction to establish jurisdiction [can order discovery in order to establish jurisdiction] - Rule 37 is like Rule 12 waiver 1. Personal Jurisdiction as a discovery sanction a. Presumption theory : presumes that the reason D is not providing discovery is because they have any information that will establish contacts b. Waiver theory: refusal to comply w/ discovery order, means ct can impose sanction of jurisdiction Consent to jurisdiction - alternative to minimum contacts 4 basic types of consent 1. general appearance – just file the answer on the merits 2. appointment of local agent- agent will take process for you, less used today. 3. forum selection clause – commonly used today, contractual consent 4. waiver – 1st appearance rule violation Carnival Cruise v. Shute – S bought ticket [ticket incl said all suits would be brought in FL] S slipped and fell, brought suit in WA. Ct said forum selection clause should be enforced b/c 1. cruise line has interest in centralizing claims 2. save ct/litigants time and money 3. buyers benefit from reduced prices - 17 Notice – In Personam 1. Under Due Process, aside from PJ you need - Notice - Opportunity to be heard 2. Rule 4 Summons (a)(b) Form of summons; how issued (c) how service of summons affected; by whom, w/in time limits (d) part of 1993 reform: waiver of service; who, penalty - choice of responding – cheaper than conventional service, extra time to answer (e) How you serve various people depends on status of D - for individual in US either: 1. consistent w/ state law of forum ct 2. according to fed laws incl: leave copies at home (h) corporations/associations (k) territorial limits of effective service (l) proof of service (m) time limits for service Mullane v. Central Hanover Bank – Bank was settling trust fund, ran summons in local paper. Ct ruled publication notice was enough for unknown beneficiaries, but for those known, at least mail notification was required - 14th amendment required method of notice reasonably likely to inform In Rem Personal Jurisdiction In rem - lower priority type of jurisdiction – limited to the value of property - plaintiffs only use it when they have no other choice. Rule from Pennoyer: presence of property w/in forum state is sufficient for in rem jurisdiction if properly seized Shaffer v. Heitner – [OVERTURNED PENNOYER] H filed a shareholder‟ derivative suit in DE. In order to get jur over Greyhound directors H sequestered stock/ in rem. Ct found their holdings of stock in DE do not provide contacts with DE sufficient to support jurisdiction over them, in rem jurisdiction must include minimum contacts Rule from Shaffer: requires minimum contacts btwen owner of property and forum state for in rem jur - if you have minimum contacts – pick in personam b/c then you are not limited to the value of the property - makes in rem jur obsolete except for 1. probate cases and 2. if long arm statute won‟t allow in personam jur, then in rem can be gap filler Types of in rem jurisdiction 1. Pure in rem [probate, eminent domain] - Property [involving] - Title [ct decides] - All [binding on everyone] 2. Quasi in rem #1 [quiet title, boundary dispute, landowner‟ tort] - Property [involving] - Title [major issue] - Some [only parties in lawsuit are bound] 18 3. Quasi in rem #2 [sequestration, attachment cases, where there is no question of title] (plaintiff‟s claim does not relate, no specific jur) - Property [involving] - Attachment [you concede title, that‟s why you attach it] - Some [only parties in lawsuit are bound] Shaffer Exceptions 1. judgment enforcement [pre-existing in other state] - creditor could attach property of the debtor in a state in which there aren‟t min contacts, but the creditor already had a valid judgment from a jurisdiction that had control of that D 2. Interstate attachment [take property and flee] - P could attach property in a state to which D had taken/concealed prop when there was a pending suit against D in another state that had PJ over him 3. Jurisdiction by necessiry [no where else to be sued] - if no other forum state has PJ over D, then the property state make take jurisdiction over D‟s property Long arm statute Statutes can be either full reach or specific act CA is full reach, most state statutes are specific act statutes - what would be a specific act? (the D has to rent an apartment in the state) - they often require that the minimum contacts relate to the claim If it is a specific act statute, treat it under a two step analysis: 1. is statutory jurisdiction satisfied? (if yes go on to 2) (if no, stop) 2. is statutory jurisdiction consistent with minimum contacts? Gibbons v. Brown - an accident with Ms. Gibbons and Mr. and Mrs. Brown. Ms. Gibbons filed a lawsuit in 1995 sued Mr. Brown in FL. Then, in 1997 Mrs. Brown filed a suit against Ms. Gibbon, claiming that her minimum contacts are satisfying because she sued in FL two years ago. - Mrs. Brown cited the case of Adam v. Saenger, where the minimum contact was satisfied with the filing of a lawsuit in CA. This Court says no. 4 k (1) + (2) 1 a - incorporates state court jurisdiction with long arm statutes 1 b – if the party is served w/in 100 miles of the courthouse 2 – if a D is not subject to jur in any state, he can be served as to claims under federal law 4 m – 120 day extension after filing the complaint Venue Venue tells you where within a state you can file § 1391 – venue A. controls venue in diversity cases 1. a district where any D resides, if all Ds reside in the same state (with individuals = domicile, with corporations = where they are subject to p jurisdiction) 2. a district where a substantial part of the events giving rise to the claim occur 3. a district in which any D is subject to Personal Jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought 19 B. all other civil claims that are not diversity cases 1, 2 same as A 3. district in which D may be found if nowhere else C. corporations have residence wherever they have minimum contacts D. Alien can be sued in any district Transfer of Venue and Forum Non Conveniens Transfer of Venue § 1404 – [transfer for convenience] – District ct that has proper venue can transfer to more convenient; up to courts discretion [fedfed] - provides geographic transfer form one dc w/in federal system to another in a different state or district § 1406 – [transfer for improper venue] – dc w/o venue can transfer to proper venue § 1631 – [transfer for lack of jurisdiction] Forum Non Conveniens Dismissal 1. Federal Courts – another country 2. State Courts – another state or country Piper Aircraft v. Reyno – plane made in PA crashed over Scotland killing Scots. Executor in CA wanted to sue in US b/c of tort laws. D moved suit from state ct to federal ct in CA, then to PA then dismissed for FNC. American interest in accident not sufficient to justify suit in US, easier in Scotland - Even though there was PJ, forum was too inconvenient to D/witnesses - Courts will often have Defendant waive statute of limitations or submit to jurisdiction in Scotland in the order to dismiss by FNC Factors to consider in limiting PJ 1. ease of access to proof 2. cost to witnesses 3. local interest 4. unfairness to litigants 5. avoiding conflicts with other nations Subject Matter Jurisdiction I. Constitutional Basis 1. Article III section 1: established Supreme Ct. power and power for congress to make lower courts 2. Article III section 2: limits power of Federal court to claims arising from: - Constitution, Federal Statutes - Treaties - When the US is a party - Two or more states/citizens of two states - Between citizens and aliens Two categories: cases that arise under federal law and cases between citizens of different states – are by far the most common cases in federal court 3. Constitutional [Broader] v. Statutory [Higher threshold] Jurisdiction - under Article III – the minimum requirement is a federal issue(broad) - conclusive = shared jurisdiction between federal/state ct 20 Statutory Jurisdiction (more narrow) § 1331 – General Federal Question (Concurrent) “case arising under the Constitution” § 1332 – Diversity (Concurrent) diversity of citizenship and >$75,000 damages § 1333 – Admiralty (Exclusive) § 1334 – Bankruptcy (Exclusive) Federal Question Jurisdiction What does “arising under” mean? Louisville RR v. Mottley Case - an injured couple got lifetime pass for rides on the RR to settle litigation. Afterwards, Congress outlaws free passes. Mottley‟s sued in federal ct and allege: 1. the statute does not prohibit use of their pass and 2. if it prohibits their pass, that violates due process. (They tried to anticipate the defense of the RR) - the Supreme court raised the issue of jurisdiction, not the parties - most other issues can be waived if they get to this point, and they won‟t be ruled on by the court. However, this does not apply to subject matter jurisdiction. - In order to satisfy SMJ, the plaintiff has to have a prima facie case arising out of federal question. It is not enough that the suit deals with a federal issue or the defense will have a federal issue Well pleaded complaint rule = the federal issue must be in the Plaintiff‟s statement of his own claim, not from any anticipated defenses the D might assert The defense of lack of subject matter jurisdiction can be raised by the court at any time during the case – Rule 12 h (3) – “whenever it appears that the court lacks subject matter jurisdiction, the court shall dismiss the action” (can be raised by parties or the court) [this can be raised on appeal] Diversity of Citizenship – between citizens of different states, between a citizen of a state and foreign states Constitutional Jurisdiction requires [minimal diversity] – you can have 9 from AZ and 1 from CA against 1 D from AZ Statutory Jurisdiction requires [complete diversity] – no plaintiff can be from the same state as any defendant, no D can be from the same state as any P (if you have 1 CA v. 1 NV = valid; if you have 1 CA v. 1 NV + 1CA= not complete jur) In this area lie cases in which some parties are diverse, but not complete diversity. Also $ requirement not met Scope of possible diversity jur under Article III §2 Scope of diversity jur under statute §1332 Ct will look at 1. complete diversity- post filing changes in the domicile of the parties does not change diversity 2. amount in controversy - greater than $75,000 1. Complete Diversity § 1332 - diversity of citizenship 21 A. cases can be between: 1. citizens of different states 2. citizens of a state and citizens of a foreign state (Mas v. Perry) 3. citizens of different states and in which foreign citizens are additional parties( 1 Ca and 1 France v. 1 NV and 1 Mexico) * alien admitted to the US for permanent residence shall be deemed a citizen of the state in which such alien is domiciled Citizen if: 1. US citizen – born here or naturalized and 2. domiciliary of the state (actual residence + intent to remain) - you keep your old domicile until you acquire a new one - domicile = permanent residence IF non US citizen – country of citizenship on passport determines status C. Corporations – deemed a citizen of 1. state of incorporation and 2. PPB state (this limits places they can be sued) - PPB can be a hard place to determine. - Use Nerve center test = where the officers meet or the Muscle test = production, manufacturing plants D “States” includes territories and District of Columbia Mas v. Perry – husband from France and Wife from MS are students in LA. Their landlord in LA spied on them. - Does the wife have diversity of jurisdiction? - The wife was born in MS, her parents home is there- You have to have actual residence and intent to remain – students are regarded as temporarily in LA, not residents - So she keeps the old domicile of MS until she establishes a new one. - here we have both A1 and A2 jurisdiction - Generally when a wife is married, her state citizenship is deemed to be that of her husband, but not in this case b/c that would make them both foriegn Saadeh v. Farouki – P is from Greece and D is from Jordan who was a permanent resident of MD. Does §1332 A make D a citizen that can be sued by P? Ct says no, D would be construed as a citizen of MA in order to restrict jurisdiction, and we won‟t apply it to expand jurisdiction. - the ct interpreted the statute in a manner that seemed to go against its literal language. - They look at legislative history to find to purpose of the statute 2. Amount in Controversy When is it not enough to satisfy amount? Legal certainty test – if it is clear “to a legal certainty” that you can not recover the amount($75,000), then you cannot bring the case. If there is some doubt, then there is jurisdiction and we go on and decide on the merits - if you are suing for a breach of $50,000, you do not have jurisdiction. But if you add a claim of $50,000 for punitive damages that is well founded, the court could accept it. When can we merge claims? (aggregation) 1. single P, single D 22 2. multiple claims P1 and P2, one D (what if one claim falls below the amount in controversy?) - if they are common and undivided claims - it is not enough that the claims relate, they have to arise out of an undivided interest P sues M on 2 claims, one 5,000 and another 72,000. P can aggregate all claims for purposes of satisfying amount in controversy M and F sue P, M has claim for 60,000. F sues for 40,000. No jurisdiction because we can‟t aggregate the claims because multiple plaintiff and claims don‟t relate P and M each sue G for invasion of privacy, each seeking 50,000. The courts are not clear about whether this is valid. Supplemental Jurisdiction - here the courts subject matter jurisdiction is broadened Pendant Claim It is OK for P to join 1. one federal claim and 2. one related state law claim United Mine Workers v. Gibbs – violent dispute between mine workers and a mine operator. Union – the right to collectively bargain. Gibbs lost business because of the mine workers strikes, so he sued the union. - Gibbs had two claims against Union, 1. based on fed law secondary boycott 303 and 2. state claim of tort against boycott to interfere with his business. - The claims must arise from a common nucleus of operative facts. (cnof test) - If they would be expected to be in one judicial proceeding and assume substantiality of federal issues, then fed court has power to hear the whole - Is the cnof test met here? Yes, the laws both address the boycott and its damage to his business. You need to find a link or nexus between the claims. Federal Question P CNOF State Claim (no independ basis for fed SMJ) Pendant Party P CA 1. Federal Question D1 CNOF D 1. Federal claim? 2. State claim? 3. are they related? 2. state claim D2 CA 23 Finley v. US – although court found that this was not allowed, it was later allowed under §1367 (a) Ancillary Claim – When D joins a non-diverse D under a joinder P[CA] Claim 1 D1 [AZ] D2 [AZ] This is allowed if the Ds are nondiverse Owen hypo – fails b/c inconsistent with complete diversity under 1332, not supplemental 1. diversity +$100,000 D1 NV 2. made a party under rule 14 diversity + $100,000 D2 CA Codified in Section 1367 A. – authorize fed ct to hear a related claim [CNOF] to the parties. You need one claim that meets fed requirements, and the other claim forms part of the same controversy. This includes claims that involve joinder or intervention of parties (pendent claims/ parties) B. – diversity limits. Ct shall not have jur on claims against parties joined under circumstances when hearing the claim would be inconsistent with complete diversity §1332. C. – Discretionary Factors. i. complex issue of state law ii. state claim predominates. iii. federal claim has been dismissed. iv. exceptional circumstances D. tolling of SOL Removal Jurisdiction - the allows the D to remove the case from the state court to federal court, but only if the case could have originally been filed by P in federal court §1441 – Removal from state courts a. any civil case brought in a state ct where district ct has original jur may be removed by D to the appropriate district ct b. On federal question cases, you can remove the case to any federal district. In Diversity cases, shall be removable only if none of the parties in interest P CA No diversity 24 is a citizen of a state in which such action is brought (if D is NV and P is CA, and P files in NV state ct, D can‟t remove to federal ct in NV) c. Removal against a foreign state e. Fed Ct removed to is not precluded from hearing a claim because the state ct did not have jurisdiction over that claim §1446 - Procedure for Removal a. D that wants to remove sends a notice containing the ground for removal (pursuant to rule 11), to the federal court b. Timing requirements. Removal shall be filed w/I 30 days after service. If the pleading is amended, notice of removal shall be given w/I 30 days of that pleading, unless 1 year has passed since the beginning of the suit. d. D must give written notice of removal to all adverse parties and the ct clerk §1447 – Procedure after removal a. confers authority to federal ct to bring all parties from the state court b. it can order D to bring state court records c. motion to remand by Plaintiff must be w/I 30 days from notice of removal. If at any time it appears that the district ct lacks subject matter jurisdiction, the case shall be remanded d. appealability issues – and order remanding to state ct is not appealable e. if P seeks to join additional defendants whose joinder would destroy SMJ, the ct may deny or permit joinder Caterpiller v. Lewis - P is from KY, filed against D1 in DE and D2 in KY. P2(Liberty Mutual) enters the lawsuit from MA as a plaintiff. D2 later drops out of the suit, and D1 tried to remove. 1. action filed in state ct 2. removed based on diversity of citizenship 3. P moved to remand, denied 4. settlement with non diverse D dismissed that party 5. diversity of citizenship satisfied case tried to judgment for D 6. appeal to ct app = judgment vacated, no summary judgment 7. supreme ct grants cert. And reverses ct app. - not having complete diversity at removal is not fatal to that removal The Erie Problem When a federal court sits in diversity jurisdiction, where does it look for its sources of law? Rules of Decision Act §1652: The laws of the several states, except where the Constitution or Acts of congress otherwise require, shall be regarded as rules of decisions in civil actions in the court of the US. What does “laws of the several states” mean? Swift v. Tyson – is the bill of exchange subject to NY substantive law? 1. Court said “laws of the several states” means state statutes and real property decision, but not local court decisions 25 2. The federal ct was free to decide what it thought was the better law - philosophy of natural law. “Law is not one thing in Rome and another in Athens.” 3. Problems. a. forum shopping b. discrimination against state citizens in diversity cases Black & White Taxi v. Brown & Yellow Taxi – since KY state ct would not hear case, P reincorporated in TN to bring a diversity suit in federal court Over ruled by Erie Erie RR v. Tompkins - man injured by railroad door as he was walking by the track in PA. PA tort law had a lower standard of care required of the RR. P sued in NY federal ct, hoping to invoke NY tort law instead. P was a trespasser 26