CIVIL PROCEDURE OUTLINE[1]

Civil Procedure Outline Personal Jurisdiction A. Personal Jurisdiction tells us which state a case can be brought. a. Rule 12(b)(2)= lack of personal jurisdiction B. Subject matter Jurisdiction depends on the location of both the partiesa. Rule 12(b)(1)= lack of subject matter jurisdiction C. venue tells us in which district a case can be brought a. Rule 12(b)(3) on improper venue -Gordon v. Steele: -Gordon was injured in an operation by  Steele while in PA -Gordon then moved to ID for college. -Gordon filed in Federal Court citing personal jurisdiction because she claimed residency there. - filed for lack of diversity -motion denied, rule= Intent to remain is subjective, instead, rely on voting record, business practice, taxes paid, residence, etc. Intention at the time of arrival is what‟s important, not later circumstances -28 U.S.C. §1332(a)(1): district courts shall have original jurisdiction over cases with citizens of different state II. Stating the Case A. The Lawyer‟s responsibility 1. Law: lawyers must know what type of law to base the case on (ie, common law, writs, federal/state cases). Also must recognize the law component of the case 2. Specific Fact Invoking: Plead the ultimate facts. Give enough information so u know what the claim is about. U don‟t need all the fact 3. Strategy: know which court to try the case in and why -Bridges v. Diesel Services -‟s atty submitted complaint without first filing a complaint w/EEOC - moved for sanction against atty, sanction were denied but atty‟s bad conduct was reinforced -Rule 11: by submitting a filing to court party is certifying that claims are warranted, not improper, based on factual merit, good faith legal merit B. The Complaint -Bell v. Novick Transfer Co. I. - moved for dismissal under Rule 12 (says basically that u don’t have a valid claim), saying the claim was too vague -How much does a plaintiff need to state about the nature of the claim? -Rule 8: a short and plain statement of the claim showing that the pleader is entitled to relief C. The Response: defense to the claim/action -2 ways to respond: 1) motion attacking the summons & complaint 2) an answer -Preanswer motions: motions submitted to the court to take action 1)  may claim that the case doesn‟t belong in the court or that the claim should not proceed 2)  may claim that  has no right to recover even though facts appear to be true 3)  may be unaware of the claim and motion for a more definite statement -Answers: if  does not make a preanswer motion, he must answer Rule 7(a), 12(a) -Counterclaim:  can also answer in the form of a counterclaim: 1) Compulsory counterclaim: arise out of same transaction/occurrence as ‟s claim 2) Permissive counterclaim: does not arise out of the same transaction as ‟s claim D. Amendments to complaints: cases may be amended, not set in stone. Rule 15(a): basic amendment rules Rule 15(b): amendments introduced during trial to reflect new evidence Rule 15(c): amendments imposed after a Statue of Limitations (SOL) Parties to the Lawsuit E. Permissive Joinder: Rule 20;  has a choice as to who to list as co-/co- F. Compulsory Joinder: court orders a party to join the suit Temple v. Synthes Corp. -Court ordered  to join doctor and hospital as co- -a tortfeasor with the usual “joint-and-several” liability is merely a permissive party to an action against another with like liability III. IV. -Lower court erred in forcing the  to join ‟s and in dismissing it because he failed to do so. Discovery -parties must reveal to each other certain basic information about the case, unless otherwise ordered -parties can use Rule 32 to demand specified document, which the opposing party must present -parties may request oral depositions: anyone w/info about the case may be deposed, and atty must serve a notice or subpoena upon the person. -Written Interrogatories, Rule 33: written questions to be answered by the opposing party (cant be used against non-party witness) -Physical and Mental Exams may be requested by atty and granted from court Rule 35 -Rule 26 governs discovery methods -Butler v. Rigby -medical company AMG/MHC moved for a protective order not to reveal some medical docs. claiming that they protected, irrelevant, and burdensome -Court ruled that some are permissible, protected docs aren‟t, and  had to pay for some. -Rule 26: discovery may be limited if court determines that it is unreasonably cumulative or duplicative. -parties can get info from people not directly implicated in a case Summary Judgment: a mechanism for deciding cases where trials aren‟t necessary and wouldn‟t serve a purpose. -Rule 56: a party may make a motion for summary judgment at any point in the proceedings -Rule 56(f): decision for summary judgment will be delayed if an opposing party has not been able to complete discovery -Rule 56(c): if party moving for SJ shows there is no issue on any general material fact then the SJ should be granted -Houchens v. American Home - made motion for SJ.  declared her husband dead, but assumed this, based on no facts/evidence -there was no unresolved facts, motion for SJ was affirmed - (opposing party to the motion) has burden of proof V. VI. Celotex v. Catrett -P brought suit alleging that husband died from asbestos - sought motion for summary judgment based on lack of evidence in discovery that  was the cause of death.  showed evidence after motion was filed…too late -reversed lower courts allowance of motion, and remanded it based on the fact that there might have been disputed facts Visser v. Packer Engineering - brought suit alleging termination was age discrimination - brought motion 4 summary judgment, alleging  brough no evidence that he was fired because of his age, just other factors. -Court agreed.  showed burden of proof that  would‟ve been fired anyways -Dissent said he might‟ve produced evidence that led to firing based on pension bonuses. Trial A. Judgment as a matter of Law (direct verdict): Rule 56(a): even if all evidence  offers is true, there is no specific right to relief - usually makes thus motion claiming that  has not satisfied burden of proof B. after verdict, party can again make a motion for Judgment Notwithstanding the verdict. C. Motion for a new trial must be made on error of the law, erroneous charge, or verdict being against the evidence Norton v. Snapper -Court issued a judgment notwithstanding the verdict because there was insufficient evidence presented to the jury to find a defect in the lawnmower Pleadings -Pleadings contain 2 elements: 1) invokes some body of the law and 2) it relates the facts to the body of law -Pleadings often fail because: 1) they fail to relate the facts to the body of law or 2) the law doesn‟t afford a remedy kinds of pleadings: 1) common law: California form of pleading 2) code pleading: Cal. state courts -ultimate facts more detail and facts sufficient to constitute a cause of action 3) Notice of pleading: federal courts: short and plain statement of claim -People/Dept of Transportation v. Superior Court: - filed for a demurrer stating no reasons for circumstances -Court denied it because it was filed with a Judicial Council Form that did not give notice of the cause of action -Court reversed and remanded the demurrer w/leave to amend in order for  to state a more specific cause of action -Haddle v. Garrison: - conspired w/federal criminal trial against , and claims he was terminated because of this and because he was an at will employee violating 42 USC1985 - filed for demurrer stating failure to state a claim Rule 12(b)(6), -lower court upheld demurrer but Supreme Court overruled and remanded because the termination may have caused injury to person/property -policy to protect intimidation against federal workers for testifying in fed. Court. A. Lawyer misconduct -Rule 11: determines punishment and explanation of misconduct -Business Guides v. Chromatic Comm. Enterprises -Court issued sanctions against ‟s lawyer for filing unresearched claims ( publishes directories) - said they were erroneous/accident, magistrate upheld, but District court dismissed actions w/prejudice and imposed sanctions - stated false information to the court which Sup. Court upheld -Rule 11(b): by signing the pleading, u assert that Representations to Court are -11(b)(1): filed for an improper purpose -11(b)(2): there is legal merit in the claims -11(b)(3): there is factual merit -11(b)(4): denials are based on factual merit -Rule 11(c): is a safe harbor which allows the atty to file sanctions against a motion, thereby allowing opposing counsel to withdraw the motion -Religious Technology Center v. Gerbode - argues that ‟s use of the RICO laws are frivolous and lave no legal merit under Rule 11(b)(2) -‟s lawyers didn‟t do research, and had the intent of making  pay for frivolous matters. -Court issued sanctions on the atty, not the clients or co-counsel -Olsen v. Pratt & Whitney - was terminated by employer  who enticed him to take an early retirement program - filed a number of claims which were dismissed except for fraud claim. -fraud claims were conclusory and lacking particulars, which is against Rule 9(b): in averments of fraud or mistake, the circumstances constituting fraud shall be stated with particularity. -the court agreed with dismissal of lower court, but remanded w/leave to amend VII. Civil Rights and Disfavored Claims A. necessities for a frima facie case under §1983 are: 1) every  2) whose federal rights are violated 3) by a public official  4) Acting under color of state‟s law 5) Is entitled to remedies eatherman v. Tarrant County Narcotics -‟s house was broken into by Feds, who assaulted them and killed dogs -42 USC §1983 permits suits against officials if they deprive constitutional rights. -Gov officials have immunity in some areas, however, if they believe they acted under good faith of the law. -Issue here was if court could apply a heightened pleading standard to a case of municipal liability? NO, cant. Just a plain and short statement Gomez v. Toledo -Gomez worked for the police in Puerto Rico and was fired in bad faith for going along w/investigation -Gomez filed under §1983 -Should  answer w/good faith as an affirmative defense? Burden is on  (Rule 8c) to show good faith. -Should Gomez allege bad faith in the complaint to state a claim for relief? Rule 8 VIII. Responding to the Complaint A. ‟s possible reactions to a complaint include: 1) reasons why the court shouldn‟t proceed with the action 2) questions as to if the complaint, even if true, provides a basis for legal relief 3) denials 4) affirmative defenses 5) requests for clarification and/or more info B. Rule 8: -8(a): claim shall contain a short and plain statement and a demand for judgment for relief that pleader seeks -8(b) Negative Defenses: Admissions, denials, etc. must respond to the substance of the complaint, and they must be specific about the denials so  can form an answer -8(c) Affirmative Defenses: (incl. SOL, contributory negligence, etc.): these must be raised by  if they are to be an issue in the case -8(d) Failure to Deny=Admission: if u don‟t deny something, then its admitted and treated as true -8(e) Consistency: litigants can be inconsistent with claims because lawyers and clients don‟t yet have all the facts C. Rule 12 -(a): addresses when the answer shall be served (20, 60, 90 days) -(b): Motion to Dismiss: authorizes as an alternative to pre-trial motion, a motion to dismiss -this helps retain valuable information, saves time/$, and may allow judge to enter an early ruling -Points and authorities have to be included w/factual support - often gets leave to amend -(c): Motion for Judgment on the pleadings -(d): Hearing requirements for motions -(e): Motion for a more definite statement -(f): Motion to Strike: for scandalous or other parts of the complaint -(g): allows for a consolidated motion -(h): Timing of raising defenses: 1. some have to be raised in 1 st appearance 2. some raised by the time of trial 3. some raised anytime before judgment Zeilinski v. Philadelphia Piers -forklift hit . Forklift was owned by Carload Contractors, not  - answered complaint denying that their f-lift hit the man - thought they were denying negligence -Court said  should file a more specific response, not just general denial - need to know how to prepare a proper response, and it might deny him a right to proper action Layman v. Southwestern Bell - alleges that  trespassed on prop. to install cable lines - responds with easement defense which is affirmative -test for affirmative defense is whether the  intends to rest his defense upon some fact not included in the allegations necessary to support the ‟s case. -most affirmative defenses need discovery, and are not usually easily dismissed Amendments to Pleadings A. amendments are added as new facts come to light in a trial. B. Rule 15: 15(a): pretrial amendments: u can only amend pleading w/in 20 days -Leave to amend shall be given freely/liberally 15(b): Trial Amendments: addresses problem of varience -where proof at trial departs from the issues originally pled -court doesn‟t want to prejudice the opposing party 15(c): Relation back of amendments, SOL -SOL creates limitations to amendments -CTRO, conduct, transaction, occurrence 15(d): Supplemental Pleadings: post complaint facts Beeck v. Aquaslide - initially admitted that they did not manufacture the slide that  was injured on - then sought leave to amend the answer to say that they did make it IX. -Court granted even though ‟s objected because SOL ran on others that they could sue. -Rule 15(a): leave to amend granted liberally. -The court didn‟t want to prejudice the  against a slide they didn‟t make, even though it might‟ve dispositioned the  Moore v. Baker - sued doctor for failure to advise her of alternative therapy -She tried to amend her claim to add negligence -Court denied her motion to amend because it did not relate back to the original claim. (Rule 15(c)) X. Alternatives to Trial A. Alternative Adjudication -Summary Judgment -Rule 12(b)(6) dismissal -Default Judgment/Involuntary Dismissal B. Default Judgment -Rule 55(a): Entry of Default Judgment when a party ignores a complaint -Rule 55(b)(1)(2): entry can be submitted to clerk or court -party seeking default jdgmnt must show affidavit that party hasn‟t responded -helps to establish the claim quicker and easier, but often damages are not assessed. Plus people do not take the law into their own hands this way. -Rule 55(c): safety valve allows default judgment to be set aside if the answer is not given in good faith. C. Involuntary Dismissal: When  sits on the complaint and doesn‟t act -Rule 60(b): allows a court to set aside default judgment in a case that involuntary negligence on the atty‟s part, fraud, or new evidence Peralta v. Heights Medical -Appelle, , sued  to recover damages - never answered, and default judgment was issued - claims that he never received proper service and that it was longer than the 90 day SOL. -Court said that he had to show merit why there shouldn‟t be Summ. Judgment? -This however was wrong, he was denied Due Process, and didn‟t have to necessarily show merit Community Dental Services v. Tani -‟s atty was grossly negligent of ‟s claims - filed motion for default judgment -Court reasoned that ‟s attys were beyond his knowledge, thus no negligence and default judgment was overturned D. Voluntary and Involuntary Dismissal -Voluntary Dismissal: dismissal w/out prejudice.  can dismiss the refile the complaint again -Involuntary Dismissal: failure of the  to comply w/the rules of the court.  may move for dismissal. Cant refile because its treated as adjudication on the merits XI. Meditation and Coercion A. Why is mediation sometimes used: 1) to find out how much one party is willing to pay or accept 2) to make client fully aware of their settlement options 3) to give the clients a chance to tell their stories to an impartial jury, albeit non-binding 4) to see if the need for “cover” is necessary B. Arbitration: a way for parties to settle w/out the court, quicker, cheaper, w/experts on issues, and w/out as strict followance of the law -Rule 16: the authority of Federal Court to order atty, parties, etc. to settlement conferences, and imposes sanctions for their refusal -Summary Jury Trial: gives parties a reality check about how much damages are likely to be Armendariz v. Foundation Health - sued  for sexual harassment - filed motion to compel to arbitration that was in signed agreement -Does  have to bind to arbitration? No - has better access to discovery, plus it was a FEHA claim, Title VII -in addition, court said that making  pay for costs is unfair 4 basic requirements to seek vindication in court are: 1) neutral arbitrator 2) adequate discovery 3) limited judicial review 4) limitations on the costs of arbitration Lockhart v. Patel - was awarded damages for medical malpratice -At pretrial settlement conferences, ‟s insurance co. sent a low level representative to present a small $ figure that couldn‟t be negotiated -Court held  in default, ordered higher level reps there -‟s reps showed up, apologized and settled Ferguson v. Writers Guild - suing for exclusive writing credits -Writers Guild has an arbitration system for disputes -Court reasoned it had no excuse to take this case. - did not exhaust his remedies (appeal to policy board), and the court has limited judicial review Engalla v. Permanente - sought separate court proceedings outside of ‟s arbitration system - claims that according to ‟s systems, arbitrators are to be chosed w/in 30 or 60 days, and here it took much longer. -Court said this was fraudulent but not unconscionable cause they made fair effort to get unbiased arbitrators. Haas v. .San Bernardino - lost license to run message parlor - claims the ruling was exceedingly unfair, and that arbitration process is biased, sought administrative mandamus - claimed that his Due Process was denied because the county used arbitrators who were biased based on their financial stake in the proceedings -Court agreed XII. Remedies A. Damages can be $ substitute for losses suffered. Types of losses: 1) $ 2) things $ can buy (replacements): econ. losses 3) things $ cant buy: wrongful death, emotional, et -Aristotelian Rightful Position theory: trying to put  in rightful position based on what was lost. -we try not to award too much as to wrongfully punish or create a windfall U.S. v. Hatahly -US seized Indians‟ horses/burros -Court awarded damages but revised because the judges as biased on ddamage awards, and some of the awards were arbitrarily gotten at w/out evidence -judges issued damages here and this proved problematic Carey v. Piphus - was suspended for smoking weed at school w/out proper Due Process - sought substantial nonpunitive damages but failed to show evidence as to why these were deserved. Nominal damages were awarded -remanded case to show that constitutional rights had been withheld, if any B. Punitive Damages -Purpose is to punish and deter future conduct Common Law Factors: 1) malice: how bad was ‟s conduct 2) How wealthy is  3) Compare to compensatory damages 4) Amount needed to deter future conduct C. 3 elements to Procedural Safeguards: 1) Jury Instructions: proper guidance how to decide awards 2) Post Trial Review 3) Appellate Review: right to challenge a jury/judicial decision D. 3 elements to Substantive Due Process: 1) How bad were ‟s acts 2) How do punitive damages relate to amount of compensatory damages 3) Punitive Damages v. Civil Penalties Honda Motor Co. v. Oberg -Honda made malfunctioning 3-wheeled vehicles that injured Oberg -Oberg got $1 mil. Compensatory, 5 mil punitive -Honda appealed „cause Oregon had no Judicial Review Process -reversed and remanded with instructions to adopt Judicial Review BMW v. Gore -BMW repaired cars form acid rain damage which lowered value of Gore‟s car. -Gore was awarded 4,000 comp. & 2 mil punitive! -Court found that damages were grossly excessive when only economic loss was suffered. -Dissent said that there was insufficient Const. reason for the court to take the case and it would interfere w/state authority XIII. Equitable Remedies A. Specific Relief: a way to give claimants what they want/need rather than $ 1) Substantive Merit: the part of the law that gives someone the right to equitable merit 2) Irreparable Harm: 1. Unique Items: u cant buy adequate replacement w/$ 2. Repeated acts: equity court will stop a specific harm instead of having to go to court every time 3.  is insolvent:  might not have $ to pay a judgment against him 4. Damages are too harm to measure: courts will grant damages order (ie intellectual property) 5. Balancing equities (hardship to  vs. hardship to ) -Sigma v. Harris - sought injunctive order against ‟s new employment at a different chemical company so that  wouldn‟t divulge secrets/info. -Court granted injunctive relief to  based on balancing the harm it would do to both sides.  would suffer business loss, B. C. D. E. F. but  could get a job in 2 years, and the job would be readily available then. Attorney‟s Fees 1) flat fee 2) Hourly rate: most widely used 3) Contingent fee: used most in tort litigation 4) Value Billing: based on good work 5) Legal Aid: pro bono, public defenders Rule 68: Settlement offers 1) No post offer costs.  cant recover the difference that was initially rejected by him. 2) Post offer atty fees are allowed, if fee shifting is allowed Normal American Rule: each party pays its own atty fees, as opposed to looser paying -we don‟t want to discourage people from suing and hiring attys -creates equity for people who cant afford cases Fee Shifting Exceptions: 1) Statutory: Congress/Legislature authorizes fees shifting ie civil rights cases 2) Contract: parties can contract fee shifting provisions 3) Equitable: Funds for class action cases 4) Bad Faith: litigants who file frivolous lawsuits 5) Family Law: economically weaker party can recover fees -Evans. v. Jeff: - sued for injunctive relied to improve treatment of handicapped kids - made generous offer to settle and  accepted it but it was w/o atty fees -court said that it wasn‟t improper to allow waiver of atty fees because the atty has an ethical duty to accept settlements on clients behalf -§ 1988 also allowed for it Coercive Remedies: to get a party to refrain from specific acts -Preliminary Injunction: party seeking injunction seeks a preliminary stay of order to get a party to refrain from an act -Test to see if injunction will be allowed: 1) u have to show probable merit 2) show Irreparable harm pending trial 3) Courts Balance the hardships to each party 4) Would the injunction be in the public interest -Inglis v. Continental Baking Co. - sought injunctive order to stop  from cost cutting their bread prices, charged it was a monopoly. -Court initially denied the order by reasoning that  will not prevail on the merits -This was reversed when the court later reasoned that the burden on the moving party is only to show that there is a fair chance of success of the merits in order to consider the injunctive relief G. Seizure Remedies: attachment and garnishment -whereby property is seized in order to protect the other party‟s rights -arises out of a need to protect property from being destroyed perhaps to get such an order u have to show: 1) Probable merit 2) Ex Parte Irreparable harm 3) Notice of hearing has to be given 4) There has to be a contract to show that the case is allowable 5) U have to show a need for attachment -Whats the difference btwn garnishment/attachment? -Attachment property is in possession of the party -Garnishment property is in possession of a 3 rd party (usually bank/employer). Repossession might also occur if so stipulated Fuentes v. Shevin - bought some stuff w/a conditional sales K from Firestone - was late on her payments and  sought order for replevin to repossess the goods - claims this violated her 14 th Amendments rights that no one shall deprive her of property w/o due process of law. -Court reasoned that this did violate 14 th Amend. -court said that a hearing must be granted first w/proper notification -Court noted though that right to be heard before possession doesn‟t guarantee that one will prevail PERSONAL JURISDICTION: -Where can a  be sued? -There must be proper jurisdiction over  and there must be proper service -Service: service must take effect w/in the boundaries of the state where the court is located. -Alternative ways of establishing jurisdiction 1. Presence: find  and serve them w/in state 2. Property 3. Consent: ie someone willfully accepts summons on behalf of the other party 4. Domicile 5. Status -How to challenge PJ? 1. Default or Collateral attack: if u default, however, then u cannot challenge SJ on the merits 2. U can also respond on the merits 3. u can make special appearance(CRCP)/1 st Appearance(FRCP)= court can apply incorrect jurisdiction if u fail to raise it in defense - Must have minimum contacts in the forum state: a. prove this by showing  has a purposeful activity in the forum state b. prove that ‟s claim relates to ‟s activity in the forum state -Pennoyer v. Neff: Neff not a resident nor served in OR. OR attached his land to serve a judgment for . Court said not ok! OR did not have personal jurisdiction of Neff -International Shoe:  wanted to get wages/taxes from Shoe Co. for doing business in Wash. This case shows: Minimum Contacts Test: 1. Does D have purposeful activities in the forum state? (systematic and continuous activities/presence?) 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 - Reasonable test for establishing Jurisdiction: added factors for the court to look at when considering minimum contacts for Jurisdiction 1) What is the Burden on  2) What is the ‟s interest 3) What is the Forum state‟s interest 4) Interstate Jurisdiction system (efficiency) 5) Several states (what substantive law applies) Stream of commerce test: when ‟s products extend into the stream of commerce 1. Did  intent to purposely direct the products into the forum state? 2. What was the forseeability that the goods would enter into the flow of commerce? 3. Reasonability: what is the burden on  to defend in the forum state IN REM JURISDICTION: -General Rule: a  can base jurisdiction over  in a forum state based on the ‟s property in the forum state. According to Pennoyer v. Neff, w/in 90-180 daysm  could assert in rem jurisdiction even if personal jurisdiction was available. -Now, ‟s tend only to choose in rem jurisdiction when personal jurisdiction is not available -IF a  asserts in rem jurisdiction over a ‟s property,  must have title or equity interest in that prop at the time the lawsuit commences -In Rem Jurisdiction requires: (Shaffer case said there must be more than minimum contacts to establish in rem jurisdiction) 1. ‟s purposeful activity in forum state (general jurisdiction) 2. ‟s claim relates to ‟s purposeful activity (specific jurisdiction) Types of In Rem Jurisdiction: 1) PTA: Property, Title All (rights of the entire world are adjudicated). 2) PTS (quasi #1): Property, Title, State: -When the dispute involves the rights of the parties in the property itself, jurisdiction based upon the presence of the prop in a state is ok. ie tort claim vs landowner, boundary disputes, title proceeding 3) PAS (quasi#2): Property, Attachment, Sum; the most problematic under the min contacts test -here, the court does not decide title interests in prop, but ‟s ownership interests in the prop provides ‟s basis to attach the prop in a suit. Only parties in suit are bound by the judgment SERVICE OF PROCESS: A. Service of Process is an essential step to establishing proper jurisdiction B. Service of Process: 1. Perfects Personal Jurisdiction 2. Provides Notice to parties 3. Satisfies Procedural Requirement for service C. Mullane Test: u have to take the most available/necessary steps to notify party of process that are available D. FRCP Rule 4: 4(a): when/what party has to say in reply to a summons. Embodies the court‟s authority. Gives court power if a  blows it off. 4(c ): Time period of service…usually 120 days, but can be extended for good cause. 4c2: who can serve process. Person of 18 years, process servor, not a party of the lawsuit 4(2)(d): enables service by mail (waiver of service) 42d1= waiver of service 42d2= who can be served by waiver of service, what is their duty -if  doesn‟t oblige the court can impose costs for special process (unless they can show good cause) and reply upon the  42d3: gives additional time requirements for ‟s served by waiver of process 4(2)(i): service of process to US. Cant use service of process against US gov‟t. 4(e): service on an individual in US (adults) -u can serve under state law means (St. civ. Pro. Rules) -u can serve to a relative or house… 4(f): Service on a Foreign Country -Hague Conv. Decided the means -If no treaty or int‟l means, then service has to be reasonably calculated (Mullane) -or by another means that court may direct….thus theres a variety of options 4(g): person who is incompetent in US 4(h): Corporations, small businesses, or associations -if in US, then u can use methods of state law -or u can give it to an agent authorized to take it 4(i): against US govt -u have to deliver it to the US atty of the state -U have to send copy to US atty in D.C. 4(j): foreign gov‟t or state entity 4(k): territorial limits of effective service -what the scope of jurisdiction is for Fed Courts, usually the same as the state crt -4(k)(1)(A): allows for long arm statute 4(l): Proof of service: requires u to serve proper service 4(m): time limits of service after complaint has been filed E. Service of Process Timeline: Timeline: 1) Claim Filed First 2) Summons issued 3) Service of process w/in 120 days (extended w/good cause) 4)  has 20 days after service to answer OR 1)  sends (mails) waiver of service to  2)  has reasonable time, at least 30 days (from the date waiver was sent), to decide to accept waiver 3) If yes,  has 60 days to answer, and 90 if outside US If no,  has to serve , and  bears the cost of the personal servor LONG ARM STATUTES: A. Provides parties/court to exercise jurisdiction over non-residents B. 2 steps: 1) Statutory Jurisdiction (LAS) 2) Constitutional Jurisdiction (Minimum Contacts) C. Statutory Jurisdiction is more limited than just constitutional jurisdiction test D. Specific Act Statutes often require more than a minimum contacts test, and often only specific jurisdiction is allowed (not general) Venue: A. Refers to the place of trial w/in a state B. With federal court, venue = district courts (4 in Cali); w/state court= county court (52 in cali) C. USC § 1391: 2 alternatives for venue statute, depending on diversity jurisdiction…(a)=for diversity only, (b)=hybrid (a case where there‟s both a federal question and diversity question). D. Under USC §1391 in what federal district can u bring a claim?: -a(1): District where  resides, only if all ’s reside in same state -a(2): District substitute where out of court events or omissions relating to the claim occurred -a(3): District where  is subject to personal jurisdiction (u can only claim a(3) if u cannot satisfy a(1) and/or a(2)) -b(1): if case is not just a diversity claim, it can be brought in district where  resides, only if all ‟s reside in the same state -b(2): District substitute where out of court events or omissions relating to a claim occurred, or where prop is located -b(3): any district where  can be found, only if there is b(1)/(2) cannot be satisfied -c: Corporations are subject to jurisdiction where they would be subject to personal jurisdiction, i.e. where they conduct business -d: An alien can be sued in any district, so long as it satisfies personal jurisdiction. Same applies to alien corporations F. Transfer Non Conveniens: A judge can conclude that although jursdiction is clear, it should still be moved to another location for a good reason. This can occur at the federal or state level (different county) SUBJECT MATTER JURISDICTION: A. Focuses on the substantive rule of law, what is the source of law that allows recovery? Is it based on federal or state law? B. U.S. Constitution Art. III §2: Fed jurisdiction extends to all types of claims arising under federal law or fed issue only. a. Thus, u have to state a federal issue/question cause of action in the initial pleading in order to obtain federal jurisdiction C. USC §1331: Federal District Court shall have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of US= Federal question jurisdiction D. Concurrent Jurisdiction: some claims can be brought in either state or federal courts (i.e. Diversity claims). Thus, it becomes a matter a strategy as to where to file (§1333=exclusive jurisdiction: u can only file in fed crt) E. USC § 1332: Diversity claims: District court shall have original jurisdiction over all matters that both exceed $75,000 and: i. where the parties are citizens of different states ii. where one party is an alien iii. (c): corporations are citizens of any state where they are located or headquartered iv. Diversity must exist at the time the claim is filed G. Diversity has to do w/domicile. Domicile= actual place of residence and intent to remain there SUPPLEMENTAL JURISDICTION A. Allows federal courts to hear parallel federal and state claims. Thus, if there is a federal question/issue claim that parallels with a state claim, the federal courts can claim jurisdiction over it B. If there‟s an overlapping state/federal claim, a federal court can hear it, only if they arise from the same sets of events C. USC § 1367: a. Dist courts have Subject Matter Jurisdiction over original jurisdictional claims so long as they arise out of the same case or controversy b. Limits diversity jurisdiction over diversity cases c. Court can dismiss supplemental jurisdiction claims if: 1. the claim raises a novel or complex issue of state law 2. the claim predominates over the claims over which the district court has original jurisdiction 3. the district court has dismissed all claims over which it has original jurisdiction 4. in exceptional circumstances, there are other compelling reasons for declining supp juris. d. Tolling of SOL: if the state claim is dismissed, it is tolled so that the SOL doesn‟t run while the fed claim is pending. SOL then becomes subject to state SOL for the claim (gives  30 days grace period to refile in state court before SOL runs) D. If a claim is not connected w/a federal issue, the litigant must choose whether to drop one of the claims or to split the claims btwn fed & state court E. Common Nucleus Test: State law claim has to have a common connection to the federal claim. Courts might/might not have discretion to hear a state claim that is not an original jurisdictional claim F. How does a court decide when to hear a discretionary supplemental jurisdictional claim? B. Judicial fairness/economy/convenience C. The court might not hear a state law issue cause it doesn‟t want to trample of state court‟s authority D. If a state claim predominates the fed claim, it might be remanded to state court w/o prejudice E. Or, the state court can give it to fed court to try a particular federal matter F. Or, there might be a jury factor that might give cause to a separate state/fed court 6. Or, of course, the state law might conflict with the federal law G. Cases: UMW v. Gibbs (mine workers brought fed claim and state tort claim); Owen (husband, Iowa citizen, sued power co. for creating a dangerous condition; Raygor (no tolling under 1367(d) for dismissal of the state claim because tolling would violate Minn‟s 11th Amend right not to be sued in REMOVAL JURISDICTION: A. W/removal jurisdiction,  gets the opportunity to remove a state claim to federal court B. The removal claim must have a federal issue/question that can be bring it w/in federal Jurisdiction C. Removal Juris. gives ‟s strategy (i.e. better jury pool, judges, etc) D. USC § 1441 a. general rules for removal: if district court has original jurisdiction, and the claim has been brought in state court (i.e. concurrent jurisd.), the  may remove it to fed court if there action is pending/proper venue b. if claim has a federal issue/question,  can remove to fed court regardless of diversity of parties. If diversity, it can only be removed if none of the other  parties are citizens of the state where originally filed c. if theres‟ a separate and independent claim under §1331 that is joined w/a claim that is non-removealable, the entire case can be removed. If 1 claim is removable, all the claims are removable as well. d. Not important e. Exclusive jurisdiction claims can be removed to fed court, if there‟s a federal question E. USC § 1446: Removal Procedure a) only ‟s can remove. ‟s have to 1st file a notice of removal w/proper district venue. ‟s file a short and plain statement (Rule 11) for grounds of removal w/a copy of all state pleadings docs. b)  can only file for removal either 30 days after the initial pleading is served or if the initial pleading doesn‟t allow for jurisdiction the court will allow another 30 day amendment period c) 1 year removal allowed for diversity cases, if the case is amended to meet diversity requirements d) After filing for removal,  must serve/notify state court F. USC § 1447: Procedure after removal: a) if claim is removed from state court, district court can bring all necessary parties forth b) District court can order all ‟s (removal party) documents from state court to be brought to district court c) ‟s allowance for remand to state court: 1.  can file for remand w/in 30 days based on lack of subject matter jurisdiction 2. if court lacks subject matter jurisdiction at any time prior to judgment, it can be remanded d) Remand order are not reviewable on appeal e) If  seeks to join other parties in order to destroy diversity so as to remand the claim, the court may/may not allow (at court‟s discretion) G. Cases: Caterpillar (KY /, and other  was DE. 2 sought removal but before 1 had settled=not yet any div. Juris. 2 was granted removal but Supreme court said no! should‟ve been remanded because no juris yet). ERIE DOCTRINE: what law do fed courts apply to diversity cases? A. General Rule: 1. For Procedural law, federal courts use federal law 2. For substantive law, federal court will apply state law B. For substantive law issues, the district court will apply the state law of the state where the district court is located C. If there is a multi-state case, court will use “horizontal approach”: if 2 or more states have conflicting law, the court will generally apply the law of the state where the incident occurred. D. 3 Part test to determine if a claim in procedural or substantive and thus an Erie issue: 1. Is it arguably procedural? If yes, the issues have to focus on the pleading, proof of rights process, NOT on the nature of the claim 2. Is there a conflict between federal and state law? If yes, it is an Erie issue, and both parties will want the law that benefits them 3. What is the nature or source of the federal procedural provision? Is it a FRCP rule, Const. provision, or developed case law? a. if based on FRCP rule, FRCP is used over state procedural law so long as the rule applies to the issue and the rule is valid under the Rules Enabling act (Hanna v. Plumer) b. if based on Const. provision, the Const. rule is used over state law so long as it is an important federal procedural issue (i.e. right to 7 th Amend jury, or authority between judge and jury ruling) (Byrd) c. if the rules are based on case law, then Guaranteed Trust outcome test applies: would the use of federal case law change the outcome of the claim if tried in state court w/state law? If yes, then state law is applied E.