CIVIL PROCEDURE Calvin E. Wingfield, Jr. Emory School of Law Professor Freer Fall 2003
I. INTRODUCTION TO CIVIL PROCEDURE Civil Procedure (CP) is about the litigation [publicly funded dispute resolution] process. One of the biggest issues in litigation is forum selection, where we can sue. A. Do we go to State or Federal Court? (1) State Court (most States’ court systems are tri-partite) (a) Trial Court – where it all starts (b) Court of Appeals (CT/APPS) – there is no jury or trial i. They view the record of the trial trying to decide if the trial judge committed a reversible error. (c) The State Supreme Court – acts just like the CT/APPS i. Its rulings constitute precedent; tells all other courts in the State what the law is. (2) Federal Court – can only hear certain types of cases (a diversity of citizenship and (b federal question [one that arises under federal law]. (a) Federal District Court – equivalent to the State trial court. (b) CT/APPS (c) US Supreme Court (USSC) i. Can review a State’s highest court, but only on issues of federal law. State and Federal courts are separate. The sovereignty of each State, in turn, implies a limitation of the sovereignty of all of its sister States—a limitation express or implicit in both the original scheme of the Constitution and the Fourteenth Amendment. II. PERSONAL J URISDICTION (PJ) The court must give adequate notice and an opportunity to be heard, which is procedural due process (this is not the central concern with personal jurisdiction). o This is the same in both federal and state court. The court can have jurisdiction over the D or over the D’s property A federal district court has personal jurisdiction over a defendant only if a State court in the State in which it sits would have jurisdiction. Rule 4(k)(1)(A). The plaintiff does not need to have a contact with the forum for it to have personal jurisdiction over the defendant. Keeton. Full faith and credit clause (US Const): each State must respect the judgments of its Sister States’ courts. i. Exception: if no personal jurisdiction in the original case, then full faith and credit not given. ii. Exception: if it is against the public policy of the second state, then we do not need to credit it. Ex. multiple wives in Utah, not required for GA to honor it.
A. Four Types of PJ In Personam Creates a personal obligation on the defendant. The plaintiff can use FFC to follow defendant to every state. In Rem- does not create a personal obligation b/c the ct. did not get power over the person; just over the person’s property. Deals with who owns the land with respect to the world. Quasi In Rem – deals with the persons property Type I - the dispute is over the ownership of the land between two people Type II – is what you settle for when you cannot get in personam jurisdiction 4 Traditional Basis for Personal Jurisdiction: 1. defendant is served in the forum 2. service of process of defendant’s agent in the forum 3. defendant is domiciled in the forum 4. defendant consents to jurisdiction in the forum Two ways to attack PJ:
1. Direct attack: make a special appearance in forum to contest only the PJ. If direct attack fails D may still litigate on merits of the case. 2. Collateral attack: D may argue only the PJ issue, (gen. after a default judgment b/c D did not answer in forum). If collateral attack fails, D cannot litigate on the merits of the case.
B. Pennoyer v. Neff The federal question in the case is whether Mitchell v Neff was valid under the Constitution [Full Faith and Credit Clause-FFC]; today it would violate the 14th Amendment [Due Process-DP]. If a court does not have personal jurisdiction over a defendant, then its judgment is void because it violates the Due Process clause of the 14th Amendment. Mitchell v. Neff is not in personam b/c Neff:
(1) did not appear in court (2) was not found in the state and (3) was not a resident of the state.
The defendant must be present in the state when he/she is served with process. If the court does not have personal jurisdiction over the defendant, then there is no due process. PENNOYER POWER PRINCIPLE:
(1) The State has power over people and property within its boarders (2) Two principles of public law: Every State exercises exclusive authority on things in that State. No State can exercise direct jurisdiction and authority outside its territory.
A State can coerce jurisdiction to corporations by making them appoint an agent for the purpose of service of process. C. Hess v. Polawski [CONSENT TO JURISDICTION] Hess stretches Pennoyer’s rule on personal jurisdiction [you can now serve an agent/representative of the defendant]. States can appoint an agent to a defendant. Hess was served through his agent; Pennoyer said you can consent to jurisdiction. In Hess, consent was stretched to ―implied consent.‖ The consent was based on the state’s interest in safe roads. Because a State can keep you out of the state in your motor vehicle, they can coerce your consent when they let you. D. Corporations and Personal Jurisdiction Corporations in dealing with personal jurisdiction: are a separate entity than the people who own and run it it is created by State law if a corporation wants to do business in a State, it must qualify to do business there 2
The Due Process Clause is the same for corporations as it is for individuals Privileges and Immunity Clause of Article IV: one State cannot exclude the citizens of another State; this does not apply to corporations; thus, they can be legally excluded from a State; if a State has the power to refuse a corporation entry into the State, then it must have the lesser power to allow it in dependent on conditions. The Commerce Clause of the Constitution says a State does not have the right to keep a corporation out if it is involved in doing interstate commerce. In International Harvester, the court held that even though there was no consent to jurisdiction, the defendant was present in the forum. The courts morphed presence and consent into doing business as a basis for jurisdiction. One test for doing business is ―solicitation plus‖: If a company solicited business plus something else, then that company can be sued in the forum, but the suit must pertain to that business the company was doing in the forum. International Shoe, changed the language for personal jurisdiction to : IF THE DEFENDANT BE NOT PRESENT IN THE FORUM, A State has jurisdiction over a defendant, if the defendant has such MINIMAL CONTACTS with the forum so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.
1. Related & continuous and systematic(Contact) = PJ 2. Unrelated & casual = NO PJ (the casual presence of a corporation or conduct of a single isolated activity is not sufficient to allow suit on claim unrelated to the activity) 3. Unrelated & continuous and systematic(Contact) = maybe [general jurisdiction is yes] General jurisdiction – an instance in which the continuous corporate operations within a forum State are thought to be so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities. 4. Related & casual (Contact) = maybe [Hess is yes]
Because the corporate personality is a fiction, although a fiction intended to be acted upon as though it were a fact, it is clear that unlike an individual its ―presence‖ without, as well as within, the State of its origin can be manifested only by activities carried on in its behalf by those who are authorized to act for it. ―If a corporation [or individual] exercises the privilege of conducting activities within a State, it enjoys the benefits and protection of the laws of that State; the exercise of that privilege may give rise to obligations, so far as those obligations arise out of or are connected with the activities within the state, the corporation [or individual] may be required to respond to a suit against them;‖ jurisdiction is based on a quid pro quo. Shoe. RELATEDNESS – the claim against D must arise from his contacts with the forum. If there is a strong showing of relatedness, it may make up for a weak contact. There are two parts to the test: (1) MINIMAL CONTACTS AND (2) FAIRNESS If there are no contacts, then there is no personal jurisdiction. McGhee Barest of contacts because we only know of one insurer in the State Of course CA would have a manifest interest in providing effective means of redress for its residents. The contract with that one insurer was sufficient enough for a contact with the forum because the insurance company purposefully availed themselves to the forum by sending that one document into the forum.
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Hanson Wealthy PA woman w/trust in Del bank moves to Fla. To be a relevant contact it must result from some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Gray [Water heater case] If a corporation elects to sell its products for ultimate use in another State, it is not unjust to hold it answerable there for any damage caused by defects in those products. To the extent that the business of a corporation may be directly affected by transactions occurring in the forum State it enjoys benefits and protections from the laws of that State. World Wide v. Woodson The Robinson family is moving from NY to AZ. They are driving an Audi they purchased in NY. The car explodes from accident in OK. They sue manufacturer, North American Importer (have jurisdiction in OK). They also sue: Regional Distributor (Worldwide) and Retailer in Messina NY (Seaway). Because of the increasing nationalization of commerce and modern transportation, it is less burdensome for a party sued to defend himself in a State where he engages in economic activity. World Wide. J. BRENNAN said since cars are mobile, you do not have to worry about a physical contact. There is no purposeful availment b/c the defendant did not send the car to the foru m. It got there due to the unilateral act of a third party. A “unilateral act by a third party” does not represent a contact with the forum state. The mere fact that the plaintiff takes a product into the forum State and such an action is foreseeable by the defendant, is not sufficient for forum to exercise jurisdiction over the defendant. ―The foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.‖ World Wide. When a corporation purposefully avails itself of the privilege of conducting activities within the forum State, it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs onto customers, or severing its connection with the State. World Wide. There are two policies for having ―minimal contacts‖:
1. It protects D against burden of litigating in an inconvenient/unfair or distant forum. 2. limits states power to get jurisdiction (to protect interstate federalism)
There must be a contact before you look at fairness. The protection of inconvenient litigation is typically described in terms of fairness. FIVE “FAIRNESS” FACTORS:
1. burden on D (always a primary concern, but will be considered in light of the others) 2. forum State’s manifest interest– states have interest to provide courtroom to its residents and to adjudicate dispute 3. P’s interest in obtaining convenient and efficient relief. 4. interstate judicial systems’ interest in obtaining most efficient resolution of controversy 5. social policies
There is no personal jurisdiction, if there are no contacts.
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FACTORS FOR CONTACT: 1. Foreseeable – whether D will be haled into court in the forum; not whether the product will reach the forum. a. According to Freer, if D can foresee that the product will reach the forum, then he can foresee that if an injury occurs because of the product he will be haled into court. 2. purposeful availment According to Freer, it is not possible to be able to foresee that a product will reach the forum, and not foresee being haled to court in the forum. Burger King v. Rudzewic The quality and nature of the D’s activities will determine whether there is a contact. Purposeful availment ensures the D that he will not be haled into a jurisdiction solely as a result of a random, fortuitous, or attenuated conduct or of the unilateral activity of a another party. Jurisdiction is proper where contacts proximately result from actions by the D himself that create a substantial connection with the forum State; deliberately engaging in activities in the forum State. If the D has created continuous obligations between himself and residents of the forum State, he has manifestly availed himself of the privilege of conducting business there. Because a D’s activity in the forum are shielded by the benefits and protections of the forum State’s laws it is presumptively and not unreasonable to require him to submit to jurisdiction there. Although territorial presence will enhance a potential D’s affiliation with a State, the D does not have to physically enter the forum. Because in modern commercial life business is often transacted through mail and wire communication across State lines, there is no need for a physical presence. As long as efforts are purposefully directed toward residents of another State, there is no need for a physical contact to have personal jurisdiction. When looking at fairness: Because the D probably purposefully established minimum contacts within the forum, the court will look to ensure that the exercise of jurisdiction comports with ―traditional notions of fair play and substantial justice.‖ J. Brennan – if you have contact, and it is overwhelmingly “fair”, then you can get by with a lower contact. Reasons why a forum legitimately may exercise personal jurisdiction over a nonresident who ―purposefully directs‖ his activities to forum residents:
1. the State’s manifest interest in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors 2. fairness – the defendant has purposefully derived benefits from their interstate activity they should be held accountable 3. due to modern technical innovations it is less burdensome on the defendant to litigate in another forum.
A choice of law provision by itself is insufficient to confer personal jurisdiction. A contract is an intermediate stop in serving to tie up prior business negations that will have future consequences (those negotiations, consequences, and the terms of the contract should be examined to see if the D purposefully availed himself of the forum State. A defendant who has purposefully derived commercial benefit from his affiliations in a forum may not defeat jurisdiction there simply because of his adversary’s greater net wealth. Burger King. The burden to prove ―compellingly‖ that jurisdiction is unfair is on the D. 5
The test is showing that it is ―gravely inconvenienced‖ as compared to your opponent. ―It is so gravely unfair that D is on a severe disadvantage to litigating there‖ Asahi v. Superior Court of California For there to be a substantial connection between the defendant and the forum to yield minimum contacts, the defendant’s actions must be purposefully directed toward the forum State. Asahi. Conduct that shows the D’s intent to serve market in the forum: (1) advertising in the state, (2) designing product for the market in the state, (3) establishing channels for providing advice to customers in forum, (4) marketing the product through a distributor who serves the forum If the D sends something from one state to another, it is not stream of commerce; it is direct availment. Stream of Commerce is when the D sends product to another company/entity which ships the product into another state. Three schools of thought on Stream of Commerce: 1. O’CONNOR – placing a product into the stream of commerce is not purposefully directing it toward a State. To be a relevant contact, there must be more than the awareness that product will end-up in another state; it takes that plus additional conduct indicating intent to serve the market of the state: (1) advertising, (2) desire for product to make it, (3) channels productability. 2. BRENNAN – if you put product into stream of commerce, and are aware it gets to another State, there is purposeful availment, foreseeability of suit, and a relevant contact. 3. STEVENS – look to volume, value and hazardous character of product to determine purposeful availment and foreseeability. In most ―stream of commerce‖ cases, the D has made money in the state; this seems to be purposeful availment. E. Consent A forum selection clause – is consent to jurisdiction if the k is valid because the defendant has purposefully availed himself of the benefits and protections of the forum State’s laws. P consents to jurisdiction in State by making a claim in that State; quid pro quo. Divorce is not an in personam issue, but when the issue is property for child support it is an in personam issue. Burnham v. Superior Court of California Because claim is unrelated to the defendant’s activities in the forum, there must be general personal jurisdiction over the defendant for CA to have jurisdiction. The defendant was served in the forum, but there is a debate over whether being served in the forum is sufficient to have general jurisdiction: 1. J. SCALIA – personal service in the forum is a traditional basis for general jurisdiction therefore there is general jurisdiction over the D. 2. J. BRENNAN – there has to be ―fairness‖ when doing in personam jurisdiction; everything must go through Shoe test. The D ―soaked up the benefits‖ of the forum while there, so fairness is met. Shafer v. Heitner In true in rem and QIR I cases, the dispute is over the ownership of the land. QIR II – the dispute over ownership has nothing to do with suit; the res caused the injury. Shaffer is a QIRII case When it comes to true in rem and QIR I the presence of property will most always give the forum the property is located in jurisdiction b/c:
1. In rem cases effect the interests of all persons in the designated property, and QIR I cases affects the interests of particular persons in the designated property. (P’s interest)
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Because property was located in the forum, we can presume that he expected to benefit from the forum’s protection of his interest. (shows D has purposefully availed himself to the forum by “soak[ing] up benefits‖) 3. The forum’s interest in assuring the marketability of property within its borders, and in providing a procedure for peaceful resolution of disputes about the possession of property. (forum’s interest) 4. Greater likelihood that important witnesses and documents will be found in the forum because the property is located there. (efficiency b/c everything needed is there) Therefore, Shoes’ “minimal contacts” test is already met when claim is over the land.
When the only role of the property is to provide a basis for bringing the D into court in the forum [the property is completely unrelated to the P’s cause of action], then minimal contacts test must be applied b/c:
1. It is a fiction to think that ―jurisdiction over property is anything but jurisdiction over the owner of that property.‖
Therefore, all assertions of jurisdiction must be evaluated according to “minimal contacts and fairness” test of Shoe and its progeny. F. Statutory Limitations on PJ A state can only have personal jurisdiction if: 1. it has a statute that allows for the exercise of personal jurisdiction 2. the exercise of personal jurisdiction is constitutional If the statute is not met, then there is no need for a constitutional analysis. Different States can interpret the same language different ways State has jurisdiction over one who ―commits a tortuous act or omission in State‖ Illinois courts – an act or omission cannot become ―tortuous‖ until someone is injured. Because plaintiff was injured in Illinois, defendant committed a tortuous act or omission there. NY courts – statute could only be met if the defendant actually did (or omitted to do) something in NY. If the negligent manufacture of the product took place in a different State, there was no tortuous act or omission in NY, and therefore no jurisdiction. Certain Ubiquitous Statutes 1. attachment statutes (only for in rem & QIR) 2. service of process 3. jurisdiction over domiciliary 4. incorporated 5. a non-resident motorist act 6. Long-Arm Statute California type – jurisdiction comes from full extent of constitution Laundry list type – spells out specific things a non-resident can do to subject himself to jurisdiction. III. NOTICE AND THE RIGHT TO BE HEARD The fundamental requisite of due process of law is the opportunity to be heard. A. Constitutional Requirement for Notice Mullane v. Central Hanover Bank & Trust Co. Notice reasonably calculated under all the circumstance to inform interested parties of pending action and to afford them the opportunity to present their objection. Notice reasonably to reach most of the people is sufficient; don’t have to reach all of them [in the case of a shared interest: reach most parties]. B. Statutory Requirements for Notice Rule 4, SERVICE OF PROCESS is the notice given to a D when their rights are being sued. o Always constitutional even if D does not get notice o Service of process is required because DPC of Constitution requires us to give notice to D that a suit has been brought against him. 7
o Process = (1) summons with (2) a copy of complaint 4(c)(1). o The summons shall be signed by the clerk, bear the seal of the court, identify the court and the parties, be directed to the D, and state the name and address of the P’s attorney or, if unrepresented, of the P. Rule 4(a) o Service of process must be done within 120 days after filing the complaint. If not the court, upon motion or sua sponte after notice to the P, shall dismiss without prejudice as to the defendant or direct that service be effected within a specified time; provided that if the plaintiff shows show good cause for failure of service, the court shall extend the time fro service for an appropriate period. Rule 4(m) o Service may be effected by any person who is not a party AND who is AT LEAST 18 years of age. o Service of Process of an Individual within the US: 1. pursuant to State statute [Rule 4(e)(1)], or the methods of the state in which D is served, or the methods of the state where the district court is located 2. by delivering a copy of summons and complaint personally [Rule 4(e)(2)], or 3. by leaving copy with some body of suitable age and discretion at dwelling house or usual place of abode who resides therein [Rule 4(e)(2)], or 4. by delivering a copy to an agent authorized by appointment or law to receive summons [Rule 4(e)(2)]. National Dev. Co. v. Triad Holding Corp. o A D can have more than one ―dwelling house‖ o When a D spends his time at different ―dwelling houses,‖ it is proper to serve D at the one in which he is currently living. o Rule 4(h) SERVICE ON CORPORATION [OR UNICORPORATED PARTERNERSHIPS] 1. according to state law OR 2. by delivering a copy of summons and complaint to an officer or another agent authorized by appointment or law to receive service of process. o Rule 4(k) – Territorial Limits of Effective Service 1. Service of a summons or filling a waiver of service is effective to establish personal jurisdiction over the person of a defendant a) who could be subjected to the jurisdiction of the State court in which the Federal district court is located b) who is a party joined under Ruled 14 or 19 and is served within a judicial district of the US and not more than 100 miles from the place from which the summons issues [Bulge Rule, does not allow regular defendants; must be joined] c) when authorized by a statute of the US o Rule 4(d) – Waiver of Service [applies only to Federal Courts] 1. A D who waives service of summons does not waive any objection to venue or jurisdiction 2. P must notify D of commencement of action and request that the D waive service of summons. The notice and request: a) Shall be in writing b) Shall be addressed directly to the D c) Shall be sent through first-class mail or other reliable means d) Shall be accompanied by a copy of the complaint e) Shall set forth the date on which the request was sent f) shall id the court it has been filed in D has at least 30 (60 if D addressed outside of US) days from the date the request was sent to return the waiver. 8
If D returns the waiver, he has 60 days after the date on which the request for waiver of service was sent (90 if D addressed outside of US) to serve an answer to the complaint, but only 20 if not. P files waiver of service after the D has returned it. If D does not accept waiver, then he must pay the cost for service on himself. Immunity 1. Person comes into a State to participate in another suit 2. Person induced into the State through fraud or deceit. IV. SUBJECT MATTER J URISDICTION SMJ tells you which court system you can file the suit; it cannot be waived. There are three bases for SMJ: 1. diversity of citizenship § 1332(a)(1) 2. alienage jurisdiction § 1332(a)(2) 3. federal question § 1331 State courts have general subject matter jurisdiction (except certain cases that arise under federal law that can only go to fed. court- federal question) Fed. Courts have limited subject matter jurisdiction. Article III, Sec (2), Part I lists the kind of cases that may go federal court: 1. cases arising under federal law 2. cases affecting Ambassadors or Public Ministers 3. maritime jurisdiction 4. controversies to which the US is a party 5. controversies between two or more States 6. controversies between a State and a citizen of another State (11th Amendment killed this) 7. controversies between citizens of different States 8. controversies between citizens of the same State dealing with a claim to land in another State 9. State or citizen of State is a party against a citizen of another country There must be a statute that allows a federal court to hear a case, even if it is constitutional A. Diversity of Citizenship – 28 USC § 1332 The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds $75,00 (policy: feds are not small claims court) § 1332(a) – amount in controversy MUST EXCEED $75,000 o Unless it is certain to a legal certainty that what the P cannot recover what the amount they stated, whatever they claim governs. o Aggregation of Claims One P v. one D: P may aggregate claims even if they are legally or transactionally unrelated. Howeve, it should be noted that it does not really make sense to allow aggregation of legally unrelated claims because this forces the court to hear multiple claims and amount in controversy was set to keep fed. Court from being a small claims court. Mutliple parties on either side: generally not allowed. However, with join tortfeasors it is allowed. Equitable relief – traditional approach: where D’s alleged acts harm P for more than $ 75,000, then can aggregate. Other approach: whether complying with injunction would cost the D more than $75,000 Complete Diversity Rule – all Ps must be of diverse citizenship of all Ds. Strawbridge. The citizenship of the parties looked at is their citizenship when suit is filed. There is not a mention of The Complete Diversity Rule anywhere in the FRCP; it is a judicial interpretation. [serves as docket control] 9
Diversity must be present at the time the complaint is filed, (it is irrelevant if subsequent change of diversity happens). The citizenship of the parties looked at is their citizenship when the suit is filed. Mas v. Perry [CITIZENSHIP FOR INDIVIDUALS] o To be a citizen of a State, the person must be: 1. a citizen of the US AND 2. a domiciliary of the State o To be domiciled in a State, a person must: 1. physically be present in the State 2. have a mental intent to make that State their permanent home o Foreigners admitted to the US for permanent residence [those with green cards] shall be deemed a citizens of the State in which they are domiciled. ¶ 2. o A person has only one domicile. o Everyone is ascribed domicile at birth, usually the domicile of his/her parents; this remains the person’s domicile until he/she affirmatively changes it. o To change domicile an individual must (1) take up resident in another State and (2) intend to remain there. CITIZENSHIP OF UNINCORPORATED ENTITIES – § 1332(C)(1) o If a member of the entity is a citizen of a certain State, then so is the entity. o Because of this, national unions can not be sued in federal court under diversity of citizenship jurisdiction. CITIZENSHIP OF R EPRESENTATIVES - § 1332(C)(2) o The legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent o The legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent. CITIZENSHIP OF CORPORATIONS [Olson] – § 1332(C)(1) 1. Any State they are incorporated in AND 2. The State where it has its principal place of business o Nerve center test – the nerve center is the place from which its officers direct, control and coordinate all activities with regard to locale, in the furtherance of the corporate objective. o Muscle or place of activity test – is where the vast majority of the corporations actual business is done. o Total Activity test – is a combination of the two other tests; normally go with the nerve center unless all activities are in a single State. COLLUSION - § 1359 o There is no jurisdiction over a suit in which the assignees were involved in collusion. Does not cut out the assignment, which is still valid, but ignores the assignment with respect to diversity jurisdiction. Court will look to see if there is consideration for the assignment or if the assignee is a mere collection agent, if they deem this is true then the suit is really the original party’s claim. o Not collusion if the third party is paid, or has a stake in the claim in some other way. o Cannot be applied to a person changing his domicile b/c one person cannot collude. B. Federal Question – 28 USC § 1331 *** NO AMOUNT OF CONROVERSY NEEDED *** The district court shall have original jurisdiction of all civil actions arising under federal law (Constitution or federal statute). Well-pleaded complaint rule – federal question must arise from the original claim; not from anticipated defenses. Mottley. 10
o The court looks at the complaint and not to any other extraneous matter or surplus language (i.e., anticipatory responses/defenses) o Claim itself must arise under federal law, not enough for P to just mention federal law o Ask: Is P vindicating a federal right? Supporters say it is good b/c it allows us to determine at the outset if the case is properly in fed court. Another means of docket control C. Supplemental Jurisdiction In the original complaint all claims must invoke federal SMJ. The federal court will hear additional closely related complaints. V. REMOVAL J URISDICTION – 28 USC §§ 1441, 1446, 1447 ALL D S MUST AGREE TO REMOVAL Takes case from State trial court to Federal district court; not Fed to State. If a case was removed to a federal district court, then that district court is a proper venue for the case. Actions Removable Generally - § 1441 o Cases can only be removed by the D [this gives the D a say in forum selection] o Case can only be removed if there is subject matter jurisdiction o If SMJ is based on Fed. Quest., then the case shall be removed without regard to the citizenship or residence of the parties. § 1441(b) o If SMJ is based on diversity of citizenship, the case shall be removed only if none of the Ds is a citizen of the State in which the action was brought. § 1441(b) policy: the underlying theory of the diversity of citizenship is that it is designed to prevent local bias. o Whenever a separate fed q. claim is joined with a claim that was not removable, the entre case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. § 1441(c). Procedure for Removal - § 1446 o If the basis for jurisdiction is diversity, then the case cannot be removed after one year. o The D does not have to ask for permission to remove the case, he just removes it. o If a case is removed and it turns out there is no subject matter jurisdiction, then it is remanded to State trial court. o The D must file a notice of removal and a short plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon the D. o Notice of removal is a: Short plain statement of grounds for removal Copy of service of process on D. o The notice for removal shall be filed within 30 days after receipt by the defendant of service of a copy of the document from which it may first be ascertained that the case is one which is or has become removable. § 1446(b) o If the district court does not summary remand the case, then it will hold an evidentiary hearing. § 1446(c)(5). o Promptly after the filing of a notice of removal the d shall give written notice to all adverse parties and shall file a copy of the notice with the clerk of the State court, which shall effect removal and the State court shall proceed no further unless and until the case is remanded. o Removal has its own venue provision Case can only be removed to the Federal district court that embraces that State court. 11
o When the original complaint was removable, it does not become removable again because it is amended unless the amendment bring forth a new basis for federal jurisdiction. o If case as stated in the initial pleading was not removable, a notice or removal may be filed within 30 days after receipt of something from which it may be ascertained that the case can be removed. § 1446 o If P dismisses a D that allows diversity of citizenship between the other D and the P, then the case can be removed. o If the court dismisses the D that allows diversity of citizenship, then there is no removal because that dismissal can be appealed. Procedure after removal generally – § 1447 o A motion to remand the case on the basis of any defect other than lack of SMJ must be made within 30 days after the filing of the notice of removal. o If at anytime before final judgment it appears that the district court lacks SMJ, the case shall be remanded. § 1447(c) o If after removal the P seeks to join additional defendants whose joinder would destroy SMJ, the court may deny joinder or permit joinder and remand the action to the State court. § 1447(e) o An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise. EXCEPT if it is a civil rights case. § 1447(d) VI. VENUE - § 1391 Tells us which court in the court system we are in. With venue talk about residence, but state that the courts have interpreted to mean domicile. In the federal court, venue is determined by statute THE VENUE FOR A REMOVED CASE IS THE DISTRICT THAT EMBRACES THE STATE COURT IT WAS IN. Every case is either transitory or local. Local actions are about real property. If you have local action, § 1391 does not apply. The case will be heard in the district where the land is located. o If the property spans different districts, claim can be filed in either district. In § 1391, the courts have interpreted residence to mean domiciled. An alien may be sued in any district. § 1391(d) A defendant corporation is said to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. If State has more than one district, then in the district within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and if there is no such district, the corporation will be deemed to reside in the district were its contacts are the most significant. § 1391(c). A. DIVERSITY – § 1391(a) 1. a judicial district where any defendant resides, if all defendants reside in the same State 2. a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or property that is subject to the action is situated. 3. If there is no district which the action may otherwise be brought, in a district where any D is subject to personal jurisdiction. B. FEDERAL QUESTION & HYBRID– § 1391 (b) 1. a judicial district where any defendant resides, if all defendants reside in the same State 2. a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or property that is subject to the action is situated 3. If there is no district which the action may otherwise be brought, in a district where any D is subject to personal jurisdiction.
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C. CHANGE OF VENUE – §§ 1404, 1406 Reasons for allowing a transfer: (1) for the convenience of parties and witnesses, (2) in the interest of justice. State and federal courts can only transfer cases intra-system [within its own system]. Cannot transfer a case from one State system to another. § 1404 transfers are always done in terms of convenience. Godlawr transfer T’or Court T’ee Court Goldlawr Choice of law § 1404 Venue – ok PJ – ok yes T’or courts allows courts to Venue – ok transfer a case even Venue - no PJ- ok yes T’ee courts though it does not have § 1406 Venue - ok personal jurisdiction over the defendant; applies to §§ 1404, 1406. In § 1406 venue is improper so judge can transfer in the interest of justice or dismiss. Factors for transferring: convenience of parties and witnesses, interests of justice, better place for case. Can only transfer to court where venue and personal jurisdiction is proper. Hoffman. This applies to § 1406 too. Choice of law o In a 1404(a) transfer, the laws of the transferor court follow the case to the transferee court because the transfer is simply a change of courtroom, not a change in the law. Van Dusen. o Even if the plaintiff requests the 1404(a) transfer, the choice of law is still that of the transferor court. Ferens. o In 1406(a) transfers, the choice of law is that of the transferee court because the transferor court did not have proper venue. o In a Goldlawr transfer, the choice of law is that of the transferee. D. Piper Aircraft v. Reynolds [Forum Non Conviens] FNC is a doctrine of dismissal, not of transfer. FNC results in dismissal because the better court is one which the case can not be transferred. When considering whether to transfer a case, it is important to look at both the public and factors. In an FNC case, there must be a stronger showing of inconvenience because it is a dismissal. The court will normally give the plaintiff’s forum selection some deference, but when they are foreigners the court does not give too much; Freer thinks that if the plaintiffs were Americans there would not be a dismissal. A forum non convenience dismissal may be conditioned on the defendant’s waiving the other forum defenses such as the statute of limitations or personal jurisdiction. Private Factors: 1. relative ease to source of proof 2. Availability of compulsory process for obtaining willing and unwilling witnesses 3. view of premises 4. all other practical problems that make trial easy, expeditious, and inexpensive Public Factors: 1. administrative difficulties flowing from court digestion 2. local bias 3. interest in having trial in place where laws govern action 4. the avoidance of unnecessary conflict of law problems 5. burdening citizens in an unrelated forum with jury duty VII. RULE 12 DEFENSES A special appearance allows the defendant to go to court and challenge personal jurisdiction. A limited appearance challenges in rem jurisdiction 13
There is no such thing as a special appearance in federal court because Rule 12 allows you to combine defenses in motions or pleadings A defendant shall serve an answer within 20 days after being served with the summons and complaint. 12 (a)(1)(A). If service has been waived, within 60 days when the request for waiver was sent. If the court denies a motion under this rule or postpones its disposition, then the defendant’s responsive pleading shall be served within 10 days after notice of the courts action. 12(4)(A) If the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service of the more definite statement. 12(4)(b) Certain defenses are waived if they are not put in the defendant’s first Rule 12 response. Rule 12(g) - (h). THE WAIVABLE 12(B) DEFENSES: o Lack of jurisdiction over the person 12(b)(2) o Improper venue 12 (b)(3) o Insufficiency of process 12(b)(4) o Insufficiency of service of process 12(b)(5)
If the above 12(b) defenses are not included in the first 12(b) motion then they are waived, [Rule 12(g)] or in the responsive pleading then they are waived [Rule 12(h)].
Other 12(b) defenses are: o lack of personal jurisdiction 12(b)(1) o failure to state a claim upon which relief can be granted 12(b)(6) o failure to join an indispensable party 12(b)(7) 12 (b)(1) – lack of jurisdiction over subject matter – cannot be waived; it can be raised at anytime. 12 (h)(3) Motion for More Definite Statement – 12(e):
o If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party, or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
Motion to Strike – 12(f):
o
VIII.
Subject Matter Jurisdiction o The defendant can raise the issue of subject matter jurisdiction for the first time on appeal. o A defendant can only litigate the issue of subject matter jurisdiction once; if he loses then he cannot challenge it again in a separate action. o Cannot raise SMJ in a collateral attack o If the defendant Direct v. Collateral Attack: o Collateral – D takes a default judgment and then argues for no PJ in home state. o Direct – D makes a special appearance in state to argue against PJ o D can only make a direct attack OR a collateral attack; not both. o If D makes a direct attack and loses then he must be prepared to stay and litigate the case. o Collateral attack can never be made on SMJ. PLEADINGS AND J UDGMENTS BASED ON PLEADINGS Pleadings are the first step in filing a case. Rule 7(a) – there shall be a complaint and an answer. Rule 7(b) – motions and other papers. 14
Three theories of pleadings: 1. common law pleadings – P had to chose the right writ to have case heard 2. code pleadings – P had to state facts constituting the cause of action o still alive in NY and CA 3. Federal Rules (―notice pleading‖) – ―short and plain statement of the claim‖ Federal Rules pleading o Types of pleadings 1. Complaint a. Complainant has sued the defendant. b. Counter-claim is when the defendant asserts a claim against the complainant 2. Answer 3. Reply a. Two different types: i. For P to respond to the answer by D ii. For D to respond to P’s complaint, the answer o A pleading is: 1. A ―short and plain statement of the grounds upon which the court’s jurisdiction depends.‖ [SMJ] Rule 8(a)(1). 2. A ―short and plain statement of the claim.‖ Rule 8(a)(2) 3. A ―demand for judgment for the relief the pleader seeks.‖ Rule 8(a)(3) Form of Pleadings (caption of the pleading) – Rule 10 [all pleadings must meet this rule] Rule 11 o Applies to both the P’s and D’s attorney and pro se or in propria persona litigants. o It requires: a) A signature on every pleading, written motion, or other paper by attorney b) By signing the document the attorney is certifying that to the best of their knowledge, information, and belief formed after an inquiry reasonable under the circumstances [11(b)]: 1. claim is not presented to harass or cause unnecessary delay 2. claims, defenses, and other contentions are warranted by existing law or by nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. 3. all allegations and factual contentions have evidentiary support 4. denial of factual contentions is warranted or reasonably based on lack of information or belief c) if Rule 11 is violated sanctions are handed down o party drafts a motion for sanctions and serve papers to other side, and if after 21 days they do not address the concern, then the paper shall be presented to the court. o The court may impose sanctions for a Rule 11 violation o Sanctions are ordered to deter repetition of such conduct o If the court thinks sua sponte that you have violated Rule 11, they will make an order to show cause, where the suspected party must show cause for the violation. d) On the Court’s Initiative: o OSC Rule Nisi: Order to Show Cause o Monetary sanctions may not be awarded against a represented party for violation of Rule 11, b/c it would be the lawyers fault 15
o Monetary sanctions cannot be awarded by the ct unless it orders the OSC prior to voluntary dismissal or settlement The complaint must be o Factually significant: Code pleading: Under code pleading the plaintiff was required to plead the ―ultimate facts‖ A ―special demurrer‖ allowed the defendant to question the factual sufficiency of the plaintiff’s complaint Federal Rules Pleading: Dioguardi v. Durning ◊ The point of the FRCP is to promote the resolution of a case based on its merits; we should not decide cases based on formality. o Legally sufficiency: If on the face of the complaint the allegations could not support a judgment for the P, then the case can be dismissed. Under code pleading a general demurrer to the complaint is used to challenge the legal sufficiency of the complaint. Under Federal Rules pleading a 12(b)(6) motion is used to challenge the legal sufficiency of the complaint. If the plaintiff proved everything alleged in the complaint, would the law provide a remedy? If yes, then the complaint is legally sufficient. o Attacking a pleading 12(c) – motion for judgment on the pleadings. Same standard as a 12(b)(6), but is raised after the motions are closed. 12(e) – motion for a more definite statement D must make this motion before he files his answer. 12(h)(2) 12(f)-motion to strike might strike a whole pleading or allegations of a pleading i.e., if a P makes a claim that alleges ―fraud, maliciousness, etc‖ D would want to make a motion to strike because these words set up a basis for punitive damages. Exceptions to rule 8(a) (2)-liberal pleading- found in RULE 9 Fraud Sometimes courts will require more detail even though rule 9 does not say anything about it (Leatherman v. Tarrant County) 9(g)-there must specificity Heightened Specificity Requirement o Leatherman v. Tarrant County According to Rule 9 there are only certain things that a court can require a more detail on: 1. capacity 2. all averments of fraud or mistake – the circumstance constituting fraud or mistake shall be stated with particularity. 3. conditions precedent – a denial of performance or occurrence shall be made specifically and with particularity 4. special damages
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Pleading Inconsistent Facts and Alternative Theories o McCormick v. Kopmann If injured party is living and able to recollect events, then an alternative claim may not be justified. Rule 8(e)(2) – a party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. The counts are considered mutually exclusive. The plaintiff may not recover on both counts but can plead them together. If one statement is sufficient, then the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. Claims must satisfy Rule 11. Voluntary Dismissal – Rule 41(a) The plaintiff pulls the plug on the case. If plaintiff dismisses twice AND THE SECOND DISMISSAL IS A NOTICE OF DISMISSAL, then the case is dismissed with prejudice. o A plaintiff may dismiss unilaterally without prejudice by a filing a notice of dismissal before the defendant answers or makes motion for summary judgment. o A plaintiff may dismiss with the agreement of the other parties who have appeared by filing a stipulation of dismissal. Such dismissal will always be without prejudice. o If the defendant has already pleaded a response, then the plaintiff must dismiss with the permission of the court. Involuntary Dismissal – Rule 41(b) o A district court may order involuntary dismissal sua sponte. Link. o A court can dismiss involuntarily: 1. failure to prosecute 2. failure to comply with the FRCP 3. failure to comply with a court order 4. lack of jurisdiction or venue 5. P’s failure to join an indispensable party 6. by a defendant who moves for dismissal of an action against him o Normally an involuntary dismissal is with prejudice. However some are not:
1. Dismissal for lack of jurisdiction (of both parties, subject matter, or insufficient service) 2. improper venue 3. failure to join an indispensable party
o of jurisdiction, improper venue, or failure to join an indispensable party. o Rule 11 requires notice for all sanctions o Order to Show Cause (OSC) if no activity within a period of time court will issue an order to show cause (rule nisi). Rule 60(b). o Every federal district court has its own body of local rules that augment the FRCP. Most say that if there has been no activity for a year, then the court will as the plaintiff to give a reason why case should not be dismissed. The Defendant’s Options in Response The defendant has two options: either bring a motion or file an answer. o Motions Motion for summary judgment under Rule 56 Motion for more definite statement. Rule 12(e) Motion to strike. Rule 12(f)
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o The Answer Most important rule is that if you don’t deny something then you have admitted it. If you don’t deny an issue then it is deemed joined and a joined issue must be adjudicated. D must stay away from argumentative denials b/c they are deemed admitted. Do not introduce new facts into a denial b/c then it is no longer a denial. D must also stay away from negative pregnants b/c here the denial is too literal; they say that D denies the allegations, but not each specific fact, b/c it says that D is not guilty of those particular allegations in the way they are stated but not that he didn’t do any of it. There are three possible responses to the various allegations of the plaintiffs’ complaint Rule 8(b): 1. admit 2. deny – two types of denials specific denials – ―Defendant denies allegation in paragraph 2‖ or qualified denials – defendant admits allegations in some paragraph and denies every other If in a single paragraph of the complaint there is something that the defendant wants to admit and deny: ―In response to Paragraph Four, the defendant admits X and denies the remainder of the paragraph The defendant should not plead contrary facts; this is known as a pregnant denial. Allegations not denied are admitted 3. lack of knowledge to admit or deny Affirmative defenses – Rule 8(c) ◊ If you do not plead an affirmative defense you may have waived it. ◊ An affirmative defense injects new facts into the dispute o Failure to Respond: Default and Default Judgment The default is always entered the same way: when a party against whom a judgment is sought has failed to plead or otherwise defend as provided by the rules and that fact is made apparent by affidavit or otherwise, the clerk shall enter the party’s default. A default is simply a notation on the docket sheet P’s attorney must prepare an affidavit and give it to the clerk of the court. (not the judges clerk) o Affidavit is a sworn statement under penalty of perjury. o Clerk is the only place P needs to go for default. Clerk must enter the default; there is no discretion. Once a default is on the books D cannot respond. DEFAULT J UDGMENTS: Requirements for Default and default judgment by the Clerk [Rule 55(b)(1)]:
1. defendant did not appear 2. a sum certain [on exam must say a sum certain b/c P claims $X] 3. defendant is not an infant or incompetent 4. affidavit of the amount due
Otherwise, for unspecified damages default judgment is done by the court P must go to the court for default judgment and make a motion, or application, for judgment 18
A hearing will follow to determine the damages b/c they are not a sum certain, or anything else the judge thinks is relevant. o A hearing does not always result in judgment b/c court can look into any averment. o If the D has not appeared in some way, then he does not get notice of the hearing. o Court’s bend over backwards for pro se litigants and allow things to count as appearances that normally would not (i.e., letter to the court). If a defendant is late in their response, he should ask for an enlargement in time; this can be done as long as the default is not on the books. If the default is already on the books, the defendant must make a Rule 55(c) motion to set aside the default. A court will set aside a default for good cause shown, excusable neglect (mistake or surprise) and a viable defense A defendant can try to set aside a default judgment with a 60(b) motion; he can do this within a reasonable time up to one year of the judgment. In a default judgment, P cannot recover more than she asked for, or a different type of recovery than she asked for, in the pleading. Rule 54(c).
o AMENDED PLEADINGS – Rule 15 A party may amend his/her pleading once as a matter of course at any time before a responsive pleading is served, or If the pleading is one in which a responsive pleading is not permitted and the action has not been placed upon the trial calendar, a party may amend with 20 days after it is served. 15(a) A party must respond to an amended pleading w/in the time left to respond to the original complaint or w/in 10 days. Rule 15(a) If a party misses a deadline, he/she may amend by leave of court or written consent of adverse party (leave shall be given freely when justice requires) ◊ To grant or deny is up to the discretion of the court REASONS P MIGHT WANT TO AMEND HIS/HER COMPLAINT: a) Might have a new claim b) Forgot an element of damages c) May want to flesh out current claim D MIGHT WANT TO AMEND ANSWER B/C: a) Failed to deny something in complaint b) Raise affirmative defenses Variance – Rule 15(b) When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in respects as if they had been raised in the pleading. o Such amended pleading may be made to conform to the evidence by motion of any party at any time, even after judgment.
If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended freely and shall do so freely when the presentation of the merits will no be subserved and the objecting party fails to show how it is prejudiced by its admission.
Rule 15(b) 19
1. one thing that can be done is an amendment to conform to the pleading 2. sentences 1 and 2 are about when the other party does not object a) court shall treat these amendments as part of the original pleading 3. Sentences 3 and 4 are about when the other party does object. The immediate response is that the evidence is not admissible a) If court allows amendment under sentences 3 and 4 it is NOT amendment to conform to the evidence.. 4. Court may allow an amendment at trial and shall freely do so 5. Burden of shown harm is on the party opposing the amendment Process of Variance Amendments: One party tries to prove evidence that was not pleaded, then other party objects, so first party makes a motion to amend. Statute of Limitations -Temporal limit on ability to assert a claim -there is a point at which your claim accrues (i.e., When you were hurt, became aware of injury, etc). then the statute of limitations starts to run (time starts ticking), and if it reached the end of the time, and if you have not commenced suit, then you are barred. *Accrue------------------------------BAR -there are certain events that toll the statute of limitation: Tolling Stops the Ticking! 1. lack of legal capacity i. the statute is tolled until this person turns 18 2. the commencement of the case i. you have to be sure to commence the case before the time period runs out, even it is at the very last minute. ii. Hypo: what if you file with one week left and the case gets dismissed without prejudice, but you only have that one week to bring the case again 15(c) – amending after the statute of limitations has run question becomes whether we can get relation back o the amended pleading relates back to the original pleading Relation back standard o Amended pleading relates back to the original filing of pleading when 1. Permitted by statute of limitations applicable 2. amending to add a new claim must show that the claim in the amended pleading arose out of the conduct, transaction set forth in the original pleading did the original complaint tell the defendant enough about the general complaint? 3. amending to change the defendant (in those circumstances in which we sued the wrong defendant) Requirements of 15c (3) o Amended document deals with the same conduct, transaction o w/n the period provided by rule 4(m) for service of process (120 days after filing) the party to be brought in will receive notice that it will not be prejudiced o party knew or should have known that but for a mistake by the P they would have been brought in. 15d: Supplemental pleadings involve facts that occur after the case is filed 20