Civil Procedure Outline – Schapiro ’98
I. Introduction -Rule of Law – commitment to a certain set procedures, principle of fairness -fairness and efficiency – just, speedy, inexpensive determination of action is goal of CP -Federalism – federal & state court systems operation independently U.S. Supreme Court State Supreme Court Federal Court of Appeals State Court Federal District Courts -Full Faith & Credit Clause – U.S. Constitution – Rules p. 552, Pennoyer -like treaty among states to recognize valid judgments of other states -judgment not valid if rendering court lacked jurisdiction -types of jurisdiction 1. In personam – jurisdiction over D’s “person” – can issue against personally -can seize all assets to satisfy judgment & can sue upon on other states -if person is in forum state 2. In rem – jurisdiction over a thing – piece of property or status -true in rem – judgment good against whole world -court may have j over a thing but not p.j. over persons with interest affect 3. Quasi in remII – action not related to property in state – begun by attachment -judgement affects only property seized & can’t sue upon in other state -Pennoyer -obtaining jurisdiction 1. Consent - Hess 2. Presence -challenging jurisdiction 1. Direct – make appearance and object to p.j. 2. Collateral – wait for default and attempt to enforce judgment - Pennoyer Advantages to Def. Disadvantages to Def. Can litigate merits 1. Litigate jurisdiction in P’s Direct Special appearance of case if loose forum In rendering court 2. Can’t collaterally attack Litigate jurisdiction If loose on jurisdiction can’t Collateral Default in render ct. in D’s forum litigate merits Then attack in Recognition court -specific vs. general jurisdiction – comes from IS – general j (Helicopteros) Occasional Contacts Continuous & systematic p.j. – Hess p.j. – IS Specific no p.j. Contacts related No p.j. p.j. – “substantial” – HQ General no p.j. – no substantial Contacts unrelated
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II.
Personal Jurisdiction A. Why have p.j. rules 1. convenience – but VW even if convenient no p.j. 2. bias against out of staters – limiting when court can reach out 3. choice of law – limits P’s ability to choose law - Keeton 4. consent to sovereignty – does forum have any business regulating controversy B. Ways to get p.j. over individuals 1. Presence in forum state – Burnham is tag j 2. Domicile or residence within forum state – presence & intent to remain 3. Consent to be sued -appointing agent for service of process in state, general appearance -counterclaim by D (filing a complaint), pre-dispute contractual agreement -forum selection clause – Burger 4. Driving a car in the forum state – Hess 5. Committing a tortious act within the state (or in-state consequences) – Gray 6. Owning property in state if related to cause of action – true in rem - Pennoyer -for QIM (not related to property) - not sufficient but relevant – Shaffer 7. Conducting business in forum state – purposeful availment & reasonable -IS, McGee, Hanson, VW, Kulko, Keeton, Calder, Burger, Asahi C. P.J. requirements – can be waived 1. D minimum contacts (purposeful availment )w/ forum state (seeking to serve) -IS – minimum contacts & fair play and substantial justice -McGee – substantial connection – interests of P and forum state - reasonableness -Hanson – purposeful availment & unilateral activity of P is insufficient -Gray – stream of commerce, benefit of law – purposeful availment -World Wide VW – purposeful availment & reasonableness (if no 1 no look at 2) -conduct so reasonably anticipate being haled into court -Kulko – minimum contacts applied to domestic situation -Keeton – -P has no contacts, but action related to contacts of D with state -Calder – writer directed libel towards state as purposeful availment -Burger – if lesser contacts p.j. by establishing more reasonable – Brennan in VW -Asahi – three rules on minimum contacts but actually defeated on reasonableness -stream of commerce plus, stream of com., qualitative stream of com. -Helicopteros – general j. – contacts must be continuous, systematic & substantial -if contacts unrelated to dispute need more contacts to justify 2. D received notice & opportunity to be heard to satisfy constitutional DPC -Notice -Mullane - -notice must be reasonably calculated under the circumstances -Nat. Dev. - -usual abode w/ sufficient indicia of permanence & present -Opportunity to be heard 1. Strength of D’s private interest – one harmed by prejudgment attachment 2. Risk of erroneous deprivation – great risk procedure will err harder to pass 3. Interest of party seeking remedy
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-Doehr - should be given hearing before property attached – 3 part analysis 1. Minimum Contacts Analysis Pennoyer v. Neff – p. 27-37 -authority of every state is necessarily restricted by territorial limits F: Mitchell v. Neff – unpaid legal bills – filed in OR b/c Neff own land - default -Mitchell got writ of execution & bought property then sold to Pennoyer -Neff said no jurisdiction and Pennoyer said FFC clause – collateral attack I: Does state have p. j. D out of state but owns land in state? H: Yes when sued in rem – if had attached at beginning would have won -judgment lacks p.j. so no FFC 1. state has exclusive jurisdiction over persons/property in state 2. no p. j. over persons/property outside of state How assert Basis Extent of judgment In personam (dicta) Personal service of process in forum state Presence of person in forum state Unlimited personal obligation In rem Attach res (land) at beginning of suit Presence of D’s property in forum state Limited to value of property (res) in state
Hess v. Pawloski – p. 39-41 F: PawloskiMA sued HessPA based on car accident in MA -state statue that driving in state consent – served agent in MA (Sec. Of State) I: Can an out of state D be sued in the state where an automobile accident occurs? H: Yes - constructive consent – court makes exception of dangerous machines International Shoe Co. v. Washington – 42-49 – GB 120-123 F: DE corp with principle offices in St. Louis – merchandise was shipped in I: Is a corp considered present in state when there is no manufacturing or office? H: no longer presence (power of state) now minimum contacts & fair play -contacts related to dispute and continuous & systematic – see chart above 1. minimum contacts (a) continuous and systematic & given rise to cause of action – specific j. (b) sporadic or casual activities or single act no enough if cause unrelated (c) continuous activity subject to j. if cause not related – general - Helic (d) D sporadic activity may make subject on claims from activity - Hess 2. fair play and substantial justice –presence no longer necessary McGee v. International Life Insurance Co. – GB 127 F: DTX company bought a policy written in CA – only policy, but killed himself I: Does one K in a state constitute minimum contacts H: substantial connection – least contact with the forum state – expands IS -contacts: assumption of obligation, premiums mailed from CA, CA residents, -witness related to suicide in CA
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Hanson v. Denkla – GB p. 128-129 F: Trust executed in DE while living in FL I: Does FL court have p.j. over DE bank? – No – limits state court j. H: purposeful availment & unilateral activity of plaintiff insufficient -look at quality & nature of D’s activity - quantity -minimum contacts still required – between state & non-resident -unilateral activity by P not enough -lack of contacts: no office in FL, no business there, -did not arise there b/c created in PA Long Arm Statutes 1. Does the state statute allow jurisdiction? 2. Does the Constitution support this? Rule 4(k)(1)(a) – p. 32 -in federal court, p.j. is limited by state long arm statues – Burger King Gray v. American Radiator & Standard Sanitary Corporation – GB p. 142 F: Titan (DOH) produced valve sold to middle man (AmericanPA) -water heater explodes injuring PIL -Titan contests p.j. in special appearance – didn’t do anything in IL I: Does the presence of product in a state confer p.j. on producer? Yes H: tort performed outside forum but produces injury falls in statute -statute means tort occurs where wrong happened – expansive -statute will let anything permitted by Due Process Clause of Const -sell products taken to IL is contact -stream of commerce – purposeful availment World-Wide Volkswagen v. Woodson – p. 53-67; GB p. 131-135 F: PNY in accident in OK & sue D (distributorNY, NJ, CT & dealerNY) H: No j - Two tier test for j – if no to (1) no need to look at (2) (1) Purposeful act directed at forum state (seeking to serve) – KEY (a) mere foreseeability product reaching state does cut it -could be sued anywhere (b) D should reasonably foresee being haled into court (c) need reciprocity and predictability (d) unilateral activity of P not enough (brought car) – Hanson (e) D must serve or seek to serve market in forum (2) Reasonableness/fairness standard (important not key) – McGee (a) Burden of D (protect against inconvenient litigation) (b) Forum state interest (c) Interstate judicial efficiency (d) Substantive social policies (e) P’s interest -D: Brennan thinks majority looks too much at purposeful availment -in OK - accident, Ps in hospital, witnesses, & interest of state -Marshall – VW benefiting from OK isn’t mere forsee & reciprocity
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Kulko v. Superior Court – p. 66; GB p. 130-131 F: Father residing in NY sent his daughter to live with wife in CA -wife brought action in CA to get custody and more support H: applies minimum contacts to domestic – no j. -no purposeful availment of protection & benefit from CA laws -state has strong interest, but not enough Keeton v. Hustler Magazine, Inc. – p. 68-69; GB p. 135 F: P brought suit in NH b/c longest statute of limitations -D circulated there & P not resident of state but said rep damaged there H: P can sue D in state of D has contacts if related to effects of contacts -state has great interest in libel suits -P has no contacts, but action related to contacts of D w/ state Calder v. Jones – p. 69-70; GB p. 135 F: out of state report & editor sued for libel H: know harm caused by story would be felt at home of P -directed tort at someone was purposeful availment in CA -foreseeable would be haled into court there Burger King Corp. v. Rudzewicz – p. 72-87; GB p. 145-146 F: DMI contracted with PHQ in FL in a long term K for a franchise -P brought suit to terminate K and recover – K said FL law, but not ct I: Rule 4(k)(1)(a) - in federal ct, p.j. is limited by state long arm statues -to know if fed court has p.j. must ask if state court has p.j. H: j – purposeful availment so consider fair play & substantial justice -if lesser contacts can p.j. by establishing more reasonableness -similar to Brennan’s dissent in VW – gets his way – broad j -Purposeful availment – contacts with state 1. foreseeable injury – could see would be haled into court 2. long term contract, continuous negotiations 3. choice of law clause in K – not sufficient, but relevant -Reasonableness – 5 factors from VW and McGee D: White – more like VW – purposeful availment then reasonableness Asahi Metal Industry Co. v. Superior Court of CA – p. 87-95; GB p. 137-138 F: Zurcher had motorcycle accident in CA – filed in state court -Zurcher sues Cheng Shin (Taiwanese tire manufacturer) – settled -Cheng Shin sues Asahi (Japanese valve manufacturer) – left I: Does a CA court have p.j.? No – not even reasonable for Brennan! Purposeful Availment – three opinions – no rule – 5 said availed (1) O’Conner (+3) – stream of commerce + – aware not enough -enough to design, advertise, market, distribute system, advice (2) Brennan (+3) – stream of commerce – aware is purposeful act -purposeful availment achieved by place in stream of commerce (3) Stevens (+2) – qualitative stream of commerce -no necessary to discuss but get through volume, value, hazard Reasonableness -first time in a long time Court found unreasonable – even Brennan -one of those cases where reasonableness defeated purposeful avail
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General Jurisdiction – cause of action not arising out of contacts Helicopteros Nacionales de Colombia, S.A. v. Hall – p. 95-105; GB p. 123-125 F: HelicopPeru provided helicopter transportation in South America -plane crashed and estates of employees sued in Texas I: Does a TX ct have p.j. when cause of action not related to dispute? No H: general j. – continuous, systematic and substantial – more contact -contacts – CEO negotiated in TX, purchased helicop in TX regularly -pilot trained, employees visit, accept checks from TX bank -mere purchases not enough – concerns when dealing w/ foreign co. -if HQ would have been in TX would have been enough – Perkins -why no specific – argue related b/c flying planes -but for trips to T\X wouldn’t have occurred – weak chain of cause Consent – clearest way of making general appearance & getting p.j. (1) appointing agent for service of process in state (2) general appearance (3) counterclaim by D – filing a complaint (4) pre-dispute contractual agreement (5) forum selection clause Shaffer v. Heitner – p. 107-121; GB p. 149-156 F: Heitner brought shareholder’s derivative suit against 28 directors in DE -none of activities took place in DE, but company incorporated there -DE statute gave j. by QIR b/c stock considered there I: Does sequestering property allow j. w/o sufficient contact w/ state - No H: applies IS standard to QIR (unrelated) show minimum contacts -for QIM (not related to property) - not sufficient but relevant -property may give j. even if unrelated if leads to enough contacts -property is a contact but not sufficient – real better than intangible -may be sufficient for true in rem -can still enforce judgment – deals with underlying dispute Presence – Tag j. Burnham v. Superior Court – p. 121-136; GB p. 161-162 F: Burnham’s separated and Mrs. & kids moved to CA -Mr. came to visit on business and served with process for divorce -Mr. argued that only contacts were short business & kids visits I: Does service of process in a state give p.j.? -Yes H: no conclusion exactly why (1) Scalia + 3 – traditional rule – always j -tag j. is constitutional (no minimum contacts necessary) -tradition that presence = jurisdiction – validation is its pedigree -(Shaffer changed law even though tradition) -need a bright line rule – presence is always (2) Brennan +3 – contemporary fairness – apply min. contacts -need to apply minimum contacts – like Shaffer -purposeful availment – in state should be on notice -was served in the state, got benefits of state -tradition serves as notice & tagging is contact -notions of fair play & justice – not locked in time -seems to be saying – “make me an argument” – but usually
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2. Notice -once established court has authority to adjudicate then establish D received notice -Mullane - -notice must be reasonably calculated under the circumstances -National Dev. - -usual place of abode w/ sufficient indicia of permanence & present -Purposes of Notice 1. Increase accuracy of litigation (instrumental) 2. Right to be given notice when interests effected (intrinsic) -Where are requirements of notice? 1. Constitutional – Due Process Clause 2. Federal Rules of Civil Procedure – Rule 4 – National Dev. 3. State law -Rule 4 (e) – current rule of giving notice – service of process 1. law of forum state 4(e)( 2. law of service state 1) 3. personal service 4(e)( 4. “dwelling” service 2) a. dwelling i. indicia of permanence Nat. Dev. ii. present at the time decision b. personal of suitable age & discretion c. then residing 4(e)( 5. authorized agent 2) -Rule 4(f)(1) – any means internt’l agreed upon & reasonably calculated to give notice -Rule 4(h) –service on corporations -NOT any constitutional means or mailing (want clearer) or personal (too hard) -participants in one suit may be immune for process in others, some prohibit on Sunday Mullane v. Central Hanover Bank – p. 149-158; GB p. 167-168 F: Bank did small trusts & according to law petitioned court to settle accounts -gave notice by publication in local newspaper I: Is notice by publication sufficient? H: YES if people are unknown but NO if know residence & benefit – use mail -notice must be reasonably calculated under the circumstances -creates constitutional requirement for notice not found in Pennoyer -doesn’t have to be personal service – too expensive -some not reached – assume individual interests protected by majority -posting on property usually notice enough but not if know never there, etc. National Development Co. v. Triad Holding Corp. – p. 160-166 F: Khashoggi had default judgment entered – trying to declare void -process served in apt in NY to housekeeper I: Can a citizen of another country have a place of abode in US for service? H: Yes – if sufficient indicia of permanence & National Dev. he is there at time -usual place of abode w/ sufficient indicia of permanence & present -spent a lot of money on it, listed it as residence on application, there
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2. Opportunity to be Heard -Three part balancing test for due process – Doehr 1. Strength of D’s private interest – one harmed by prejudgment attachment 4. Risk of erroneous deprivation – great risk procedure will err harder to pass 5. Interest of party seeking remedy -Doehr - should be given hearing before property attached – 3 part analysis Connecticut v. Doehr – p. 160-166 F: Under CT law, attachment of Doehr’s home in assault & battery suit -got pre-judgment attachment w/ no prior hearing & no bond for damages I: Is pre-judgment attachment against due process? H: Yes – should be given hearing before property attached 1. private interest -interest in not having house attached is great -clouds title, taints credit, impairs ability to sell, mortgage problems 2. risk of erroneous deprivation -here serious risk won’t be proper – CT procedures no enough to guard -don’t know anything but P’s claim -none of procedure to guard against 1. bond 2. Hearing 3. Exigent circumstances 3. interest of party opposing additional process -what is required? - a hearing – need hearing before attachment -minority discusses bond – bond does things hearing can’t do -protects D, bond don’t excuse need for hearing -risk for P increases w/ bond – discourages random attachments -burden on P if have no $ to put up bond
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III.
Subject Matter Jurisdiction A. Introduction – CANNOT be waived -which court appropriate based on the subject matter – cannot be waived or consent -assume that p.j. has been established – this is a separate issue -any party can raise any time – even after judgment or on appeal – can move to state -Types of courts – law will be the same in state and federal court 1. Federal Court – limited jurisdiction – applies state law of where sits 2. State Court – general jurisdiction – any type of case -Federal – must fit within: 1. Article III - p. 552 – outer limits – never been expanded that far 2. Statute – how actually implemented – smaller circle –all but fed ? >$75,000 A. Amount in controversy - §1332(a) & §1332(b) – GB p. 42-43 -§1332(a) - must be greater than $75,000 claimed -Mas – look to amt claimed by P in good faith (not amt. recovered) -§1332(b) - winner gets costs not attny fees -if recovery too low, court can place costs on P B. Diversity - §1332(a)(1) & §1332(c) – GB p. 29-30 a. Complete - Strawbridge – must be complete – all parties both sides b. Determining diversity for individuals -Mas – citizenship: (doesn’t take husband’s) 1. citizen of U.S. and (if not then alien – see §1332(a)(2)) 2. domiciled within a state = presence & intent to remain c. Determining diversity for entities (corporations) -§1332(c) – duel citizens ship for corporations: (want to avoid bias) 1. State of incorporation and 2. State of Principle Place of Business (only 1) – Olson – rules a. Far flung activities – sole nerve center is PPB b. Sole operation in one state & executive in another -place of activities is most significant - muscles c. Passive activity in one state & brain in another – brain -if unincorporated – citizen of every state in which have members C. Alienage - §1332(a)(2) – GB p. 32 -Mas – no U.S. citizenship gives diversity -in 1988 permanent residents are citizen of state where domiciled -if don’t have a country then can’t use federal courts -if out of country but still U.S. citizens no domicile state can’t use D. Federal question - §1331 – GB p. 21-23 -§1331 – “actions arising under the Constitution, [federal] laws” -no amount in controversy requirement -Mottley - must be “Well pleaded complaint” -must be a federal claim by P not a defense by D -Removal - §1441, §1446(b) – P’s choice where to file, but D remove state to fed -D can’t remove if case filed in D’s state of residence 1. if P could file in federal court but filed in state instead - §1441(a) -exception: §1441(b) -diversity cases in D’s home state can’t remove 2. all D’s agree - §1446(b) 3. within 30 days from time case become removable - §1446(b) – Noble -absolute limit one year if brought under §1332 (diversity, alienage)
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B. Amount in Controversy - §1332(a) & §1332(b) - GB p. 42-43 -§1332(a) – must “exceed the sum or value of $75,000” -based on claim by P in good faith, not amount actually awarded - Mas -§1332(b) - winner gets costs (don’t include attorney’s fees – American rule) -if P recovers less court may decide to deny P costs & impose on P -but if in good faith, generally is fine -doesn’t have to be $75,000 for each D C. Diversity of Citizenship §1332(a)(1) & §1332(c) -Purpose – avoid potential bias – give federal so have neutral forum f adjudication 1. Complete Diversity – §1332(a)(1) - GB p. 27-28 -is an interpretation of statute – Constitution doesn’t limit, but statute interpreted -§1332(a)(1) & Constitution p. 552 – both say “citizens of different states” -Strawbridge v. Curtiss - p. 191-192, GB p. 27-28 -§1332(a)(1) – interpreted as complete –all parties different both sides 2. Determining Diversity of Individuals– §1332(a)(1) - GB p. 29-30 -Citizenship – determined when filed and doesn’t change after 1. Domiciled within a state and– if no state domicile no diversity a. resident of state Physical and mental b. intent to remain aspects 2. Citizen of U.S. – if not citizen then alien so §1332(a)(2) Mas v. Perry – p. 193-198, GB 27 F: Mrs. Mas from MS in school in LA, married to Mr. who was French -landlord in LA spying on them through 2 way mirrors -later moved to IL then returned to LA I: Is there diversity j to get into federal court? – Yes – diversity & alien H: Mrs. – citizenship is U.S. and domiciled in MS 1. Domicile – MS – never intent to remain in LA 2. Citizen of US – should be forced to take husbands -doesn’t matter than moved to IL and back b/c at time suit filed 3. Determining Diversity of Entities (Corporations)– §1332(c) - GB p. 33-34 -§1332(c) – corporations considered citizens of: (Randazzo - must specify proper) 1. State of incorporation and 2. State of principle place of business (only 1) – Olson – rules a. Far flung activities – sole nerve center is PPB b. Sole operation in one state & executive in another -place of activities is most significant - muscles c. Passive activity in one state & brain in another – brain -want to decrease bias – if considered hometowner then no need to put in federal -if unincorporated - GB p. 36 – citizen of every state in which have members -if members in all 50 states then could never get into federal court -partnerships, trade associations, etc.
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Randazzo v. Eagle-Pichner Industries, Inc. – p. 199 -judge upset because P doesn’t specify for D 1. State of incorporation and 2. State of principle place of business -need to know both because might not be diverse & that is key part of fed -dismisses with prejudice – can no longer file anywhere J.A. Olson Co. v. City of Winona (Mississippi) – p. 201-207 F: P had executive offices in Chicago and sole plant in Winona, MS -in MS does some hiring/firing, employees, trade association members I: Where is the PPB to determine diversity? MS H: To determine PPB use Total Activities Test a. Far flung activities – sole nerve center is PPB b. When sole operation in one state & executive in another -place of activities is most significant - muscles c. When passive activity in one state & brain in another – brain -avoid bias – determine connections to community - hometown D. Alienage Jurisdiction – §1332(a)(2) - GB p. 32 -§1332(a)(2) – citizens or subjects of a foreign state -as of 1988 permanent residents are citizen of state where domiciled -if don’t have a country then can’t use federal courts -if out of country but still U.S. citizen and no domicile state can’t use either Mas v. Perry – p. 193-198, GB 27 F: Mr. Mas from France in school in LA, married to Mrs. from MS I: Is there alienage j to get into federal court? – Yes – diversity & alien H: Mr. – citizenship is France and no state domicile (before 1988) E. Federal Question – §1331 - GB p. 21-23 -§1331 – “actions arising under the Constitution, [federal] laws, or treaties” -no amount in controversy requirement -narrower than Article III -Mottley - must be “Well pleaded complaint” -must be a federal claim by P not a defense by D -streamlines federal courts & determines j before case starts -but keeps fed courts from making judgment on some fed questions Louisville & Nashville Railroad Co. v. Mottley – p. 215-220, GB – p. 20 F: 2 train collided and Mottley’s injured – got lifetime passes to settle -Congress made rates dependent on how far go – no more free rides -RR refuse Mottley’s passes – suit brought in federal court -Mottley’s argued that breached K using statute I: Is there a federal question under §1331 concerning statute? No - claim H: P’s complaint was: 1. had K and 2. D breached -D’s possible defense: 1. statute excused; 2. SOLim 3. settled -Well Pleaded Complaint rule – fed quest must be part of complaint -must look at claims not defenses to establish federal question End: cases did come back to Supreme Court so did involve fed question -was within Constitutional scope of federal jurisdiction
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F. Removal – §1446, §1446(b) - GB p. 55-56, 59 -gives D some say if case will be in federal or state court -D can’t remove if case filed in D’s state of residence -removal statute narrower than diversity statute 1. if P could file in federal court but filed in state instead - §1441(a) -exception: §1441(b) -diversity cases (not federal) filed in D’s home state can’t remove -can remove on diversity only if no D are citizen of forum state 2. all D’s agree - §1446(b) 3. w/in 30 days from time case become removable – §1446(b) - Noble -absolute limit one year if brought under §1332 (diversity, alienage) Noble v. Bradford Marine, Inc. – p. 239-245, GB F: P owns boat & D owns marina filed in state court on admiralty §1333 -P later amends to add another D – flaming ship who burned down -new D tries to remove w/o Bradford consent & fails - §1446(b) -gets Bradford’s consent and tries to remove again I: Does addition of new D cause time to start over for removal? No H: Must remove within 30 days of time when can remove - §1446(b) -is binding on subsequent added Ds G. Supplemental Jurisdiction – p. 238 -can add state claim to federal claim in fed. Court if closely related -federal claim must be an independent basis for j
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IV.
Venue A. Introduction - GB p. 79-82 -where, within a system, a lawsuit can be filed – can be waived -concerned with convenience of parties – especially the D -largely defined by statues – states have own statutes and §1391 -local actions – involve land (venue proper where property is located (in rem or QIR) -transitory actions - greater number of cases – must decide which venue is proper -§1391 – venue is the same for those brought under diversity (§1332) & those not -venue based on status at time action was commenced – not time of event (1) if all D’s reside in the same state – district in which any D resides a. individual – reside in their domicile b. corporations - §1391(c) – assume district like state – where ever p.j. c. aliens - §1391(c) –can be sued in any district – doesn’t matter where living (2) district in which substantial part of events giving rise to claim occurred -not associated with purposeful availment -could be more than one district – Bates 1. text – where harm occurred 2. purpose of venue – Leroy test a. protect D from unfairness and inconvenience of trial location b. location of evidence and witnesses c. familiarity of judge with law d. P’s convenience is not relevant e. more than one district could qualify (3) if no other district – district where any D is subject to p.j. when action begun -fallback provision – rarely used – event overseas & Ds living everywhere -when case removed by §1441 – goes to federal district in that area -§1391 doesn’t matter b/c venue is proper in place where removed -waiving p.j. does not make venue proper – could still be improper when commenced B. Transfer - GB p. 85-87 -P gets 1st choice in form but D can seek to transfer within system only -transfer only to forum where suit might have been brought – have p.j. & venue -if properly removed from state to federal then venue is proper 1. venue improper a. §1406 transfer b. dismiss 2. venue proper a. §1404 transfer - “convenience of parties & witnesses” or “interest of justice” b. if transfer not possible, dismiss forum non conveniens (FNC) – all proper i. forum must have been proper to begin – had p.j., s.m.j., & venue ii. must be alternative forum available – generally foreign court iii. Piper 1. change of law – no role except if so bad that not alternative at all 2. presumption in favor of P’s choice of forum – less in foreign P’s 3. Gilbert factors – private (convenience) & public (justice) 3. choice of law – which state’s choice of law rule will apply a. if §1404 transfer for convenience get choice of law rule of state where filed b. if §1406 transfer b/c improper get choice of law rule in state where transferred
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Bates v. C&S Adjusters, Inc. – p. 255-258 F: federal statute give protection against debt collectors – PWDNY & DWDPA -letter about debt forwarded from former address in PA to current in NY -P says injury occurred when letter opened in NY so venue proper there -got into fed court on diversity – dismissed b/c improper venue – I: In fed court b/c diversity is venue proper in WDNY? Yes – §1391(b)(2) H: §1331(b or a)(2) – where substantial part of events occurred -receipt of a collection notice is substantial part of events giving rise to claim 1. text – where harm occurred – occurred where letter opened & got upset 2. purpose of venue – Leroy test a. protect D from unfairness and inconvenience of trial location b. location of evidence and witnesses c. familiarity of judge with law d. P’s convenience is not relevant e. more than one district could qualify – says “a district” not “the district Piper Aircraft Co. v. Reyno– p. 264-276, GB p. 88-89 F: Plane crashed in Scotland killing Scots, ReynoCA appointed administrator -sued plane manufacturers PiperPA and proper manufacturers HartzellOH -brought in state court in CA, removed to federal court in CA -transferred to PA b/c no p.j. over Hartzell (§1404 Piper & §1406 for Hartzell) I: Does FNC apply even if unfavorable law? Yes – had p.j. & venue bring Scot H: Was venue proper to being with? Yes -p.j. – Piper manufacturers & Hartzell meets minimum contacts -s.m.j. – diversity -venue – proper b/c was removed and venue is proper wherever removed -Is there an alternative forum? Yes – Scotland even if law less favorable 1. change of law – plays no role except if so bad that not alternative at all -could say get that §1404 gives choice of law where filed if proper -so should give same law if transfer & if less favorable not same 2. presumption in favor of P’s choice of forum – lessened in foreign P’s 3. Gilbert factors – private and public -private factors = convenience of litigants -public factors = interests of justice -s.m.j. – filed in CA where states have general jurisdiction -case removed to federal – s.m.j. probably diversity -p.j. – Piper sells lots in CA – probably enough for general -Hartzell – propellers like steam of commerce -venue – when case is properly removed from state to federal then venue is proper -D’s like to remove and then transfer -choice of law – venue proper got state filed (Piper = CA) if not then where land Overview: Where case will end up depends on: 1. Personal Jurisdiction – reasonableness, sovereignty, federalism, 2. Venue 3. Subject Matter Jurisdiction 4. FNC – only for extreme cases – must have alternative foreign forum -what if one of these things was missing – what would the system look like
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V.
Pleading A. Complaint and Response - p. 357-383 1. Introduction -balance between fairness & justice – want to decide on merits not technicalities 1. Common law – very technical, but wanted to narrow questions 2. Code – plead facts – give basics but still use depositions – technical 3. FRCP – emphasize notice – less specificity required (compared to code) -extensive use of discovery -Rule 8 - Pleading - Complaint should contain: 1. short plain statement of grounds of jurisdiction of the court (s.m.j.) 2. short plain statement of the claim 3. demand for judgment – relief required -examples – Form 3 (p. 144) and Form 2 sets out allegation of jurisdiction 2. Sufficiency of Complain A. Legal Sufficiency – Rule 12(b)(6) – like demurrer – legal so what -Rule 12(b)(6) - failure to state a claim on which relief can be granted -must allege why liable -elements of claim have been met (K, breach, injury; duty, neg. CIF, PC, dam) -can’t bring up additional facts – if disagree then have to file answer B. Factual (formal) sufficiency Conley v. Gibson – p. 373-374, GB p. 253 -“complaint should not be dismissed for failure to state claim unless it appears beyond a doubt that P can prove no set of facts in support of his claim which would entitle him to relief.” -policy decision to be lenient – but want to be lenient C. Litigation reality – want to be as clear as possible Dioguardi v. During – p. 370-376, GB p. 254-255 F: Complaint written in confused and broken English H: Can sift through language and figure out complaint – let go forward -liberal rules about what is clear – this is most extreme case -throwing open wide doors to federal court houses 3. Special Pleading Rules – exceptions to liberal pleading A. Rule 9(b) – fraud -most common – must plead with particularity -P often say need discovery to get exact nature – know something B. Rule 9(g) – special damages -special damages = lost profits -general damages = benefit of the bargain, etc. C. Other instances no covered by Rule 9 – Leatherman Leatherman v. Tarrant County – p. 377 – 383 F: Municipality sued under civil rights act. Municipality and lower court said had to plead a higher standard. The higher standard would prevent from winning, which is what the substantive law does as well. H: Supreme Court says that there is no heightened pleading requirement -if it is not expressly included in Rule 9 then excluded from heightened -court feels swamped by civil suits & wants heighten but Court strikes
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4. Inconsistent and Alternative Pleading – p. 383-387 -Rule 8(e)(2) – models of liberality – just has to be reasonable -Rule 11 – reasonable basis is reasonable factual investigation -can plead alternative but need reasonable basis -alternative theories can also be pleaded in defense McCormick v. Kopmann – p. 383-387 F: In count I – Kopmann was negligent and husband was not. In count II – husband was drunk and Huls served him I: Does inconsistency in pleadings bar recovery? No H: court found state statute allows alternative pleadings like Rule 8(e)(2) -want to make sure jury chooses something – P doesn’t loose on both -try to avoid old whipsaw problem 5. Voluntary and Involuntary Dismissal – p. 387-391 -voluntary – Rule 41(a) – by the P 1. Notice of dismissal a. Unilateral – time limit -any time before answer or motion for summary judgment b. with prejudice if previous dismissal -second time is voluntarily dismissed is w/ prejudice Default rule 2. Stipulation – document to which all parties agree is w/o 3. Court Order prejudice -involuntary – Rule 41(b) -if judge makes comment then whatever judge says, but -default is with prejudice except for: a. lack of jurisdiction – service of process, p.j., s.m.j. Has nothing to do with merits b. improper venue so w/o [c. failure to join indispensable parties] prejudice
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6. Defendant’s Responses – p. 391-399 -pleading – document set forth factual & legal contentions (complaints, answers) -motion – request for order -defense – ground for not being liable – can assert by motions or pleading a. Pre-Answer Motion -disadvantage – can delay lawsuit -advantage – if can dismiss can get out of the way up front i. Delays D’s obligation to answer – Rule 12(a)(1) -if motion denied gets and extra 10 days – must be reasonable ii. Consolidation – Rule 12(g) -can file 1 motion before answer - Jones iii. Waiver – Rule 12(h) -must assert p.j., venue, & process at same time (can assert in answer) -if isn’t included then considered waived -make motion to dismiss for lack of p.j., venue, & process -hierarchy of when can raise 1. p.j., venue, & process must be done immediately 2. Rule 12(b)(6) & (7) – not waived can assert later even in court 3. Rule 12(b)(1) – lack of smj can be asserted any time -Jones v. Clinton – p. 281-284 -President wanted to assert temporary immunity by motion -then if loose on that want to assert other defenses -Jones upset b/c only get 1 pre-trial motion -ruled for Clinton but hard to see how under FRCP -right answer = get 1 motion if loose must file answer -if don’t include p.j., venue, & process then waived b. Answer -don’t have to file motion – can assert defense p.j., venue, process in answer -if good defense on merits & lack of p.j. then answer -FRCP don’t require that p.j. be asserted immediately or waived -in answer can admit, deny or say lack of information -generally two parts a. comment on all allegations b. then assert defenses – if no motion talk about p.j., venue, & process -generally admitting some, denying most -if going to deny then deny – deny and state what is true
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