Civil Procedure-Freer
Erica Stubbs
Personal Jurisdiction
Friday, October 01, 2004 7:12 PM I. Personal Jurisdiction (PJ): A. Overview: A question about which State a defendant may be sued in. Both State & Federal Courts must adhere to PJ rules. The court can exercise 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 also have jurisdiction. 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 every other state in the Union. i. Exception: If no personal jurisdiction in the original case, then full faith and credit is not given. Divorce proceedings are not a personal jurisdiction question. Specific Jurisdiction: Jurisdiction that stems from the defendant's having certain minimum contacts with the forum state. The court hears issues that arise from those minimum contacts. General Jurisdiction: A court's authority to hear all claims against a defendant at the place of domicile or the place of service, without any showing that a connection exists between the claim and forum state.
B. Methods to Attack PJ: Two Ways 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. Appearance in forum must be limited to defending the PJ, D should pose only one legal issue to the court. Must be prepared to litigate if loses.
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2. Collateral Attack: A separate lawsuit initiated, usually after the default judgment in the original suit. D may argue only the PJ issue, not facts of th case. If collateral attack fails, D cannot litigate on the merits of the case. D no longer has that option. C. Corporations and Personal Jurisdiction: Corporations- Are separate entities than the people who own and run it. Are created by state laws. 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; Follows that 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 certain conditions. Most states require corporations that do business in the state to place an agent for process service for suits arising in the state. Giving that state PJ over them. The Commerce Clause: States should not inhibit interstate commerce. If the corporations business model is interstate bus. As opposed to intrastate bus., then the State does not have the right to keep out and cannot coerce consent. One test for doing business is “solicitation plus”: If a company solicited business plus something else, then that company can be sued (Don't need to use this in analysis)
II.
4 Types of Personal Jurisdiction: 1. In-Personam: Jurisdictional Predicate over the Person Dispute can be about anything Judgment Creates a personal obligation to pay, Use FFC to enforce judgment anywhere Notice: Service Process 2. QIR2: Jurisdictional Predicate over the Property Dispute can be about anything Judgment determines rights of the parties, but only to the extent of the value of the property. (does not create a personal
obligation to pay; did not get power over the person, jut over the person's property)
Notice: Attach property (could be a debt) at outset of litigation, because it gives us...
3. QIR1: Jurisdictional predicate over Property Dispute about ownership of the property
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Judgment determines ownership of the property between litigants Notice: Attach property at outset of litigation
4. True InRem: Jurisdictional Predicate over the Property (not necessarily real III.
property)
Dispute about ownership of the property Judgment determines ownership as to the whole world Notice: Attach property at outset of litigation
How a State Can obtain Personal Jurisdiction (Jurisdictional Predicate): Four Ways 1. 2. 3. 4. Presence in the Forum & Service Process Consent by D Domicile in Forum Minimum Contacts in the Forum by D (Another way of est. Presence)
1. Presence in Forum: PENNOYER PRINCIPLE: The State has power over people and property within its boarders o Every State exercises exclusive authority over things in that State. o No State can exercise direct jurisdiction and authority outside its territory, to do this would be a violation of the 14th Amendment Due Process Clause. Generally, Serving Process on the defendant while in the forum state will give the state PJ. The defendant must be present in the state when served with process.
Mere Presence/Transient Presence): Two Schools of Thoughts on Burnham In a situation where the D has very minimum contacts in the presence and the claim is unrelated to the D contact in the state. (a general jurisdiction case for individuals. Helicopteros, a general jurisdiction case for Corporations) Two Schools of Thought: 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. 1. Health and Safety of the Transient is protected by the state's police and other services 2. The transient is free to travel in the state 3. The transient likely enjoys the fruits of the State's economy.
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4. Slight Burdens on the D with modern transportation, plus the D has already traveled to the forum once, no burden in coming again. Criticism: Difficult to understand how this reasoning wouldn't provide jurisdiction over anyone who has spent a couple of days in the forum. 2. Consent by Defendant: P consents to jurisdiction in State by making a claim in that State; quid pro quo. Parties may also consent to jurisdiction A failure to raise a timely objection also constitutes a waiver of the objection. 3. Domicile in the Forum: Domicile alone is sufficient to establish In Personam jurisdiction, even if the defendant is not physically served there. The state has to have taken steps to reasonable notify you.
Milliken v. Meyer-jurisdiction based on domicile-your true home.
4. Minimum Contacts in the Forum: (Essentially is a consent to jurisdiction because
the D has purposefully availed itself of the benefits and protections of the Forum State's Laws)
Two policies for having “Minimum Contacts” Rule: 1. Protects Interstate Federalism, by limiting state power over jurisdiction. (Contacts).
i. ii. Purposeful Availment Forseeability of being haled into court
2. Protects D against burden of litigating in an inconvenient/unfair or distant forum. (Fairness-Five Factors)
i. ii. iii. iv. v. Burden on D (always a primary concern, but will be considered in light of the others) Forum State’s Manifest Interest– states have interest to provide courtroom to its residents and to adjudicate dispute P’s interest in obtaining convenient and efficient relief. Interstate judicial systems’ interest in obtaining most efficient resolution of controversy Social policies
1. Analytical Framework-Minimum Contacts (Presence): (Shoe Test) Defendant 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. o If there are NO Contacts, there is NO Personal Jurisdiction o Elements of both Presence and Fairness, but you must have contacts (presence) before you can discuss Fairness. A. The Contact is Related to the Claim:
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1. Related & Continuous and Systematic Contact = Yes on PJ 2. Related & Casual Contact= Maybe on PJ Yes on State Interest Claims w/on Specific Jurisdiction McGee & Hess B. Contact Unrelated to the Claim: 3. Unrelated & Casual Contact= 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
4. Unrelated Claim & Continuous and Systematic Contact = Maybe
on PJ
Could be yes on cases where the defendant is subject to general jurisdiction because of the strong nature of the contacts. ie Corporations. Could be that contacts in this care are only continuous and systematic if the D has an office or actual operation in the forum. In Helicoptoreos, the D engaged in mainly purchasing contacts in the forum. Q is when, are contacts for general jurisdiction (unrelated claim sufficient?) Academic Writings assert: There should be a quantitative assessment (measure in dollar value of the business) of the contact and a qualitative assessment (measured by the percentage of business done in the forum). Could also argue that based on tradition, service of process of the D corporation will be sufficent
General jurisdiction/Corp – 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. Relatedness/Purposefully Avail: 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 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. Hanson o 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 and purposefully avails itself. Gray 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.
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A choice of law provision in a contract, by itself is insufficient to confer personal jurisdiction. o 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 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. 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-ofstate 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. Stream of Commerce: Three Schools of Thought o Defined as: When Manufacturer A sells parts to Company B who integrates the part into a final product that is shipped to Forum C. ie. When the D sends a product to another company; and this other company ships product into the Forum sate. If the D sends something from one state to another, it is not stream of commerce; it is direct availment. o 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. Purposeful Availment is conduct that shows the D’s intent to serve the 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. O'Connor View 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 – Merely placing a product into the stream of commerce is not in and of itself purposefully directing it toward a State. Purposeful availment requires more than the awareness that product will end-up in another state;
o
o
o
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there must be an 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, forseeability of suit, and a relevant contact. As long as the D "is aware that the final product is being marketed in the forum state, the possibility of a lawsuit there cannot come as a surprise." "The litigation would not impose a burden for which there was no benefit." 3. Stevens – look to volume, value of product to determine purposeful availment and forseeability. o In most “stream of commerce” cases, the D has made money in the state; this seems to be purposeful availment
Forseeability: Is the D's forseeability of being haled into court in the forum. For Corporations: The forseeability 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.” WW Volkswagon 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.
A “unilateral act by a third party” does not represent a contact with the forum state. It is not foreseeable by the D.
Relevant Statements Regarding Presence & Min. Contacts: 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. 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
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litigation by procuring insurance, passing the expected costs onto customers, or severing its connection with the State. WW Volkswagon Burger King... 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 2. Analytical Framework-Fairness: The protection against inconvenient litigation is
typically described in terms of fairness.
Five "Fairness" Factors:
i. ii. iii. iv. v. Burden on D (always a primary concern, but will be considered in light of the others) Forum State’s Manifest Interest– states have interest to provide courtroom to its residents and to adjudicate dispute P’s interest in obtaining convenient and efficient relief. Interstate judicial systems’ interest in obtaining most efficient resolution of controversy Social policies
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.” 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. Wealth is of no consideration when determining fairness How to Prove Jurisdiction as Unfair: The D has the burden to prove “compellingly” that jurisdiction is unfair. Due process does not say that the defendant has the right to be sued in the most convenient forum. The test is showing that you are “gravely inconvenienced” as compared to your opponent. “It is so gravely unfair that D is on a severe disadvantage to litigating there”.
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That employing jurisdiction makes litigation so gravely difficult and inconvenient that a party is at a severe disadvantage compared to his component. How D shows that jurisdiction is unconstitutional.
State's Interest: State has a manifest interest in providing effective means of redress to it's citizens. A single contact w/a forum may be enough if there are other factors, such as the state interest. McGee Implied Consent: States can impose complied consent on individuals and corporations in area where there is a legitimate State Interest. Usually limited to Specific Jurisdiction Cases. Hess v. Pawloski: State interest in governing roadways; thusly, every driver on a given state's road submits to service process on his agent, the secretary of state. For Corporations, a court can coerce implied consent by making them appoint a person for service process by doing business in the state.
Cane v. New Jersey-State can force you to appoint someone as a service for service process. In International Harvester, the court held that even though there was no consent to jurisdiction, the defendant was present in the forum.
3. Assessing QIR2 -Under a Minimum Contacts Framework Changes after: Shaffer v. Heitner Summary of Changes: Court concludes that for QIR-2 cases in which the property seized is completely unrelated to the plaintiff's cause of action, the seizure of property is essentially a substitute for jurisdiction over the person. So, if jurisdiction over the person would require assessment of minimum contacts, so should a QIR-2 establishment of PJ. Rule doesn't really affect QIR & QIR-1 cases because the presence of property in the forum probably satisfies the requirement that the defendant meet the minimum contacts test. The presence of the property, by itself, will generally satisfy in rem, QIR-1 cases, and QIR-2 cases in which the property caused the injury suffered by the plaintiff, and in cases involving status (ownership of the property). Rule affects only QIR-2 cases in which the property did not cause the injury. True In Rem & QIR1: In these cases 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) II. Because property was located in the forum, we can presume that he expected to benefit from the forum’s protection of his interest. (shows
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D has purposefully availed himself to the forum by “soaking up benefits”) 1. 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) 2. 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. QIR2: 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. III. Statutory Limitations on PJ: A. A state can only have personal jurisdiction if: 1. It must have a statute that allows for the exercise of personal jurisdiction 2. On the exam, even if I think the Statue is met, must still conduct the
constitutional analysis.
3. Different States can interpret the same language different ways State has jurisdiction over one who “Commits a tortuous act or omission in State” Illinois Rule: Reasons that no behavior is tortious until someone is hurt. So if the injury takes place in the forum state, the statue is satisfied. Because plaintiff was injured in Illinois, defendant committed a tortuous act or omission there. Jurisdiction is ok in the above scenario because the tort occurred in the
forum. Emphasize the word tort, (injury) happened in the forum.
NY Rule: Emphasizes the language act or omission and insists that the defendant's behavior (not its effect) must take place in the forum. For example: 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.
B. "Tortious Acts or Omissions Within this State":
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a. Note that without reference to the word omission, it would be arguable that the statue should only apply to intentional torts and not to torts based upon omissions, such as some forms of negligence. C. "Commits a tortious Injury in this state caused by an act or Omission outside the state..." a. This provision is usually satisfied only if the plaintiff could make an additional showing-either that the defendant engaged in some persistent course of conduct in the forum or derived substantial revenue in the forum. D. Note that having both B & C in a long arm, has in essence told the courts not to adopt the IL interoperation of B "commits a tortious act or omission in the forum". This would render C useless, because it a tortious act within the state because the P was injured there. However courts have taken liberty in construing the statues: a. Option 1: In some scenarios the court could state the statue isn't met for a person committing a tortious act outside the state that causes an injury in the state, if that person doesn't have conduct that derives substantial revenue. b. Option2: It is possible that a court would adopt an IL interpretation of A (even though it also has C in the statue) and find jurisdiction under A. If in Georgia, the court will adopt the IL interpretation if the tort involves personal injuries, but not if the tort is fraud.
E. Statues that Most States Have: i. Attachment statutes (only for in rem & QIR) ii. Inpersonam via Service Process in the State iii. Persons with a Domicile in the State iv. Entities Incorporated in a State v. A non-resident motorist Statue vi. Long-Arm Statute California type – jurisdiction is to the full extent of constitution Laundry list type – spells out specific things a non-resident can do to subject himself to jurisdiction. Courts interpret the same statutory language in different ways. Read the language very carefully. If it doesn't state omission and the client has done negligence, you can argue that the statue doesn't apply. F. PJ and the Internet: Leading case in this area is the Zippo case. very influential case in internet personal jurisdiction. Three part system: Depends upon the interactivity of the website If website is interactive where you ship items etc., will prob. find jurisdiction in the state. If simply passive, and posting information then no personal jurisdiction Maybe case, if you interact info but it's uncertain the nature of the interactivity
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Notice
Friday, September 17, 2004 11:01 PM Notice has both a Constitutional and Statutory Element The Due process clause sets the constitutional minimum standards for notice. In addition, all states have rule or statues that spell out the mechanics. These rules are frequently more demanding than the constitutional standards Federal Rule 4 provides the FRCP Standard. Governs in federal courts. If you satisfy Rule 4, there is no doubt that the service will be constitutional. Some states give more protections than Due Process requires. If statue meets Rule 4, then probably constitutionally valid. Always constitutional even if D does not get notice
A. Constitutional Standard for Notice: Notice must be reasonably calculated under the circumstances to apprise the person of what is going on. Mullane v. Central Hanover Bank & Trust Co. US 1950 [Constitutional test for notice] i. ii. Missing or unknown Persons: Notice by publication is ok Those who could be discovered upon investigation: Notice by Publication is ok o Don't have to go track them down Known Present Beneficiaries: Notice by publication is not ok o Not reasonable to give them only publication notice o Mail is ok Don't have to send to everyone, but most is ok.
iii.
Federal Court Jurisdiction: Determining Service of Process for Federal Court Cases. Need to Asses Three Things: A. Territory for Service B. Manner of Service C. Amenability A. Territory for Service i. Service Process or filling a Waiver of service is effective to establish personal jurisdiction over the person of a defendant only if, the state court in which the federal court sits would have personal jurisdiction. For both diversity and federal question cases. ii. For both diversity and federal question suits, service of process may be made only within the territorial limits of the state in which the District Court sits.
I.
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iii.
Or, anywhere else the long-arm statue of the state where the district court sits permits. 4(K)(1) i.e P sues D in federal court in the N.Dist of Ohio. Whether the suit is
based on diversity or federal question, service will be territorially valid if D is served process anywhere within the State of Ohio, since this is the state where the Dist. Court sits.
iv.
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] 4(K)(1)(B) When authorized by a statute of the US
v.
B. Manner of Service: Statutory Requirements for Notice: Rule 4 Elements
i. ii. iii. iv. v. Process Choices for Serving Process-Individuals Choices for Serving Process-Business Waiver of Service Process Immunity
i.
Process Process Consists of: 4(c) (1) Summons o comes from the court- a msg. from the gov. signed by the clerk Copy of Complaint o tell D what he's being sued for o Only have to serve once to defendant. Who Can Make Service: 4(c) (2) Service can be made by any person who is not a party, and 18 or over. o The lawyer can do it if he is not a party, but bad form. o Does not have to be an officer or a marshal. Procedure of Process Server: 4(l) The process server is required to apprise the court of the service of process. Needs to show proof of service to the court. o The person shall make an affidavit o If process server fail to do this, it does not effect the validity of the service. o If process server is a non Marshall, the person must make an affidavit. When to File: 4(m) P has 120 days after filing complaint to serve process o IF P shows good cause for missing the 120 days limit, you shall (the court will) give an extension.
i.
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o
If cannot show good cause, the court can: dismiss without prejudice, means you can file the claim again. Dismiss with prejudice, you cannot file again.
Court also has the authority to extend the time period if it chooses to, if you show good cause.
ii.
Choices for Serving Process-Individual: i. P can Service of process by any way permitted by the sate law, in the state of which service is effected. 4(e)(1) Can Serve Process by mail if the State law provides for it. Most State Long Arm statue or Non-resident Motor Statue allow service process by registered mail. Notice doesn't actually have to be received.
ii.
Substituted Service Requires the Following: 1. Needs to be the party's dwelling house or place of abode. 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. Can have more than one dwelling house. National Dev.Co & Triad
Holding
2. Need to deliver a copy of the summons to some person of suitable age and discretion. 4(e)(2) AND 3. This person must reside at the place. 4(e)(2) Freer: Thinks the person there for holiday is not
residing, but someone there for extended times might be.
D doesn't have to be there at the time of service process
iii. iv. v.
Actual Notice or D knowing about the suit is not sufficient to establish Service Process. You can also Process Serve on a person's agent. Can attach a property if you can't get in personam service. 4(n)(2)
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ii.
Choices for Serving Process-Business Can Serve Process On: i. ii. Corporate Officer 4(h)(1) Managing or General Agent Or anyone authorized by law. 4(h)(1) What constitutes a Managing and General agent? o Doesn't have to be specifically authorized o Secretary to managing agent probably not, have to look at the job responsibility, it could. o Can use the state law 4(e)(1). If state law allows a rule you can use it. So if state law allows process serve on a secretary, then you can.
iii.
Waiver of Service Process-Rule 4D Applies only to Federal Courts i. ii. P must notify D of commencement of action and request that the D waive service of summons. 4(d)(2) The notice and request for compliance: Shall be in writing 4(d)(2)(a) Shall be addressed directly to the D 4(d)(2)(a) Shall be sent through first-class mail or other reliable means4(d)(2)(b) Must have a pre-paid means of compliance in writing (why fax is a bad idea)4(d)(2)(g) Must provide an extra copy of the process 4(d)(2)(g) Shall be accompanied by a copy of the complaint and identify the court it has been filed in. 4(d)(2)(c) Shall set forth the date on which the request was sent 4(d)(2)(e) D has at least 30 (60 if D addressed outside of US) days from the date the request was sent to return the waiver. 4(d)(2)(f) 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. 4(d)(3) but only 20 if D does not waive. P files waiver of service after the D has returned it and the action proceeds 4(d)(4) no proof of service is required If D does not accept waiver, then he must pay the cost for service on himself. 4(d)(5)
iii. i.
i.
ii.
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iii.
A D who waives service of summons does not waive any objection to venue or jurisdiction. 4(d)(1)
iv.
Immunity 1. Person comes into a State to participate in another suit. 2. Person induced into the State through fraud or deceit.
C. Amenability to Suit i. Must conduct a test to see whether D's contacts with the forum state are sufficient for personal jurisdiction. ii. Federal Q Cases: In federal question cases amenability to suit depends solely on federal law. However, most federal courts in FQ cases have held a defendant to be amenable to suit if jurisdiction could be constitutionally exercised over him in the state court of the state where the federal court sits. Means that in some cases where the state's long arm statue will not allow jurisdiction, the federal court can still hear based on the constitution. But only in cases where the long arm statue allows service on the defendant, that the federal court can reach longer. iii. Diversity of Citizenship Cases: The federal court exercises only the jurisdiction that is allowed by the law of the state in which they sit, even if this law does not go to constitutional limits of due process.
Subject Matter Jurisdiction
Friday, September 17, 2004 11:02 PM Subject Matter jurisdiction: A. Overview: a. SMJ is Concurrent and can go to either Federal or state Court. Up to the P to decide. b. State Courts/Trial Courts-Have general subject matter jurisdiction. Can usually hear any type of claim. i. One minor exception-some cases arising under federal law that have exclusive federal jurisdiction. c. Federal Courts: Federal courts only have PJ of the state in which it embraces does. Have limited SMJ. Is not automatic, there has to be a statue that vests that jurisdiction in the Federal Courts. When you go to federal court, the presumption is there is no jurisdiction. The plaintiff must prove that there is standing for federal jurisdiction.
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Must use the word citizen, not residence to determine if federal jurisdiction is applicable. Most of grants of federal jurisdiction are not exclusive, can be heard at state or federal court. Parties cannot confer jurisdiction on a Federal court by their consent, the power must be given to the federal court by Congress. Their lack of subject matter jurisdiction can never be waived. Rule: 12(h)(3) Plaintiff must plead that federal jurisdiction exists. Rule 8(a)(1)
B. Test-Determining if Federal Court has SMJ: Cases with Federal SMJ: 1. Diversity of Citizenship-To protect an out-of state party from local bias 2. Alienage 3. Federal Question Jurisdiction i. Diversity of Citizenship-Overview
Rule: Federal Dist. Crts has original (trial crt) jurisdiction over all civil actions, where the controversy exceeds $75K. 1332(a) And is between: (1) Citizens of different states 1332(a)(1) (2) Citizens of a state and citizens or subjects of a foreign state "States" as used in this section includes Territories, D.C., and the Commonwealth of Puerto Rico. Treated as states for diversity purposes. §1332(d) Domestic Relations: Federal court will not take jurisdiction over actions involving the issuance of a divorce, alimony, or child-custody. It will however hear cases seeking to enforce them. Anti-Collusion Rule: USC 1359 This rule is aimed mostly at efforts to create diversity by assignment. o District Court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined for the purpose of invoke federal jurisdiction. o Cannot collude alone (changing domicile and therefore citizenship to create diversity) collusion takes two. Pertinent in situations where a person changes jurisdictions solely to get diversity jurisdiction. i. Cannot be applied to a person changing his domicile b/c one person cannot collude. ii. Determining Diversity: Complete Diversity Rule: No party on one side may be a citizen of the same state as any party on the other side. – all Ps must be of diverse citizenship of all Ds. Strawbridge.
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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. Diversity must be present at the time the complaint is filed, (it is irrelevant if subsequent change of diversity happens).
Determining Citizenship for Individuals:
Mas v. Perry husband and wife sue guy spying on them; husband is French Citizen Wife not a citizen of state w/Defendant.
To be a citizen of a State, the person must be: 1. a citizen of the US AND 2. a domiciliary of the State A person has only One Domicile: 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. To change domicile an individual must : 1. Take up resident in another State and 2. With the subjective intent to make that State her domicile How do you determine Subjective Intent? o Courts will look at voter registration o qualifying to pay in-state tutiion o automobile registration o location of bank accounts o payment of property taxes
Permanent Residents (Foreigners with green cards): o Shall be deemed a citizens of the State in which they are domiciled. USC 1332 (4) Legal Representatives o Of an estate of a descendant are deemed to be a citizen of the same State as the decedent. 1332(c)(2) o Infant or incompetent are deemed a citizen of the same State as the infant or incompetent 1332(c)(2) Note that State (has a capital "S" and under 1332(d) could be said to include Territories, DC, and Puerto Rico.
Determining Citizenship of a Corporation: USC §1332 (c)(1) A corporation is deemed a citizen of any state in which it: 1. Has been incorporated; and 2. The state where it has its principal place of business. (PPB)-only one PPB Corporations can be at most a citizen of two states.
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1. Determining Place of Incorporation: Corporations can be a incorporated in more than one state-however almost never happens, won't happen on the exam. For our purposes it can only have one. 2. Determining Principal Place of Business (PPB): Corporation can only have one state for its principal place of business. o Look at Total Activity: Always argue both test, and note the implications of
invoking each
Go with the Nerve center when a corporations activities take place in several states. Use Muscle Center if the activity is localized in a single state (even if the decisions are made in another). Nerve Center- Decision Making Activity. 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. When you have a corporation that performs its operational activities in many states, and the executive offices in another state, the courts hold that the PPB is the state where the Executive office is. Muscle Center-Where the Co. does moare of whatever it does. Where the vast majority of the corporations actual business is done. When a corporation has its executive offices in one state and its physical operation wholly or predominantly in another state, the PPB is the state where physical operations are conducted. Courts look at both Nerve Center and Muscle Center when assessing a corporations PPB, but one will be more important than the other.
Olsen: Because Olsen is not a far flung business the court emphasized the muscle center. Goes w/the muscle principal because MS, is where the corp. is most visible -> (freer likes this term). Olsen pretty passive in Chicago.
Determining PPB is a very fact intensive exercise. Look at the circumstance of the corporation to see which test to apply.
Citizenship for Non-incorporated companies: You do not look at PPB.(NonCorp.Partnernships, LLC) i. Are citizens of every state as it's members. For Diversity purposes-non corporations, have been seen as an aggregate of the people who run it. Because of this, national unions can not be sued in federal court under diversity of citizenship jurisdiction Congress has only defined the citizenships of corporations, not nonincorporated business. Left to the courts to define the citizenship of nonincorporated business associations.
ii.
iii.
Alienage Jurisdiction: USC §1332(2)
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Def: Defined as Citizens of a state v. citizens of a foreign state. Provides for Federal jurisdiction for all matters in which the sum exceeds $75K. o Alien v. Alien cannot go to Federal court, violates the constitution unless the cases involves an issue of federal question. Parties must go to state court. Dual Citizenship-court will not allow persons with dual citizenship to invoke Alienage jurisdiction . 1332(4)-May be unconstitutional. -See Article III. Hypo: Potential Suit of Alien of CA v. Alien of NY, Federal Jurisdiction appears ok because of statue 1332(4), however this is a violation of the constitution. o Hawaii uses this statue to defeat diversity jurisdiction and states that it cannot be invoked to create jurisdiction. (not submitting the case to Federal Court, so therefore it doesn't in practice violate the constitution. iv. American Citizens Domiciled in a Foreign Counter-Cannot be sued in federal court under diversity or Alienage. Amount in Controversy
Amount in Controversy Requirement/Costs: USC 1332(b)
Applies to both Alienage and Diversity suits.
Damages need to exceed $75K(not including interests and costs). If the plaintiff's judgment is less than or equal to $75K, the judge may make the P pay costs. Only way to get the case dismissed at the outset, and if there is a legal certainty the damages are equal to or less than $75K. Court must be sure that it can be proved to a legal certainty. Sometimes there are legal caps on damages, which could bar a claim from a federal court very unusual Court can sometime state that a damage amount is grossly inadequate.
Aggregation: Where we must add two or more claims to get over $75K. When a P has like 3 claims for $30K, and it gets over by adding the sum. Rule: One plaintiff v. one defendant, you can aggregate. No limit to the number of claims you can join. Could even have 76 unrelated claims. As long as there is one plaintiff and one defendant. Rule is not in the statue When there are Multiple parties on either side, aggregation is not allowed. Joint Claim: Look at the total value of the claim, are not concerned with multiple defendants. Only one claim, that happens to be against three people, but the p could sue only one of them for the claim amount.
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o o o
Whenever an amount of controversy fact pattern, ask if it is an aggregation hypo Usually comes up in property cases, 5 plaintiffs sue one defendant, it is just one claim. How do you know if it is a joint claim? the word joint will be there
Equitable Relief-Not suing for damages, because damages don't make the plaintiff whole. Behavior modification like an injunction. Two tests. 1. Plaintiff's View: Ask how much it harms the Plaintiff. Is the P harmed by more than $75K 2. Defendant's View: How much it would cost the defendant to comply with the injunction i. Often the D's viewpoint will give you a higher dollar amount Most courts will try both and if either one gets to over $75K, the claim is ok. Property encroachment is where there is a big different in the views between P and defendant. The American Rule- the winner recovers her costs but not the attorney's fees. Court may deny the recovery of costs to P's that receive less than $75K (not including interests and costs) 1332(b) Court may deny P costs to be paid by the D if they win less than $75K. v. Federal Question Jurisdiction:§ 1331
Def: The federal district court shall have original (trial level) jurisdiction of all civil actions arising under federal law (by statue, constitution or treaty). 28 USC § 1331. (Also in Article III of Constitution) o Article III is not self-effectuating, Congress must pass a statue to put this into the federal court system.-thus 1331. o § 1338-Creates jurisdiction over Patent and Trademark cases A lot of patents may actually be decided under state law. The issue needs to concern patent right infringement not just a breach of K. (if just breach of K only the defense would invoke federal jurisdiction.) . Elements of Statue 1331: i. Does not impose an amount in controversy requirement ii. Citizenship is not an issue iii. Not exclusive to the federal courts; Cases brought under federal question can be filled either in state or federal court Appellate Jurisdiction: o USC 1257: Gives Federal Court appellate jurisdiction over final state court judgments in which a federal statue or constitutional provision is drawn in question.
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Well-pleaded Complaint Rule: The assessment of whether federal law is sufficiently central to the claim asserted in a well-pleaded complaint. [A judicial interpretation of Sect. 1331 and is not a constitutional limitation of power]-Motley A well pleaded complaint by P, sets forth only a claim, it does not include anticipated defenses or other extraneous materials. If the court determines that the complaint contains matter beyond the claim itself, it ignores the surplus language and looks at the pertinent information. In assessing a claim, ask: Is this plaintiff enforcing a federal right. Affirmative Defense-Rule 8(c): A defendant's asserting new facts and arguments that if true will defeat the plaintiff's claim, even if all allegations in the complaint are true.
vi.
Supplemental Jurisdiction: Jurisdiction over a claim that is part of the same case as another claim over which the court has original jurisdiction. Pendent: A court's jurisdiction to hear and determine a claim over which it would not otherwise have jurisdiction, based on the claim's arising from the same case of another case in which the court has appropriate jurisdiction.
Removal
Thursday, November 11, 2004 8:45 PM I. Removal A. Def: Moving an action from State to Federal Court. Not an appeal. o If federal court decides that the case does not belong in federal court, the court will remand the case back to state court. o Defendant does not ask permission- so it does not make a motion for removal, it just removes. General Overview: i. ii. Rule of Unanimity: All Ds must agree to removal. If a case was removed to a federal district court, then that district court must be a proper venue for the case. Can only remove to the district that embraces the state court-(use this word) A plaintiff can never remove a case. In removed cases the defendant has the burden of establishing SMJ. If the original D does not remove, then any subsequent D may not remove. Noble
iii. iv. v.
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vi. vii. viii.
Collusive Joinder 1359 -aimed at efforts to create jurisdiction, not for those actions attempting to destroy jurisdiction. Diversity Cases: Cannot be removed more than one year after the case was filed in state court. Even if it just became removable by the dismissal of a D who defeated diversity. Removal does not affect a D's ability to raise any affirmative defenses. It just changes the court. ie. A defendant can remove a case and then make a motion to dismiss for lack of PJ.
Reasons why a D could not remove: In-state defendant rule: A case may not be removed by a defendant if it is filed in the state which the defendant is a citizen 1441(b) For Diversity Cases This rule is not Not applicable to Federal Question removal --------B. Actions Removable Generally - § 1441 Case can only be removed if federal court has subject matter jurisdiction 1441(a) Cases will be removed to a district court for the district and division embracing the place where such action is pending. 1441(a) The only federal district court to which a case can be removed is one that embraces--includes geographically--the state court in which the case is pending. i.e. a case filed in state court in Buffalo can only be removed to the US District Court for the Western District of NY, since that district embraces Buffalo. Removal and Federal Q SMJ: If SMJ is based on federal question, then the case shall be removed without regard to the citizenship or residence of the parties. § 1441(b) Removal and Diversity SMJ: 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. Federal Question Exception: Whenever a separate fed question claim is joined with a claim that was not removable: The entire 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).
C. Procedure for Removal - § 1446 Notice of removal is a:
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Short plain statement of grounds for removal Copy of service of process on D.
Timing: The notice for removal shall be filed within 30 days after receipt by the defendant of service or otherwise, 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)-Federal Question Case 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(b) If a case is removed and it turns out there is no subject matter jurisdiction, then it is remanded to State trial court. If the district court does not summary remand the case, then it will hold an evidentiary hearing. § 1446(c)(5). D's Required Action after Removal: He shall give written notice to all adverse parties ;and 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. § 1446(d) Removal and Amended Complaints: 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. Removal & Dismissal of D: If P dismisses a D that subsequently enables diversity of citizenship between the parties then the case can be removed. If the Court dismisses the D that allows diversity of citizenship, then there is no removal because that dismissal can be appealed.
D. Procedure After removal generally – § 1447 Remanding for Lack of SMJ: There is no time limit for moving to remand on the basis there is no Subject Matter Jurisdiction. § 1447(c) Remanding for other Defects: If the notice for removal is complete or if fewer than all defendant's joined the removal 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. 1447(c)
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If the P fails to do so timely, the procedural defect is waived and the case will not be remanded.
Adding Parties after Removal that destroy SMJ: 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) If it appears that the additional D was joined for the sole purpose of destroying SMJ in a removed case the court will deny joinder and continue in federal court If it appears that the D was joined in good faith, the court will permit joinder and remand to state court. Appealing Remanded Cases: 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)
Venue
Thursday, November 11, 2004 8:45 PM II. Venue
Def: Determines where within the federal district a case can be brought. It is largely defined by statue-no constitutional component. USC 1391 o These rules apply to those cases that originate in Federal Court. Does not apply to removed cases. Removed cases can only be transferred to a federal district court that embraces the state court where the claim originated. USC-1391 Provides federal venue rule generally, except where otherwise provided by law. Citizen is never keyed to districts only keyed to States. Districts do not cross state lines Overview: Residence Individual: Interpreted for Venue Purposes to mean Domicile Residence Corporation: A Corporation is said to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. 1391(c). When Removing Cases: Venue is proper in district that embraces the State court in which the action originated, can't remove to any federal court in the system. When you remove a case you don't need to worry about applying the rules of 1391.
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But if you decide to transfer the case, after removal you still need apply 1391.
Transitory Actions: All Non-Local Actions Local Actions: Actions about Real Property § 1391 does not apply. The case will be heard in the district where the land is located. If the property spans different districts, claim can be filed in either district.
Application: Where is Venue Proper? A. Diversity Cases– § 1391(a) "venue choices" either/or a. a judicial district where any defendant resides, if all defendants reside (domicile) in the same State b. 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. c. 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 Cases– § 1391 (b) i. a judicial district where any defendant resides, if all defendants reside in the same State i. 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 If there is no district which the action may otherwise be brought, in a district where any D is subject to personal jurisdiction. (actual language says in any district where the defendant be found) Only relevant if there is no district that meets one of the first two choices. Fall Back Provisions. Never mention unless there is no district in america that satisfy a&B one and two.
ii.
C. A Corporation is said to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. 1391(c). i. ii. If a 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).
D. An Alien may be sued in any district. § 1391(d) USC 1392:
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i. ii. II. Def:
Any civil action, of a local nature (real property) involving property located in different districts in the same State, may be brought in any such districts. Applies to permanent resident aliens too.
Change of Venue Transfer-State Court: The transferring of a case from one county to another. Transfers are made within a given state. Courts are not allowed to transfer cases to other sovereign states. Transfer -Federal Court-Federal district is not restricted by State lines. Federal courts my transfer civil actions from one federal dist. crt to another, even if the latter court sits in another state. Can transfer from F.Crt in CA to a F.Crt in GA, because they are in the same system. Transferor-The court where the case was originally filed Transferee-The court to which the case is transferred. Action goes from he Transferor court to the Transferee court. The court doesn't have to grant a transfer request. The transferor court is divested of litigation of the case and the transferee court is invested.
Application-Venue Transfer Options A. 1404 Transfer: Transferor court is a proper venue. Always done in terms of convenience of the parties & interest of justice and may be transferred where it might have been brought. B. Transferor Court w/o PJ: Transferor court can transfer case, even though it does not have personal jurisdiction over the defendant. Godlawr transfer allows courts to transfer a case even though the court does not have personal jurisdiction over the defendant; applies also to §1404 transfers. C. Transferee Court needs PJ: The court can only transfer to a court where venue and personal jurisdiction is proper. Hoffman This applies to §1406 transfers In 1404 transfers, personal jurisdiction is proper because it meets 1391 or the case was removed there. "Where it might have been brought/or could have been brought". Means: Means the court being transferred to (transferee court) must be a place where PJ and venue are proper. A forum selection clause in a contract is a factor considered Otherwise it is too much power for the D. D. 1406 Transfer: Transferor court in an improper venue.
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Venue is improper so judge can transfer in the interest of justice or dismiss. i. The district court with a filed case with incorrect venue shall dismiss, or if it be in the interest of justice, transfer the case to any district or division in which it could have been brought. Usually the court will transfer if possible. III. Choice of Law Doctrine: Rules to decide which state law to apply to the case. 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. Even if the plaintiff requests the 1404(a) transfer, the choice of law is still that of the transferor court. Ferens. In a Goldlawr 1404 transfer, the choice of law is that of the transferee. In 1406(a) transfer, the choice of law is that of the transferee court because the transferor court did not have proper venue.
IV.
Forum Non-Conveniens FNC is a doctrine of dismissal, not of transfer. Need a stronger showing than a transfer. Comes up when we cannot transfer because the best forum is in another jurisdiction. State court or overseas court. FNC results in dismissal because the better court is one which the case can not be transferred. ie a state court or a foreign court. 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 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. Ability to 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
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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
Pleadings
Wednesday, November 17, 2004 8:17 PM I. Pleadings 7(a)
A. Federal Rules Pleading Types of pleadings i.
Complaint Complainant has sued the defendant. Counter-claim- When the defendant asserts a claim against the complainant Answer Where the D to responds to P’s complaint. Reply For P to respond to the answer by D-very rare only if court order Usually a response to a counter-claim
ii. iii.
A Pleading Must Have ALL 3: Purpose is to simply give the Defendant Notice 1. A short and plain statement of the grounds upon which court’s jurisdiction depends i. SMJ only not personal jurisdiction. need to prove why this case belongs in federal court. Rule 8(a)(1). 2. A short and plain statement of the claim showing the pleader is entitled to relief Rule 8(a)(2) Things to worry about: 1. Legal Sufficiency of the Claim Does the law recognize this claim D can file a motion 12b(6) to contest 2. Factual Sufficiency of the Claim A matter of detail D can file a motion 12b(6) to contest 3. A demand for judgment stating the relief Rule 8(a)(3) The demand is often called the prayer for relief, ad damnum clause when relief is for dollars don't need to place a dollar figures, could state to be determined at trial Form of Pleadings:
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o
Caption of the pleading Rule 10-all pleadings must meet this rule
Notes/Def: Motion:A motion is not a pleading it is a request for a court order. Pleading is a hurdle to the litigation stream. (Complaint, Answer, Reply) Common Law Pleading is called the Writ System. P had to select the appropriate Writ. No state does this
B. Assessing Sufficiency of the Complaint: The complaint Must Be: i. 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: The purpose of pleadings is to put the other side on notice. In reading this the D knows what the complaint is about, so the pleading is sufficient. All you have to do is tell the D enough so that they know what they are being sued for. ii. 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. Defendant's Options to Attack a Complaint a. Motion for More definite Statement Rule 12(e) This is done instead of a response by a D. o D must make this motion before he files his answer. It should point out the defects complained of and details desired P must respond in 10days or within a time set by the court. o If not, court may strike the pleading or conduct another order as it deems just b. Motion for judgment on the pleadings.12(c) – Same standard as a 12(b)(6), but is raised after the motions are closed.
iii.
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c. Motion to Strike-Rule 12(f) Can only be made by a party before responding to a pleading Court may strike: o Any pleading with insufficient defense o Any redundant information o Immaterial or impertinent information o Scandalous Matter In the following Manner: o Upon Motion made by a party b4 responding to a pleading; o if no response is permitted, within 20days after service of the pleading; o Upon the court's own imitative iv. Exceptions to Liberal Pleading Heightened Specificity Requirement 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. A claim with special damages, shall be specifically stated. Those that don't naturally flow from the case. C. Attorney Cannot File Frivolous Pleadings-Rule 11 The lawyer's signature is required on every pleading, written motion, or other paper. a. 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 non-frivolous 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 b. A continuing certification. Applicable every time the documents presented to the court. c. IF Rule 11 is violated sanctions are handed down o Motions for violation for Rule 11 are served and not filed. You do not file it with the court, you serve it to the other side.
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Person has 21 days to withdraw, if she withdraws it-then no prob. If not, then you can file a motion and seek sanctions
The court may (discretionary) impose sanctions for a Rule 11 violation Sanctions are ordered to deter (not punishment) repetition of such conduct 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: (Discretionary) OSC Rule Nisi: Order to Show Cause Monetary sanctions may not be awarded against a represented party for violation of Rule 11, b/c it would be the lawyers fault Monetary sanctions cannot be awarded by the ct unless it orders the OSC prior to voluntary dismissal or settlement D. Voluntary Dismissal of a Claim by the Plaintiff a. When can the plaintiff Vol. Dismiss? i. A plaintiff may dismiss unilaterally without prejudice by a filing a notice of dismissal before the defendant answers or makes motion for summary judgment. 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. If the defendant has already pleaded a response, then the plaintiff must dismiss with the permission of the court. If plaintiff dismisses twice and the second dismissal is a notice of dismissal, then the case is dismissed with prejudice.
ii.
iii.
E. Involuntary Dismissal 41(b) A district court may order involuntary dismissal. For: 1. failure to prosecute 2. failure to comply with the FRCP 3. failure to comply with a court order These three ways should be seen as augmenting the other ways of getting involuntary dismissal. Court has an inherent authority to dismiss cases involuntarily, but these days, the court has to issue an order to show cause (or Rule Nisi) i. Rule 11(c) is the part of the Rules that requires that the P be given an opportunity to answer an order to show cause. ii. Tells us that all 41(b) dismissals are all dismissals on the merits (with prejudice) unless the dismissal is for lack of jurisdiction, improper venue, or for failure to join under Rule 19
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Normally an involuntary dismissal is with prejudice. However some are not: Dismissal's without prejudice: i. Dismissal for lack of jurisdiction (of both parties, subject matter, or insufficient service) ii. Improper venue iii. Failure to join an indispensable party
Amended Pleadings
Monday, November 29, 2004 3:39 PM
I.
Amendments
Amendment Pleadings are different than Supplemental Pleadings: Supplemental Pleading-Sets forth facts on events that have occurred after the case have filed. 15(d) Amended Pleadings: Where a party wants to add or fix the pleading about the events that occurred before we filed the case.
Basic Rules in Amendment: 3 Basic Rules15(a) Plaintiff has the right to amend once anytime before the defendant serves his answer. What if the D brings a motion instead of answer? Yes- a motion is not an answer. D has a right to amend his answer once within 20days of serving her answer. If a party misses the deadline the can: Get the consent of the other party OR obtain the leave of the court. Leave shall be freely given when justice requires-means that it is mandatory. To grant or deny is up to the discretion of the court. Reasons might reject an amendment: undue delay bad faith undue prejudice to the other side Party never has fewer than 10 days to respond. Variance 15(b) Only becomes relevant when it come up at trial. When evidence is introduced at trial that was not pleaded. When a variance occurs: The other side does not object:
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Court shall treat these as amendments to the original pleading as though the other party has agreed Party should amend pleading after trial (good housekeeping)-but not required. The other side objects: First response is that the evidence is inadmissible The court may allow the pleading to be amended if: The objecting party fails to satisfy the court that the evidence is prejudice/harm. OR Fails to show that the claim subserves the merits of the case else the court will not let the evidence come in.
15(c)-Statue of Limitations 1. Where a party amends to add a new claim-issue is if it is barred by time. Use the Doctrine of Relation Back: Means we treat the amended pleading as though it was filed when the original was filed. Gets you around the statue of limitations. A claim Relates back if relates to the same conduct, transaction or occurrence as the original complaint. Makes sense because the defendant is already on notice by the complaint. 15(c)(2) 2. Or Amend to add a new defendant. Where we've sued the wrong person. or sued the right person but want to add another right person. But it is after the statue ran. How you get relation back when you are joining a new defendant. 15(c)(3) You have to make additional showing as showed in the rule: 1. Need: he same conduct, transaction or occurrence as the original complaint 2. The person being brought in, knew about the case within 120 days after filing. 3. Have to show that the new person knew that but/for a mistake she would have been named originally.
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Monday, November 29, 2004 4:23 PM Test Taking Tips: Read each fact, and ask why is it there? Could it change or extend my analysis some way? i. PJ & QIR-2: Do not overlook the possibility of QIR-2 jurisdiction in a case in which in personam jurisdiction is impossible because courts have interpreted the long-arm statue narrowly. If the long arm does not apply, and thus in personam jurisdiction is not possible, but the defendant nonetheless has sufficient contacts with the forum to satisfy International Show, and has property in the forum that can be attached at the outset, the P should try for QIR-2 jurisdiction. ii. Federal Courts and PJ: Federal courts must sate law to determine whether there is statutory basis for exercising PJ. Thus a federal court can exercised PJ over a D only if a state court in which the federal court sits, could do so. What about a Federal Court that embraces more than one state? iii. In Statuary Analysis: Look for a difference between a requirement that the D transact substantial business in the forum versus transacting any business in the forum. iv. PJ and Traditional Forms v. Min. Contacts: It could be argued that based upon Shaffer, that the court must undertake an International Shoe assessment as to PJ est. on traditional bases too. (domicile, consent, presence) v. Removed Cases and PJ: Removal Juris. v. Filing a Federal Suit:Removal Juris. is narrower than SMJ based on diversity. There are some cases that cannot be removed to federal court, even though they could have been filed there originally.
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Defendant's Option For Response
Monday, December 13, 2004 9:48 PM I. Defendant's Response to a Lawsuit: A. When & How the D responds i. Defendant has 20 days to respond from when the D was served process. Count Sundays and holidays. Rule 12 (if served on 11/9 11/10th would be day one) If 20th day lands on a Sat, Sun, or legal holiday then you go to the next business days. Defendant has option to respond via: Motion or Answer. Or both. The P will respond to a D's motion. The D's Answer -can be made after or at the same time as a motion: iii. does the D put in his answer: The D has to respond to the allegations: Admit Deny-Not introducing new facts, just stating" no I deny" Don't Know-Have to be careful about "lack sufficient info to admit or deny" Don't use this, if the information is in your control. If the source of an answer is within your control then you can't do that. If it is the D has a burden to look for it. Note: a. Allegations that are not denied are deemed admitted b. Issues that are not properly denied are joined-which means the issue must be adjudicated c. d. There will be some paragraphs where you will admit some stuff and deny some stuff, must be careful to separate. e. Don't do argue in your denial " The P could never prove that". f. iv. Pregnant Denial: Don't deny literally, just deny. What i. ii. iii. ii.
Direct Attack: In State court the D can make A special appearance to challenge personal jurisdiction. Used in State Court only. (be careful not to raise any other claims). Protects the defendant. i. In Federal Court: There is no such thing as a special appearance in federal court because Rule 12 allows you to combine defenses in motions or pleadings. ii. If D loses, he must be prepared to stay and litigate Collateral Attack:
v.
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Collateral – D takes a default judgment and then argues for no PJ in home state. Collateral attack can never be made based on lack of SMJ.
B. Waivable Defenses: The four 12B Defenses for dismissal are waived if the defenses are not included in the D's first Rule 12 Response or if they are not made AT ALL. If you raise any of the 12b defenses, you have made your first rule 12 response. Waivable Defenses: 1. Lack of Personal Jurisdiction 12(b)(2) 2. Improper venue 12 (b)(3) 3. Insufficient of Process 12(b)(4) The forms (summons and copy of the complaint) prob. w/the papers 4. Insufficient Service of process 12(b)(5) The delivery of the forms problem with the way it was served These defenses are waived because of Rule 12(h) (b) and 12(g) which states that these four defenses are waived if they are not consolidated with other motions. Or if it is not made at all.
C. Other-12B Defenses i. Failure to state a claim upon which relief can be granted 12(b)(6) Does the law provide a remedy on the facts asserted. only if the court can't imagine a set of facts to support the claim. Failure to join an indispensable party 12(b)(7) These two defenses can be raised at anytime. Don't have to be put in your first response 12(h)(2) Can be lost- but only by failure to raise at the trial court. Cannot raise it on appeal iii. Lack of SMJ-12 (b)(1) – D makes this motion to challenge subject matter jurisdiction – it cannot be waived; it can be raised at anytime. Usually, a D will challenge SMJ by moving to dismiss under Rule 12(b)(1) The defendant can raise the issue of subject matter jurisdiction for the first time on appeal. 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. Cannot raise SMJ in a collateral attack However: Rstmt 2nd Judgments state: Permits a defendant to collaterally attack a default judgment based upon lack of SMJ . But not on a non-default judgment. EXCEPT: Where granting the relief would impair another persons substantial interest in reliance on the judgment.
ii.
D. Additional Motions for Defendant to Bring
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i.
Motion for More Definite Statement – 12(e): 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. If the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service by the P of the more definite statement. 12(4)(b) Motion to Strike – 12(f): i. The court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. i. Upon motion made by a party before responding to a pleading; or ii. Upon motion made by a party within 20 days after the service of the pleading iii. Upon the court’s own initiative at any time,
i.
E. Denial of D's Dismissal Motion: If a motion for dismissal is denied, the D has to submit an answer. o If the court denies a motion, then the defendant’s answer shall be served (is served informally via mail-utilizing the mail box rule) within 10 days after notice of the courts action. 12(4)(A) o Often times a D will make a motion and a pleading at the same time due to this quick turnaround time. C. Affirmative Defenses in Answer 8(c): If a D fails to raise an affirmative defense in either the answer or a motion, he loses the ability to use the defense. i. An affirmative defenses injects new matter, new information. The D asserts that based on these new facts, he wins as a matter of law. Can be Statue of Limitation, SOF etc. argument. D can perform inconsistent pleading by asserting an affirmative defense and an another type of answer. ii. Where the burden of pleading does not match with the burden of proof: Repayment of a debt and defamation. Both parties have to plead, and the defendant has the burden of proof. 1. ie a repayment of a debt, the D has to both deny and raise the affirmative defense of repayment, or he loses. Both parties have to plead, and the D has the burden of proving it. 2. Defamation, the D must step up and show that the allegations are true. P does not have to respond to an affirmative defense, only if there is a court order. under 7(a)
iii.
D. Defendant Doesn't Respond
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i.
Default: P needs to first get the default then get the default judgment. The prerequisite is that the default comes first. Always get the default from the clerk of the court. Need to prove to the court that the plaintiff was served more than 20 days ago via the affidavit. Can be the process server or the plaintiff. Once Default is on the docket sheet, then the defendant cannot respond. The D can make a motion to set aside the default, and it is in the discretion of the court. Default doesn't happen automatically, the P has to ask for it. In some state the default is automatic. If P doesn't enter a Default request and the D wants to respond: A motion for enlargement If 20 days have passed and no default on the record and the D wants to respond. Some courts allow the D to respond if it has been more than 20days, if the P has not filed for default yet 55a-says the clerk shall and there is no discretion.
ii.
Default Judgment: 55(b)(1) Allows an entry of a judgment w/o ever seeing a judge. a. For Specified Damages-Requirements: Need a sum certain-or that can be calculated easily Affidavit of the amount due It must be shown that the D has never appeared in any way. What constitutes appearance: Can D appear and still be in default: A D could default by failing to answer timely after a motion to dismiss. (one scenario) If so, then 55(b)(1) does not apply. D is not an infant (minor) or incompetent General rule is that winner recovers costs from the loser (not attorney's fee) In a default circumstance, the he P recovers cost from the loser. Except 1332(b) if P wins less than 75K in a diversity case, will not get costs, and might have to pay D's cost. If any of the four things are not true, then you can't get a default judgment. A P cannot recover in a default more than was pleaded. 54(c)
b. Judgment For Unspecified Damages: Need to go to the judge. 55(b)(2) Or to establish the truth of any claim. (mostly arise out of damages). If the party has appeared in the action, then you get three days written notice to the D regarding the default judgment hearing.
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If the D has not made an appearance she doesn't get notice of the hearing If the D does show she cannot put up evidence if liable can only put up evidence to mitigate damages.
When there is a default but no judgment, the D can For good cause, can make a 55(c) motion, the court may set aside an entry for default. Usually found under the umbrella of excusable neglect. IF a judgment has been entered you can move to set aside a judgment under rule 60(b) Mistake Surprise Excusable Neglect If the judgment is void The motion must be made w/in a reasonable time, but in no case up to a year.
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