1. Personal Jurisdiction
a. The state court or federal court in that state must have the power to render a judgment against a particular defendant; persons who engage in certain types of activities in a state are subject to jurisdiction from claims arising from these activities: 1. General jurisdiction – can hear any kind of claim between any persons, unless there is legal authority saying that can’t 2. Limited jurisdiction – limited to specified types of cases as set forth by statute. 3. Diversity jurisdiction – jurisdiction brought about by the fact that opposing parties come from different states, or between a citizen of a state and an alien, subject to a jurisdictional amount > a given sum. 4. Concurrent jurisdiction – that jurisdiction exercised by different courts at the same time over the same subject matter and within the same territory, and wherein litigants may, in the first instance, resort to either court indifferently ii. Categories of Personal Jurisdiction: 1. in personam jurisdiction – exits when the forum has power over the person of a particular D. 2. in rem – exists when the court has power to adjudicate the rights of all persons in the world with respect to a particular item of property. This jurisdiction is limited to situations where the property is located w/in the physical borders of the state and where it is necessary for the state to be able to bind all persons regarding the property’s ownership and use. 3. quasi in rem – the court has power to determine whether particular individuals own specific property w/in a court’s control. It does not permit the court to determine the rights of all persons in the world with respect to the property. It also permits the court to adjudicate disputes other than ownership based on the presence of the D property in the forum. i. The mere presence of property within a state in not sufficient to permit a court to excersie quasi in rem jurisdiction over property. It is only proper where minimum contacts exist iii. How Jurisdiction is obtained 1. In personam: In personam jurisdiction exists if the judgment binds the defendant personally. The judgment winner can have certain assets owned by the D seized and sold in order to satisfy the judgment 2. In Rem: a judgment in rem affects only the property and is limited to the value of the property. P cannot use judgment to seize other property owned by the D. a. A state can exercise in personam jurisdiction over any person found, and in rem over any property within its borders at the time suit was commenced. b. Constitutional Limits and the Development of Personal Jurisdiction i. Statutory limitation – states have the power to decide over whom their courts may exercise jurisdiction. If no state statute grants the court the power to hear cases involving the parties before the court, then the court lacks PJ. ii. Constitutional limitation – The Due Process Clause places two restrictions on the exercise of PJ
1. parties directly affected by the court action must receive fair and adequate notice of the action –a court in one state does not have to heed a judgment entered by another state if the first lacked jurisdiction 2. there must be minimum contacts between the D or property and the forum state so that the assumption of jurisdiction is fair and reasonable. A state statute may not exceed the CON boundaries, but is not required to reach the full limit of CON power. a. Pennoyer v. Neff Held: Service of process by publication is invalid against a nonresident for the purpose of obtaining PJ over an individual – must be served personally. For the court to have in rem jurisdiction, have to have property in the state prior to w hen the judgment was entered – property also has to be tagged. Court said the quasi in rem jurisdiction was invalid because the property was attached after judgment was entered. i. Pennoyer established a rule not a standard: if you are w/in a state’s territorial boundaries, and you (or property) can be tagged, you’re bound by courts PJ over you. b. Two territorial principles: i. Every state possess exclusive jurisdiction and sovereignty over persons within it territory ii. No state can excersise jurisdiction and authority over person and property without its territory. 3. Minimum Contacts a. Internationals Shoe v. Washington i. Held: In order to establish PJ the court must establish that Int. Shoe had minimum contacts with the state. In this case the Int. Shoe had company reps that lived there and sold and did business in the state. To find out if they had minimum contacts the courts asks if the relationship was systematic and continuous or sporadic and casual and also ask whether the suit has arisen from direct relation to the activities that the business conducts w/in the state. The court also said that in maintaining the suit, the state may not offend traditional notions of fair play and substantial justice (case-by-case). The court said that since a corporation who is doing business w/in a state enjoys the benefit of protection of laws of the state, the corp. must h ave certain obligations to the state which if not complied with, the state has a right to file suit. ii. Rule: A corporation that chooses to conduct activities within a state accepts a reciprocal duty do answer for its in-state activities in the local courts. The D who deliberately chooses to take advantage of the "benefits and protections of the law" ; of a state should be expected to be haled into court in that
state. Int. Shoe only dealt with in personam jurisdiction – if the person has sufficient contacts, ties, or relations with the state, then they don’t have to be physically in the state (like Pennoyer), they just have to have MINIMUM CONTACTS iii. Examples: 1. if activity is continuous and systematic and COA is related to activity, then minimum contact is established 2. if activity is continuous and systematic and COA is unrelated to activity, then minimum contacts is unclear 3. if activity is sporadic and casual and COA is related to activity, then seems that there is minimum contact 4. if activity is sporadic and COA is unrelated, no minimum contact b. Shaffer v. Heitner i. Held: Minimum contacts test also applied to in rem jurisdiction. The D owned stock in a certain jurisdiction. They were being sued for acts they committed as corporate officers, unrelated to the stock property. Court found that although stock was a contact it was not sufficient o have minimum contacts. Shaffer prevents the use of quasi in rem jurisdiction where the property is the only contact and it is not related to the COA. If the claim arise of the property, then property may alone be enough. c. Specific Jurisdiction: Claims arising out of one act i. Cause arising from Activity in the state – If D in-state activity is less than systematic or continuous, in personam jurisdiction over D will be proper for causes of action arising from that in-state activity ii. Purposeful availment – even if D activities are performed outside the state, the D will still be subject to in personam for consequences in the state where he knows or reasonably anticipates that his activities could give rise to cause of action in forum – that he could be "haled into court" iii. Reasonableness – it is not enough that minimum contacts exist. The exercise of jurisdiction must also be reasonable, taking into account the litigants interests and the states interests. d. World Wide Volkswagen v. Woodson i. Held: Car bought in N.Y. was in an auto accident in OK. P tried to sue dealer in Ok. The court ruled that Ok. could not exercise PJ over the D because of the minimum contacts test. Although the automobile was a connection between the D and the state it did not count as a contact. It only counts if the D purposefully directed at the forum state. There was not
purposeful availment of the privileges or protections of Oklahoma, thus no benefit was sought sufficient to require the dealer to submit to jurisdiction. ii. Fairness: 5 factors for fairness in minimum contacts test 1. the burden on the D Primary concern a. i.e. distance D has to travel 2. the interest in the forum in adjudicating the case 3. the P interest in obtaining convenient and effective relief 4. interest in an efficient resolution 5. shared interest in furthering fundamental substantive policies. i. Two Step Approach to minimum contacts 1. Court determines all contacts between the D and the forum. If there are none, they stop. If there are contacts, they determine whether the claim arose out of the contacts. 2. If the contacts are sufficient, the court looks the five fairness factors. DO NOT FORGET THE FAIRNESS FACTORS a. No contacts fairness does not matter iii. Contacts: a contact is considered only if it is the result of purposeful activity. Or, purposeful availment of the benefits and protections of forum law. e. Asahi Metal Industry v. Superior Court i. Held: the court refused to allow PJ even when there was contacts. Made part that was carried into different state. The burden was to great and the case did not matter that much. Merely putting a product into the stream of commerce, even with knowledge that it would eventually end up in a particular state, is an insufficient basis for an in personam jurisdiction over the manufacturer. f. Burger King Corp. v. Rudzewicz i. Held: When a question of PJ arises out of a business relationship, the underlying realities of the relationship should by examined to determine whether jurisdiction exists. The D must then demonstrate that defending the action will subject himself to an unreasonable burden that cannot be relieved by other means. In this case a person bought a franchise form BK. The court ruled that it was not enough just making a contract with a person of another forum but when there is also other negotiations or other contacts where the D purposely avails himself then there is sufficient contacts.
4. Stream of Commerce – this arises when a D distributes goods nationally or through a third party. This could be an issue for PJ if the D purposefully injected goods into the stream so to avail himself with a particular state. a. Internet Sites: i. Passive site: jurisdiction rarely exist in a passive site. The main exception is when the site contains material directly targeted at a different state. ii. Interactive Site: with interactive sites, the courts look at all the circumstances including the level of activity and whether the site is commercial in nature. 5. General Jurisdiction a. If state contacts are very substantial and D may be sued in the state for any claim even one completely unrelated to its in-state activities b. Systematic and Continuous activity in the state i. If D engages in systematic and continuous activity in the forum state, the court will find this activity a sufficient basis for exercising in personam jurisdiction for any cause of action against the D, whether the cause of action arose from the in-state activity or from activity outside the state. c. Types of contacts i. Domicile – the place where a person maintains her permanent home; the place chosen through presence coupled with intention to make that place her home. ii. State of Incorporation – a forum can find PJ if a company is incorporated in a state even if no other contacts exist. iii. Presence – anyone can be served while in a state. (man visiting kid in CA). SC approved in 1990. 1. if presence is not voluntary or done by fraud usually presence is not valid for service of process. iv. Consent – a person can waive a defense of PJ if they waiver form that defense or consent to forum. 1. if a person consent, minimum contacts are irrelevant 2. a person may express consent (the most common form is a contract that specifies forum) 3. Implied consent can come by filing a complaint or an answer. 4. Voluntary appearance – a D may consent to jurisdiction by voluntary appearance. Any sort of appearance provides a sufficient basis for jurisdiction, but most states allow "special appearance" through which a D can object to the court’s exercise of jurisdiction.
2. Notice and the Opportunity to be Heard
a. The Due Process Clause requires that the D receive adequate notice of the litigation. A judgment without notice is constitutionally deficient and therefore invalid. b. Both contacts and notice are required. Due process requires both
c. Definition of Notice: A P gives notice of a pending action when she serves the summons and a copy of the complaint to the D. d. Adequacy of Notice i. DP requires service of process to be reasonably calculated under all circumstances at to apprise interest parties of the pendency of the action and afford them an opportunity to present their objections. 1. Receipt of notice not necessary – as long as service is reasonable D is subject to jurisdiction even if he never actually receives the summons. 2. Acceptable means: has to be by an acceptable mean. It can be first class mail, personally served through an authority, etc. 3. Service by publication – this can happen if there are no other ways. If there are other ways to get a hold of the person, they need to be done. e. Out of State Defendants and Long Arm Statutes i. If a D is out of state a forum may retrieve him through a long arm statute. These are given by the state but have to abide by the due process clause. Some states have more limited long arm statutes where other are more open. f. Service in Federal Court i. Methods Fed. R. Civ. R. 4(e)-(j) 1. Defendants within the U.S. – For D in the U.S. service can be done by handing it to the person, leaving it in usual place of business with someone of suitable age and discretion who also resides there, serving an agent authorized by contractual agreement, or serving to any method authorized by either state in which the district court sits or the state where service takes place. 2. Corporation within the U.S. – for corporation and associations, service can be made by delivering process to a managing or general agent. 3. Special Defendants – certain rules pertain to infants, incompetents and D in foreign nations. 4. In rem actions – a federal court may excersie jurisdiction based on seizure of property only when a federal statute provides for such jurisdiction or when P cannot obtain in personam jurisdiction over the D by reasonable means in that district. ii. Territorial Limits 1. Fed. R. Civ. P. 4(k)(1)(A) – provides that a federal court could establish jurisdiction over a D only if the D could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located. g. Challenging Jurisdiction: i. Direct attack – if D wants to challenge jurisdiction, the first option is to file it in his pre-answer motion (12(b)(2)). The next option is to file a direct attack, where D appears in court and objects (special appearance – D is allowed before the court at beginning of action for the sole purpose of challenging courts power to exercise PJ) – the D must be careful not to bring up any other matters because to do so may indicate to the court a waiver of PJ. ii. Collateral attack – when a state court judgment is appealed to a federal court as opposed to the appellate court to invalidate the lower court judgment (Neff did this
challenging the default judgment) DANGER – once lose in a collateral attack there’s nothing you can do to challenge the judgment. iii. Comity – Full Faith and Credit Clause – every state should give full faith & credit to judgments entered by any other state so long as the state has the power to hear the case. (Pennoyer – this directly contradicted the 14th amendment which says that Neff needs due process and since he was not served properly, he did not have proper notice of suit – 14th wins over clause) 1. Appearances a. Special appearance – only in state court – D appears in court only to challenge PJ. If appear in court, PJ must be the first and only issue addressed because if bring up any other matter the court may interpret it as a waiver of right to PJ. Another approach to challenging jurisdiction is to simply not show up to court and allow a default judgment to be entered against you and once the court has done so, can collaterally attack – if lose, can’t bring up again. b. General appearance – when D appears and makes motions other than those challenging PJ c. Limited appearance – D appears to challenge the taking/attachment of property as part of an earlier proceeding – appears before the court and defends case on merits, liability being limited to the property garnished or attached by the court.
3. Subject Matter Jurisdiction
i. Definition: SMJ is the authority to adjudicate and decide a case. If the court lacks SMJ any party may move to have the action dismissed. A federal court must have jurisdiction over every claim. SMJ and PJ are separate and independent requirements. 1. Sources: Federal SMJ is limited to the Constitution, federal statutes, court created doctrines. a. Constitutional Limits: Unless a case falls in 1 of the 9 categories of federal jurisdiction it cannot hear it. b. Statutes: b. Challenging SMJ i. Any party may challenge at any time. (in contrast PJ and venue may only be challenged by the D) ii. A court can raise sua sponte. This is its own lack of SMJ. iii. There are also no time limits on SMJ. It can happen at anytime during a lawsuit. c. Federal Question i. Federal question jurisdictions allows the federal courts to hear cases involving federal and constitutional claims. 1. Statutes have give federal court s jurisdiction in several Subject matters a. General questions; bankruptcy; patent, copyright infringement, civil rights, etc. 2. Well pleaded complaint rule: the central action has to be a federal question. It cannot be a fringe issue. This asks whether the federal element in the complaint is necessary to the P case. d. Diversity Jurisdiction
i. There must be complete diversity between opposing parties. Also, the amount in controversy must exceed $75,000. All D’s must be form a different state than all P’s. 1. this is concurrent not exclusive. This means that diversity cases can be heard in federal or state courts. ii. The P bears the burden of showing diversity. If diversity is challenged the P must show diversity. iii. Exceptions: 1. The court will not hear diversity cases involving divorce, alimony, child custody, etc. they also will not hear cases that involve unclear issues of state law. iv. Citizenship 1. Courts look to the domicile of a party to determine if a party is a citizen of a state. The person must be a citizen and domiciled in the U.S. a. a foreign citizen who receives a grant of permanent residence is treated as an alien of the state where he is domiciled in. 2. Corporations a. A corporation is a citizen of the state in which it is incorporated in and the state where is has its principle place of business. b. Principle Place of Business i. Nerve center: many courts look to where corporate management are at. ii. Muscule center: a slight majority of the courts look to see where most of the work is done. v. Amount in Controversy 1. it has to be over 75K or worth over 75K in a court of equity. It does not matter how much they win. a. Attorney’s fees are included if that is part of the recovery. 2. The single claim has to be over 75K. It cannot be a combined amount. a. A single P may aggregate all her claims to reach 75K but there cannot be a host of P who aggregate their claims to reach 75K. e. Supplemental Jurisdiction i. Supplemental Jurisdiction is only possible when at least one claim independently qualifies for federal subject matter jurisdiction. 1. The federal claim may either be diversity or a federal question. 2. Two Step Process a. 1 must determined if the state and federal claims have a sufficient factual relationship to qualify b. 2 if they do, they exceptions need to be checked i. ex – 1367(b) if it is based solely on diversity it can be barred ii. ex – 1367(c) the court can use its discretion to bar. f. Removal Jurisdiction i. This is a removal from state court to federal court (note: this is different from transfer) ii. The case must be removed as a whole. It can only be removed by the D. All D must join in the removal.
1. Whether a state court case presents a federal question is determined at the time of removal, not when the case is filed. 2. When removing for diversity, there must be diversity at the time the case was filed and at the time of removal. iii. The notice of removal of an action shall be filed within 30 days after receipt by the D of a copy of initial pleading setting forth claims for relief or within 30 days after the service of summons upon D if served in court and not required to be serve d on D a. In other words, a P may not add a nondiverse party after the complaint in hopes to remove the case for diversity. iv. If there are multiple claims or counterclaims, unless all claims are federal questions or based on diversity, it is necessary to consider supplemental jurisdiction.
4. Venue
a. Venue is the place the legislature requires a particular action to be brought. Venue is not required by the constitution but by statutes. b. Federal Venue i. Venus is defined by district, not state (unlike PJ). 1. In many cases a P may have the option of going to several districts. In this case the P may choose which one but the district of choosing has to have PJ. ii. Venue in diversity cases in cases where SMJ is based solely on diversity, venue is proper in any of the following districts: 1. any district where the D resides, if all the D’s reside in the same state. 2. any district in which a substantial portion of the events of omissions giving rise to the claims occurred 3. if there is no other option, any district in which the D is subject to PJ at the time the action is commenced.
iii. Venue in federal question, combined and supplemental jurisdictions in cases where venue is not solely on diversity, venue is proper in any one of the following districts: 1. Same as 1 above 2. same as 2 above 3. if there is no other option, any district in which any D may be found
ii. Multiple D --. Venue may be proper where any D resides, as long as all D reside in the same state 1. Residence not domicile. Residence is where the person lives even if that is his temporary home. 2. This will not work if even 1 D lives in another state.
iii. Venue is proper where substantial portion of events occur only if those events were relevant and not irrelevant. iv. Corporate D are deemed to reside in any district where they can have PJ. This includes where they are domiciled. 1. if there is no single district that has sufficient contacts, but sufficient contacts with one state as a whole, the district with the most contacts is the district where the corporation resides. a. A corporation can always be sued in any state of corporation. c. Challenges to Venue i. Time limits like PJ, an objection to venue must occur prior to the answer and even earlier in some cases. ii. A party may waive a venue even without filing a motion. If a party takes actions in a case inconsistent with a venue defense he may loose the right to object to venue. d. Forum Non Conveniens. i. This is a court created doctrine that allows courts to dismiss an action even though venue might be proper. ii. This usually does not apply to federal courts, however if the case is filed in a district court the court can move the case to a different court or dismiss the case. iii. In order to dismiss the case based on this, there must be an alternate forum to hear the case. If such a forum is available the court will then consider private and public factors. To determined whether the chosen forum is grossly inconvenient. 1. Alternate Forum the Alternate forum must have SMJ and PJ. a. Federal courts bar dismisses of forum for different remedies, only if they effectively deny P any rights in the alternate forum. b. In other forums, just because P may not retain the same remedies or advantages does not mean that dismissal or transfer is barred. 2. Factors courts consider different factors in finding forum non Conveniens a. Private factors i. Look at underlying events occurred ii. Where the witnesses and evidence is at iii. Comparative overall costs iv. Language issues v. Enforceable judgments b. Public Factors i. Choice of law questions ii. Policy implications iii. The courts backlog iv. The burden on the court system e. Transfer of Venue in the Federal Court i. A case filed in one federal district can be transferred to another federal district. PJ and venue have to be proper. 1. State courts cannot use the federal law. Federal courts can only transfer to other federal courts, not a state court or other nation. 2. Either party may move 3. there is no time limit
5. Raising Jurisdictional and Related Challenges
a. If you want to argue that a court does not have PJ over you, it can be done it two ways i. A direct attack is where you go to the state and appeal within that state and if you loose you still can argue the merits ii. A collateral attack would be where you would stay where you are at. Let a default judgment be issued against and have them come to you state. When they get to your state then you argue lack of PJ. However if you loose you cannot argue the merits.
6. Pleadings and Judgments Based on Pleadings
a. FRCP 7: sets out certain requirements concerning motions i. The motion has to be in writing ii. It must state with particularity the ground in which the motion is based iii. It must state the relief sought iv. All motions must be signed b. The Complaint i. FRCP 9 governs complaints and counter claims, cross claims, and third party claims. ii. Contents of a complaint FRCP 8(a) 1. a short a plain statement of the basis for subject matter jurisdiction a. It can be based upon a federal question, diversity of citizenship or supplemental jurisdiction 2. “ “ of the P claims and a. the statement of the claim is sufficient if it gives the D adequate notice of P claims and of the basic situation from which those claims arose b. A fraud or mistake claims uses the Elevated Pleading Standard. This means that there has to be more detail involved. It is also used for when special damages are called for or other issues arise. i. In these cases just saying that there is a fraud or making an simple allegation is insufficient. 3. a demand for judgment setting out the relief P seeks. a. He must state a prayer for relief or in other words what the P wants. b. You are not bound to the demand in this clause. You can get or argue that you deserve more. However if a default judgment is given you can only get what is listed. i. If the damages are not the natural and foreseeable damages from the allegation they could be considered “special” and would require more specificity in the compliant. c. Response to the Complaint i. D responds to the complaint in two basic ways 1. The D can answer 2. Or D can make motions to challenge specific issues. ii. Pre-answer motions D can raise questions about issues in preanswer motions 1. FRCP 7 provides that a party seeking any form of relief will ask that by a motion
a. A party may wish to seek a venue transfer or have a different judge because they think the one they have is bias. These motions can occur before or after the answer. b. According to FRCP 12(b) a D can ask the court to dismiss the case and 12(e)-(f) asks the court to have the P correct parts of the complaint. 2. FRCP 12(b) allows a D to raise defenses by motion. a. These include lack of SMJ, lack of PJ, improper venue, insufficient service of process, b. Failure to state a claim, failure to join a party, etc. iii. A complaint can be defective in two ways 1. it could first left out crucial facts or allegations concerning one element 2. Or the laws do not match the facts a. Effect of 12(b)6 motion i. Usually a court will always leave to amend before dismissal. However in federal court it can be dismissed on the merits. A dismissal on the merits prevents P from bringing any claim against the same D based on the same facts. 1. This is purely a legal issue. b. Effect of 12(c) i. This happens after the pleadings are in. if you attach anything outside the pleadings such as documents, newspaper clippings, etc. 1. 12(c) allows any party to move for judgment on the pleadings. A motion for judgment may only be filed after all pleadings are complete but early enough so as to not delay the trial. In considering the motion, the court accepts all facts as if true in ruling on the motion. This is where a 12(b)6 motion could come in to play. This would alledge that the P did not state a claim based on the facts given. Or there could be a 12(h)(2) motion which would say that there was a failure to state a legal defense. In this situation a D may be sued for battery and negligence and just deny battery thereby admitting to the negligence. ii. Rule 56 looks to see if there is a legal basis for the claim. c. Effect of a 12(e) i. If a party is served with a pleading to which a responsive pleading is required but that pleading is so vague or ambiguous that the party cannot reasonably frame her response, the party may move to order a motion that asks the P to be more specific. 1. this rarely happens and they usually just ask to dismiss. d. Effect of a 12(f) motion
i. This is a motion to strike portions of the pleading that are redundant, immaterial, or scandalous. 3. Even if you make a mistake in your pleadings and the other side files a 12(b)6 motion, the court will usually leave to amend before they dismiss it outright. a. There is also a little more room for per se parties. 4. Rule 9 a. You must be specific about something things. This is the elevated pleading standard. 5. Voluntary Dismissal 41(a) a. This says that you have one free dismissal. If you do it before the other side files an answer or a motion for summary judgment it is okay, if you do not then you have to get permission form the other side and the court. If you do not get permission then dismissal will be with prejudice meaning that you cannot refile it. 6. Involuntary Dismissal 41(b) a. This is a sanction by the court for failure to act. It is a punishment with prejudice. The party likely was doing something wrong. iv. Answer 1. the D can file a 12(b) motion, they can ask for more detail. They can submit a motion to strike 12(f). 2. The D must file an answer. This must deal with all the P’s allegations it may include claims against the P or other D. i. The basic answer either denies or admits to the allegations. If there is a failure to deny it could constitute as an admission. (However a D is not required to make any admissions to damages). 1. Failure to deny only counts as an admission when a responsive pleading is required. 2. A D can also plead that they do not have enough knowledge to be able to admit or deny (3rd option). ii. General denial: this is when they try to deny everything in the entire case. iii. A D can also submit a defense. A defense is a reason put forth by the D as to why P is not entitled to the relief. 1. Ordinary defense: these are all the defense listed in 12(b). they are more procedural 2. Affirmative Defenses: these usually involve the introduction of new facts. 3. The D can also do nothing because they cannot afford, etc. The P then can seek default. Under Rule 55 there are two steps a. The first step is entry of the default. Request clerk to enter default judgment. b. The second step is entry of default judgment. The clerk can do this if it is for some amount
that can be easily computed by the clerk. If it is for unliquidated damages in those cases the clerk cannot enter. b. 60(b) – set aside default judgment. You are admitting that there is no good cause for missing the deadline. Cannot be more than 1 year. i. Rule 11 1. You have to do an inquiry reasonable under the circumstances. If the complaint arrives the day before the trial you will have less time. You may not have enough information. 2. You have a duty to act in good faith and be specific 3. The signature of the lawyer or the on the pleading is a certification. It is not under oath. However you are saying it is based on knowledge and belief in good faith. ii. The D has to be specific about affirmative defenses. An affirmative defense injects new matter into the lawsuit. If you fail to deny it is treated as an admission.
Checklist for Answer: Is the D answer sufficient? o Was in done in the right amount of time (20 days after receipt unless given an extension)? Has the D admitted explicitly or implicitly any of the allegations? o If they are explicit then the D cannot introduce new evidence to counter those admissions; if the Did the D deny any of the allegations? o Did they issue a general denial? f so it had to be done in good faith or it counts as an admissi o Did they say lack of information? Did they place a defense? o Was in an affirmative defense? this defense includes facts or other evidence o Was it an ordinary defense? this includes procedural issues such as lack fo PJ or SMJ. d. Amendments to the Pleadings i. Pleading try to be flexible. 15(a) allows a party to amend its pleading once without obtaining court permission. (liberal amendment) 1. If the pleading is a complaint, an answer with a counterclaim, a cross-claim or a third party complaint the party must amend before the responsive pleading is served. a. For all other pleadings the party must amend within 20 days after the pleading is served. i. A party can amend during trial with the courts permission. 2. You get one free amendment. After that you have to get permission. The court can freely amend as long as justice requires ii. 15(b) allows the pleadings to conform to the admission of evidence.
iii. 15(c) is relation back. This primarily a problem with SOL. Based on what you have learned from other things, you realize you need another claim or another party. You can only do this if there is some rule that will allow you do it to relate back. This allows you to relate back if it is the same transaction or occurrence. 1. What if you want to add a party and you are suing the wrong party. 15(c) allows the addition of the true party to relate back if the true party new about the lawsuit and but for a mistake they would have been sued originally. OS if you are suing someone, the SOL runs, you realize you are suing the wrong party. It is fair to allow it to relate back after the SOL if they knew about the lawsuit. It is not unfair if they new about the lawsuit. The burden is on the P to show that the D should have known. iv. 15(d) is supplemental pleading. These are to allege continuing conduct that has gone on since the original pleading. v. There is a 21 days safe harbor. If the D thinks that it violates rule 11. You have 21 days to withdraw you motion. If you do not then the judge can rule if there are sanctions needed. vi. Things to remember: 1. amendments can be made at anytime, not just before trial. However they have to be approved. They could be prejudice to the other party.
7. Joinder and Supplemental Jurisdiction
a. 18(a) tells P how to join claims. It allows b. Joinder of claims i. Fed. Rule 13 & 18 allows P and D who are already in a lawsuit to file additional claims against the other. 1. 18(a) allows to join all claims against one party in the same lawsuit. They however do not have to do this. It requires for each of those claims an independent basis for SMJ or in some cases supplemental jurisdictions a. So if you have a federal claim and you want to give a state law claim, the state claim needs to have SMJ or show that it has supplemental jurisdiction under 1367. it needs to come from the same transaction or occurrence. i. Do not forget 1367(c) says that it still has to use its discretion to hear the case. 2. Fed. Rule 18(a) a party asserting a claim to relief as original claim, counterclaim, cross claim or third party claims may join as many claims against that opposing party as long as the first claim applies. [R.18(a) does not apply to first claim] a. Does not use same transaction test. May join regardless if they have anything to do with each other. b. In federal court, there must be SMJ over all claims 3. Fed. Rule 13 (Counterclaims): same as above. Allows parties to bring as many claims as they want. Some claims they have to file or risk loosing them. a. 13(b): Permissive counterclaims are allowed even if it has nothing to do with P claim.
b. Compulsory counterclaims: if D has a claim that arises from same transaction or occurrence then they have to file it or risk loosing it. i. This is based on efficiency and consistency argument. ii. Tests: 1. Logical relationship test (majority rule): are the claims logically related. Ask if they come from the same underlying set of facts. 2. Same evidence test (minority): is their overlap between disputed elements of the claims. It is not enough that they come from same set of facts. They have to overlap. iii. Excepted Claims: A D does not need to file, even if from same occurrence, if: 1. D has not filed an answer [13(a) requires counterclaim to appear in answer] 2. claim has not yet risen 3. claim needs third party that would kill jurisdiction 4. the claim is already being litigated 5. P suite is based upon in rem or quasi-in-rem jurisdiction c. 13(a)-(b) permits counterclaims by plaintiffs and others. It can also be compulsory if from same events and not under the exceptions 4. Cross Claims [Fed. Rule 13(g)]: filing a claim against another co-party. a. Can file a cross claim is occurrence is from either original complaint or counterclaim. b. ALWAYS voluntary or permissive. i. Note: once cross claim is filed the issued party is now the D and has to file any counterclaims against filing party from same transaction or occurrence [13(a)].
Check list for joinder of claims: Is the joinder of a claim permitted? o Is the claim in question against a party who has asserted a claim against the claimant? If yes it is a counterclaim. Does this counterclaim arise from the same STOO (Is ther If yes it is compulsory; if not it is permissive. o If a claim can be asserted against an opposing party if there is already an established claim so o Is the claim against a co-party? If yes and it come out of the STOO then it may be filed as a cross-claim. If not the claim may not be asserted unless there is already an established claim again
c. Joinder of Parties
i. Fed. Rule 20: Allows multiple parties to join multiple P or multiple D. only requirement is that it has to have common question of law or fact and from same transaction or occurrence. 1. Any person may join in one action as P if they assert a right to relief if there action occurs in the same set of events or facts or series of occurrences. a. P sues jointly when they each have an interest is a chattel. They sue severely when they have an individual right to recover such as a passenger or driver in a car accident. b. The claims also must arise form the same transaction or occurrence. c. Finally they must come from a common question of fact or law. 2. Parties may also join as defendants a. The same rules apply ii. Permissive Party Joinder 1. You do not have to do this but you can if they have the same transaction or occurrence and come from same question of fact. You are permitted to join all the parties but you do not have to. iii. 1367 must be satisfied for a party to be joined. Just because a party may be from the STOO or have a common question of fact or law does not mean the party is in yet. That is just the first hurdle (1367(a)). 1. 1367(b) --- disallows courts from exercising supplemental jurisdiction over a party when the jurisdiction is based upon diversity. 2. 1367(c) also list factors that might prevent the court from gaining jurisdiction over a party. iv. Adding parties to counter claims and cross claims 1. if a party files a valid counterclaim or cross claims FRCP 13(h) allows a party or add additional parties to the claim under the conditions specified in rule 20. v. Third party claims (Impleader) 1. often there are many or several parties that are responsible. Typically parties will seek contribution or indemnity from other responsible parties. a. A P can use impleader if that P has been sued for affirmative relief in a counterclaim. 2. in order to hear a 3rd party claim a court must have PJ over the new 3PD. Rule 14 allows service to anyone who is within 100 miles of the court. a. Once the third party compliant is filed the 3PD must file any compulsory claims against the other D. Although they do not have to add any 3PD. I am pretty sure that nay party that is joined has to have personal jurisdiction unels they con obtain supplemental jurisdiction. Any party that is compulsory joined is under PJ.
Permissive Party Joinder: Is the joinder of a party permissible? o Is the P asserting right to relief against a D that arise out of the STOO? If yes it is okay as long as it satisfies 1367(b). If no the P may not join the D in a single action. o Can P joint together against a D? They can if they have the STOO. If not they cannot join. Joinder of non parties o Is the part seeking to joinder a defending party? If not they cannot come in. if they are you need to ask is that other party re is no need for them to be there. o Does a party have the right to intervene? If they have an interest they can if they do not there is not need.
vi. Compulsory joinder 1. All of the joinder methods discussed so far allows, but do not require joinder of new parties. In some situations people must be joined. 2. FRCP 19 a. Three step process Must the party be joined in an action? i. Ask (3 questions) 1. … Should the party be joined (19a)? a. is the non-party’s absence is the court able to afford complete relief among those who are already parties to the action? i. i.e. If P was suing D for something and even if P won D could not grant P what she needed. P sues S a teacher a at school because she needs a course that he taught. The school makes the classes. A ruling against D would still not help P. b. Would disposition of the action in the nonparty’s absence impair or impede the nonparty’s ability to protect their claimed interest in relating of the action i. i.e. P sued D for false advertising. X is in eth same business and advertises the same way. X has an interest in the case. c. Does the part present a threat to existing parties.
i. i.e. a group sues a city for race discrimination in hiring. Another group would sue if they did not discriminate. They each have an interest. 2. May the party be joined? a. This looks to see if the court has PJ, SMJ, venue i. i.e for eaxmplae a person who could be added could destroy venue by being an out of state defendant which would destroy the first prong of a diversity test. Or they could destroy diversity all together and not be completely diverse. 3. What are the consequences of not joining? a. If joinder of party is not feasible should the court dismiss? i. Under 19(b) if a person is required to join but refuses, the court will dismiss usually. b. Intervention 24(a) i. They can still seek permissive intervention under 24(b). c. 3 situations where a person should be joined if feasible i. a person should be joined id in the person’s absence complete relief cannot be accorded among those already parties. ii. A person should be joined if that person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the persons’ absence may as a practical matter impair or impede the persons’ ability to protect that interest. vii. The Defendant can join also. 1. They can join counter claims. They are not excluded by 1367(b). they have to file compulsory counter claims. They also have permissive claims but they do not have to. viii. Cross Claims 1. 13(g) these are to defend yourself. You file a claim against codefendant. It is limited to same transaction or occurrence (STOO). 2. third party defendants are also allowed to be brought it. Once party is in lawsuit they can file claims against all other parties as long as it is from STOO.
8. Interpleader
a. Interpleader: special type of joinder to deal with a situation in which a party faces multiple, inconsistent claims. Allows party to bring action against all claimants and have them fight out who gets the stake. i. Typically used by someone who is liable but not sure to whom? 1. Stake: the thing that is being claimed (property or obligation) 2. stakeholder: person who is in possession 3. claimants: parties who seek to obtain property or performance ii. Types of Interpleader: 1. Rule Interpleader (Fed. Rule 22) allows stakeholder to commence an Interpleader in federal court. More binding than statutory Interpleader. Analyzed like any other federal action for purposes of determining jurisdiction and venue. a. SMJ: court must have jurisdiction for every claimant. Stakeholder must be diverse from ALL claimants and exceed 75K. b. Courts must have personal jurisdiction over ALL claimants. Normal rules of PJ apply. c. In federal court venue is proper either where all D reside or where substantial portion of events or omissions giving rise to the cause of action occurred. [if stakeholder brings Interpleader as counterclaim it may be sole D and therefore venue would also be proper in the district where stakeholder resides] d. The cash also has to be paid into the court. (i.e. if the interest is 100,000$ it has to be paid to the court) 2. Statutory Interpleader (USC § 1335) has been given to grant federal courts remedy in interpleader cases. Gives special rules. [Not as limited as Rule interpleader] a. SMJ: only requires minimal diversity. And the amount only has to be 500$. i. Minimal diversity: at least one claimant is diverse from another claimant. b. Personal Jurisdiction: as long as claimants are anywhere in the U.S. they can be served. c. Venue: is proper in any district where one or more of the claimants reside [Does not look to where substantial portion of events or omissions occurred]. 1397 d. Instead of paying it over the court you have the option of paying into a bond.
9. Class Action
a. Class action one or more representatives litigates not only his personal rights but also the rights of others who are similarly situated. A class action cannot proceed without judicial approval. You also need this to settle. 1. When you define a class you need to be specific. a. There can be people from the same class and different side of argument that would pose two different classes.
b. We can affect their property if they are a member of a class and the court has jurisdiction over them. ii. Constitutional Concerns b. Fed. Rule 23 governs class actions i. Requires that the court certify the case as a class action by applying detailed standards. Without this certification any judgment will only be rendered towards the named parties. ii. Fed. Rule 23 has a two step process for certification (absent certification there judgment only applies to the named parties) a. Step 1: first the court must determine whether the case is appropriate for class action b. Step 2: If it is appropriate the court must consider which category. i. FRCP23(f) – gives appellate court the discretion to hear an immediate appeal of a decision granting or denying certification (provided that it is 10 days after the order). 2. FRCP 23(a) – Sets the standard to see if a case qualifies for class action. It tries to set qualification for the class. a. Numerosity [23(a)1]: requires that a class be so numerous that jonder of all parties would be impractical. There is no fixed number but turns on the feature of the case. The rule of thumb is 25. If it is over it will probably qualify. Even if members of eth class drop out after classification, it is still a class. b. Commonality [23(a)2]: Allows a class action only if there are a common questions of law or fact. In other words they have common questions of law and fact. c. Typicality [23(a)3]: States that claims or defenses of the representatives parties be typical of the claims or defenses of the class. This does not mean identical but typical. d. Adequacy [23(a)4]: Requires that the representatives adequately represent and protect the class. This is where you look to the character of the members or see their interests. This is also where you see the adequacy of the lawyers. i. By this they can either have similar or parallel interest, be financially tied or be counsel for the representatives. 1. If the standard is set then the court will look to see if it fits inside one of the three acceptable categories of 23(b). If it odes not it is dead. 2. Courts then move to 23(g) – to see if the lawyers are good enough to be class council who can adequately prosecute the lawsuit. The court wants this type of representation so that it is fair. a. They get to continue to modify the performance of the lawyers. 3. FRCP 23(b) – Lists three types of class actions i. It is important to know what type of class you have because that affects what type of notice you have.
b. 23(b)1 – Prejudice Class this is used when there are a lot of parties that would be necessary parties under rule 19 and allows a class action when (1) if individual outcomes would pose a risk of inconsistent or varying outcomes and expose the opposing party to incompatible standards of conduct or (2) result that as a practical matter would dispose of the interest of the other members, or impair or impede their ability to protect those interest. 1. Should have been joined but since there is so many of them the class action is justified. 2. This is where there is a limited fund or one pocket of money and the potential claims by potential claimants and if done individually, one claim could come and wipe out the fund. This would allow a class action to be fair. c. 23(b)2 – Injunctive class this allows CA when the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief to the class as a whole. d. 23(b)3 – Damage Class This is used as a catchall category. It can be used when the claims are not as intertwined. It can be used when there is a common question of law or fact predominate over question affecting only individual members of the class; Or the a class action is superior to either individual actions or a combined suit using other joinder devices for fairly and efficiently resolving the underlying controversy. i. Requires that the common question of law or fact dominate. ii. Superiority or that the court finds the class action device superior to individual law suits. 4 factors 1. Interest in members of class of control separate actions. If they are each damaged in the millions 2. if there has already been a bunch of law suits filed that have been going on for years it would not be right to have a class action. 3. if there is a back log 4. the difficulties in litigating a class action. e. FRCP 23(c)2 -- Notice under a class action i. Two kinds of notice 1. 23(c)2b The court must give best notice practical under the circumstances. This is for eth damage class a. if it is the injunctive class or the prejudice class it is the best means necessary so you could put it in a news paper. i. Included in the notice must clearly and concisely explain the definition of the class. iii. Subject matter jurisdiction in class actions
1. A class action can only be heard in federal court if it presents a federal question, or the diversity requirement is met or there is supplemental jurisdiction. a. Federal question: this involves the same consideration involved in any other case for federal question b. Diversity: citizenship only needs to be the class representatives. The named representatives have to be from different states. i. 1367 -- For amount in controversy congress allowed for absent class members can have amounts below requirement. ii. 1332d – requires minimal diversity. It also allows aggregation of amounts. If the aggregated claims of all the members of the class exceeds 5 million then you can have diversity. c. Supplemental jurisdiction: this might prove necessary when some of the members of the class might qualify for federal SMJ and others do not. If the claims are form a common nucleus of operative fact. It may apply in diversity cases when some of the claims meet the sum and other do not. iv. Notes 1. 1453(b) – allows any defendant to remove to federal court by one D without regard to citizenship. So now more class actions in state court can be removed to federal court. 2. Do you have to have personal jurisdiction over unnamed class members? It does not matter. There is a different burden on unnamed class members. 3. 23.1 is a specialized class action called a derivative class action where a shareholder says that they are being affected by the poor judgment of company employees that is affecting stock. a. It requires that it be verified or sworn under oath (not a requirement under other class actions) b. Requires a statement of how they made an effort to avoid litigation. v. Procedure after certifications 1. Notice a. FRCP 23(b)(3) says that class representatives must give notice to all members of the class and afford those members the right ti opt out of the class. i. If a member cannot be found he is excluded from the judgment. ii. The notice must say: 1. the court will exclude any member of the class at their request. 2. if a member does not request exclusion he will he admitted in the class and be bound by the judgment 3. a member who does not ask to be excluded may enter an individual appearance through counsel.