Civil Procedure Outline I. Personal Jurisdiction a. Constitutional Limits on Personal Jurisdiction – Due Process and the 14 th Amendment. i. Minimum Contacts Test (International Shoe v. Washington) 1. Systematic and Continuous and give rise to the claim a. there will always be personal jurisdiction. 2. Systematic and Continuous but the claim does not arise from it. a. Jurisdiction is appropriate if the contacts are substantial. Substantial can mean: i. Conduct of extensive corporate operations, management, and/or administrative activity within a state. 3. Isolated and Sporadic Contacts that give rise to the claim a. Specific Jurisdiction. Jurisdiction is proper if the defendant purposefully availed himself to the forum state and if the assertion of jurisdiction would be reasonable. i. Purposefully avails himself the privilege of conducting activities within the forum state. ii. Merely being able to foresee that one’s actions will cause injury in the forum state is not enough. iii. Intentional wrongful conduct that has effects within a state is sufficient. iv. Entering into a contract with a forum resident can be sufficient. v. Must be based on the actions of the defendant and not unilateral actions of the plaintiff. 4. Isolated and Sporadic and not relating to the claim a. No personal jurisdiction. ii. Will assertion of personal jurisdiction comport with fair play and substantial justice? 1. Generally, if the defendant has the requisite minimum contacts with the forum state, it will not be unreasonable for the case to be tried there. 2. Five Factor Analysis a. The burden on the defendant b. The Forum State’s interest in adjudicating the dispute c. The plaintiff’s interest in obtaining convenient and effective relief, d. The interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and e. The shared interest of the several States in furthering the substantive social policies iii. Traditional Basis for Personal Jurisdiction 1. Transient Presence a. Where a defendant is served with process in state, such in state service suffices to establish personal jurisdiction, without reference to whether such an assertion would be reasonable. b. However, if presence is procured by fraud, jurisdiction is not obtained. There is a difference between fraud and trickery. iv. v. vi. vii. viii. ix. 2. Voluntary Appearance, Consent – if defendant doesn’t have a special appearance, or argues on the merits, he consents to personal jurisdiction unless in federal court. Contacts coming from the Stream of Commerce 1. O’Conner – mere placement into the stream of commerce is not enough. Must intend to serve the forum state when they participate in the stream of commerce. 2. Brennan – placing a product into the stream of commerce with awareness that it will be marketed in forum state suffices to establish minimum contacts with the state. Personal Jurisdiction based on Internet Contacts 1. Zippo Manufacturing v. Zippo Dot Com a. Classifies websites as either: i. Passive (merely allows the owner to post information on the internet) – no jurisdiction ii. Active ( – jurisdiction is appropriate iii. Interactive – depends on the degree of interactivity and commercial nature of the website. A highly interactive commercial website will generally support personal jurisdiction. Consent to Jurisdiction 1. Forum Selection Clause in the Contract – generally enforceable. Forum State residents - Jurisdiction may be exercised over an individual who is domiciled within the forum state, even if he is temporarily absent from the state. 1. A person can only have one domicile for this purpose 2. Domicile is more limited than residence 3. Domicile = current dwelling place + intent to remain indefinitely. Personal Jurisdiction in Federal Court 1. Rule 4(K)A federal court has personal jurisdiction only if a state court in the state in which it sits would have personal jurisdiction. a. 100-Mile Bulge Rule – if the party was joined under rule 14 or 19 and served within a judicial district not more than 100 miles from the place where the summons was issued, jurisdiction can be established under rule 4(K)(1)(B) b. Interpleader – if the party is subject to federal interpleader jurisdiction under 28 U.S.C. 1335, jurisdiction can be established under rule 4(K)(1)(C). c. Federal Statutory Provision – d. Alien Provision – if the claim is against a person not subject to personal jurisdiction in any state, In Rem Actions – Over a thing, which gives the court power to adjudicate a claim made about a piece of property or about a status. An action to quiet title to real estate, and an action to pronounce a marriage dissolved are examples. 1. Such actions will generally meet the minimum contacts standard. They are isolated but directly related contacts that warrant jurisdiction. x. Quasi In Rem Actions – action is begun by attaching property owned, or a debt owed by the defendant within the forum state. Differs from In Rem because the action is not about the thing being seized. Any judgment only the property seized. 1. There must still be sufficient minimum contacts to confer jurisdiction. xi. In Personam Jurisdiction over Corporations 1. Any action may be brought against a domestic corporation which is incorporated within the forum state. 2. The test for whether a corporation is a resident of a state for In Personam purposes, is only if it is incorporated within the state. b. Statutory Limits on Personal Jurisdiction i. Personal Jurisdiction in a State is proper only when: 1. 1) It falls within the terms of a state statute and 2. 2) Jurisdiction is constitutional. ii. Long Arm Statutes – Specify the scope of that State’s personal jurisdiction authority 1. Rhode Island Model – authorizes jurisdiction to the constitutional limit. No further statutory analysis is required. 2. Enumerated Act Model – specifically articulates factual circumstances where courts can exercise personal jurisdiction. You must then next determine: a. Statutory Analysis – Do the facts of the case fall within one of the categories articulated in the long-arm statute. II. Notice and Opportunity To Be Heard a. Notice – Due Process requires that one made a party to an action be notified of its pendency before a court is permitted to adjudicate that party’s rights. i. The Constitutional Requirement 1. Notice must be reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. a. Adequate Information – must convey sufficient information to notify the party of how and by when it should respond b. Must allow a reasonable time to appear c. Method – a method that one desirous of actually informing would use. Was the most reasonable means used? d. Service by Publication in general i. Generally, not valid. ii. Only permissible when a person cannot be found after “reasonable diligence” is used to find him/her. iii. Cannot be sufficient unless the defendant’s name and address are not known. 2. Does not have to be the method most likely to succeed is required, nor does it require that notice is actually received. 3. Only the most reasonable means available and reasonably practical. 4. The method of service employed is what is important, a constitutionally deficient procedure cannot be overcome by the fact that actual notice was received. ii. Statutory Requirements – Service of Process must comply with both the constitutional minimum and any additional statutory or rule requirements. 1. Where a party has several residences that he permanently maintains, service is valid when made at the dwelling house in which the party is then living. iii. Immunity, Evasion, and Sewer Service 1. Witnesses, litigants or lawyers who come into a state to participate in one suit may be immune from process concerning other suits. 2. Immunity is sometimes granted to persons who are induced to enter the state through fraud or deceit. 3. Some state statutes prohibit service on Sunday. 4. Sewer Service – dishonest process servers who certify that process was served when in fact it was not. b. Opportunity to be Heard – parties have a right to be heard before a court can make any determination of their rights. i. Three part standard for determining the validity of pre-deprivation procedures. (Connecticut v. Doehr) 1. Courts are to consider the nature of the property interest at stake, which requires courts to evaluate the significance of the private interest that will be affected by the prejudgment measure. 2. Courts are to examine the risk of erroneous deprivation through the procedures under attack and the probable value of additional safeguards. These risks can be mitigated by procedures that require the plaintiff to make bond, or that involve a judge in making the determination, but such procedures need not be adversarial in nature. 3. Courts are to consider the interest of the party seeking the prejudgment remedy and if relevant, any ancillary interest of the government. III. Subject Matter Jurisdiction – There is a presumption against federal jurisdiction. A plaintiff must properly plead that federal jurisdiction exists. a. Diversity of Citizenship Jurisdiction (28 U.S.C. 1332) i. In disputes where the amount in controversy exceeds $75,000, federal courts have jurisdiction to hear 1. Suits between citizens of different states 2. Suits between citizens of a state and citizens of foreign states (aliens) 3. Citizens of different states where aliens are also parties, 4. Foreign states as plaintiffs and citizens of a state. ii. Complete Diversity Rule 1. No Plaintiff can be a citizen of the same state as any defendant. Plaintiff can be from the same state, and defendants can be from the same state. iii. Determining Citizenship of Individuals 1. Domicile, not residence is what counts 2. Domicile = current residence + intent to remain indefinitely. 3. Domicile at the time the suit is filed is what counts. 4. Motive for moving domicile is irrelevant. iv. Determining Citizenship of Entities 1. Corporations – citizenship is based on its place of incorporation and the place where its principal place of business is located. a. Nerve Center Test – the location of decision-making authority, typically its headquarters. b. Muscle Test – the location of the bulk of the corporation’s production or service activities. 2. Non-Incorporated Businesses a. Citizens of every state and country of which its partners or members are citizens b. Legal Representatives are deemed to be citizens only of the state of the party whom they represent. v. Representative Suits and Assignments of Claims 1. Tort claims are not assignable, but contract claims are. 2. 28 U.S.C. 1359 – the district court has no jurisdiction over cases “in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court. 3. An assignment for adequate consideration, does not run afoul of 1359. 4. Courts look to the citizenship of the decedent, minor, or incompetent, and not to the citizenship of the representative. vi. The Domestic Relations and Probate Exceptions 1. Federal courts refuse to hear domestic relations cases. 2. The issuance of divorce, alimony, or child custody decree are the types of domestic relations cases that it won’t hear. 3. It does not preclude jurisdiction over cases simply because they involve conflict between family members. vii. The Amount in Controversy Requirement 1. Must EXCEED $75,000 2. Aggregation allowed only in the following situations: a. There are multiple claims by one plaintiff against one defendant b. There are multiple plaintiffs asserting an undivided interest. c. There are multiple defendants with joint and several liability. Each defendant could be liable for the whole thing. 3. Equitable relief a. Traditional view – ask whether the defendant’s alleged acts harm the plaintiff by more than $75,000. b. Some courts look at whether complying with the injunction would cost the defendant more than $75,000 c. Today most courts uphold jurisdiction if the amount is met from either the plaintiff’s or the defendant’s viewpoint. b. Federal Question i. Narrow Interpretation of the Jurisdictional Grant – “arising under” the federal law must be set forth as a claim, not as a defense 1. The Well-Pleaded Complaint Rule a. The essential federal element must appear on the face of the plaintiff’s well-pleaded complaint. b. Alleging an anticipated constitutional defense in the complaint does not give a federal court jurisdiction if there is no diversity of citizenship. c. The presence of a federal element must be genuine and not artfully pleaded. 2. Well-Pleaded Complaint Problems Raised by Declaratory Judgments a. Declaratory judgment actions are proper under the Act only if supported by an independent basis of jurisdiction, such as diversity of citizenship or federal question. b. A declaratory action may be entertained in federal court only if the coercive action that would have been necessary, absent declaratory judgment procedure, might have been so brought. i. E.g. the patent holder who seeks a declaration that its patent is valid and is being infringed invokes federal jurisdiction because it could just as easily have sought coercive relief in the form of damages, or an injunction. c. It doesn’t matter who would bring the coercive action, so long as one could be brought by one of the parties. 3. Centrality of the Federal Issue to the Claim a. The well-pleaded complaint must be sufficiently central to the dispute. b. The federal law only needs to be an ingredient in the case. c. In regards to a state cause of action that turns on the “construction or application” of federal law. i. Smith case – where it appears from the bill or statement of the plaintiff that the right to relief depends upon the construction or application of the Constitution or laws of the United States, and that such federal claim rests upon a reasonable foundation, the District Court has jurisdiction. ii. Moore case – brought a state cause of action that raised a substantial federal question, but subject matter jurisdiction was denied. iii. Merrell Dow Case – A complaint alleging a violation of a federal statute in a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim arising under the Constitution or laws of the U.S. c. Supplemental Jurisdiction (1367) i. Federal courts may hear state law claims as long as they are so closely related to the underlying dispute as to constitute part of the same “case or controversy” under Article III. d. Removal Jurisdiction i. A defendant in a state court action may have the case transferred (removed) to the federal district court geographically embracing the location of the state court, if the case could have been brought in federal court originally. ii. Can only be based on the plaintiff’s claim, not possible on the basis of the defendant’s counterclaims or defenses. iii. If the plaintiff’s claim qualifies for diversity, federal question, or supplemental jurisdiction, they may be removed to federal court. iv. Where a claim is being removed based on federal question jurisdiction, separate and independent claims that would not qualify for supplemental jurisdiction can be removed to federal court, but not where removal was based on diversity. v. All defendants must agree to removal vi. Defendants must comply with the time limits prescribed in the removal statute. 1446(b) – provides 30 days in which to remove. Defendant will never have fewer than 30 days from the service of process. 1. If a defendant is added after 30 days he cannot remove the case because the original defendant didn’t remove it and all defendants must agree. vii. The plaintiff must file a motion to remand in order to get the case back in state court. viii. Removal is not permitted if the suit is filed in the defendant’s home state. IV. Venue – Determines where within a court system a case can be brought. It is primarily a matter of convenience. a. Local and Transitory Actions i. Local Actions – involve land and historically include three major categories of disputes: 1. In rem or quasi in rem cases, in which real property is the basis of jurisdiction. 2. Cases in which the plaintiff seeks a remedy in or to realty, such as a claim for quiet title, ejectment, foreclosure of a mortgage, enforcement or removal of a lien; and 3. Claims for damages for injury to land, such as trespass. ii. Most courts hold that in the above situations venue must be laid where the land is located. 1. If a property is in two districts, venue is proper in the district that has most of the property. iii. Transitory Actions – any case that is not a local action is a transitory action, and the vast majority of cases are transitory. b. State Venue Provisions i. Venue restrictions identify where within the state, in which county, parish, or other subdivision cases are to be adjudicated. c. Venue in Federal Court i. Federal courts only have personal jurisdiction if the state in which they sit would have personal jurisdiction, therefore state personal jurisdiction doctrine limits the places in which a defendant can be sued within a federal system. ii. Congress has enacted venue statutes which specify where within the federal system particular types of cases must be filed. iii. General Venue statute governing federal civil practice is 28 U.S.C. 1391 1. Civil Action based only on diversity of citizenship may be brought a. A judicial district where any defendant resides, if all defendants reside 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 a substantial part of property that is the subject of the action is situated, or c. A judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, only if there is no other district in which the action could be brought. 2. Civil action not founded on diversity of citizenship may only be brought in: a. A judicial district where any defendant resides, if all defendants reside 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 a substantial part of property that is the subject of the action is situated, or c. A judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 3. The fallback provisions a. You can only refer back to the fallback provision if neither of the first two tests gives you venue. b. If they do suggest a venue, then that is the end of the matter, regardless of whether the tests give you the venue that you want. c. Where either test lays venue in districts besides the one where the case has been filed, venue is improper in that district and the case should be dismissed or transferred. 4. Residence of Corporate defendants a. Corporations reside in the district where they are subject to personal jurisdiction, or, where multi-district states are involved, to reside in the district “with which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State. PJ and SMJ look to domicile or where the permanent address is. You can also have more than one domicile. If there is no sufficient contact in any district you look to where the most contacts are. 5. Residence of Individuals a. Courts have generally held that “resides” as applies to individuals is synonymous with domicile. 6. Venue is proper under the Fair Debt Collection Practices Act in the district where an allegedly offending letter is received because 1391 allows for venue in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. d. Change of Venue i. Transfer of Civil Cases in State Courts 1. All states have provisions allowing the transfer of civil cases from one county to another. 2. Most states permit a defendant to seek transfer if she is unlikely to get a fair trial where the case is filled. 3. No state can unilaterally transfer a case from one of its courts to a court in a different state. However, it has the option to dismiss the case under the doctrine of “forum non conveniens.” ii. Transfer of Civil Actions in Federal Court 1. Federal law authorizes the transfer of civil actions from one federal district court to another. These transfers are not restricted by state lines. a. Transferor court – court in which the case was originally filed, and from which it is transferred. b. Transferee court – The court in which the case is transferred to. 2. 1404(a) Transfer – the transferor court is a proper venue 3. 1406(a) Transfer – the transferor court is an improper venue. iii. Where Can Cases be Transferred? 1. 1404(a) – permits transfer to any district where the suit “might have been brought.” a. Where it might have been brought, cannot be interpreted to mean where it can now be rebrought with defendants consent. 2. 1406(a) – Cases can be transferred only to a district in which venue and personal jurisdiction would be proper. a. Do not forget that when venue is improper it can okay be transferred to places that have personal jurisdiction and venue would be proper. IF venue is already proper it can be transferred to a court iv. Goldlawr Transfers 1. If a case if filed in a district in which venue and personal jurisdiction is improper the court may still transfer the case. 2. Lower courts have applied this under 1404(a) as well as 1406(a). v. Forum Selection Clauses – a forum selection clause specifying where litigation concerning the contract is to occur is not entitled to dispositive weight in deciding whether to transfer a case. vi. Choice of Law 1. In state court, the forum applies it choice of law rules. 2. The federal court will apply which states laws in the state in which it sits. 3. When a defendant seeks a 1404(a) transfer, that transfer is simply a change of courtroom and should not change the law that is applied. 4. Even where the plaintiff requests the 1404(a) transfer, the transferee court will apply the law that the transferor court would have applied. vii. Standard for Transfer Under 1404 and 1406. 1. 1404(a) – in deciding whether to transfer the court will consider: a. Convenience of the parties b. Convenience of the witnesses, and c. The interest of justice 2. 1406 – If the case is filed in an improper venue, the court “shall dismiss, or if it be in the interest of justice, transfer.” viii. Multidistrict Litigation 1. 1407 – allows mass torts such as airplane crashes or toxic torts, where there may be many cases pending in different federal districts, all of which raise one or more common question, to be transferred to one district and consolidated for pretrial proceedings. e. Forum Non Conveniens i. Permits the dismissal of a case over which a court has jurisdiction and venue on the ground that practical factors indicate that it should be heard in another court and that court is outside of the same judicial system. ii. Differs from transfer of venue in that, a transfer is appropriate when practical factors suggest another more convenient forum and that forum is within the same judicial system. iii. To obtain a dismissal for forum non conveniens, two requirements must be satisfied: 1. There must be an adequate alternative forum available for the case. a. The fact that the alternative forum’s law is less advantageous to the plaintiff does not in itself bar dismissal on forum non conveniens grounds. 2. There must be a showing that interests of convenience to the parties and certain public interests argue in favor of the alternative forum notwithstanding plaintiff’s choice of the current forum. V. Raising Jurisdictional and Related Challenges a. The Traditional and Modern Approaches to Challenging Personal Jurisdiction. i. Special Appearance (only use to object to jurisdiction in state court) 1. Allows the defendant to appear in a forum for the sole purpose of contesting in personam jurisdiction. 2. If defendant does more than this, he is deemed to have made a general appearance, which subjects him to the in personam jurisdiction. 3. Raising an objection to personal jurisdiction along with a notice to remove the case to federal court does not constitute a general appearance ii. Federal Rule 12 1. Answer and Complaint: Unless a U.S. statute supersedes, the answer must be served: a. If summons served: the answer must be served within 20 days of service b. Collateral and Direct Attacks on Personal Jurisdiction (You can only raise one or the other). i. Direct Attack on personal jurisdiction – you make a special appearance to contest the personal jurisdiction. 1. Disadvantages: a. If the lawyer is not licensed to practice law in the forum state, the client will have to find another attorney to appear there on his behalf. b. If you lose the direct attack, then in most jurisdictions, appellate review is allowed only after the trial court has entered a final judgment. A minority of jurisdictions allow review by appeal before the trial starts. ii. Collateral Attack on personal jurisdiction – ignore the process and wait for a default judgment. Then when the plaintiff attempts to enforce the default judgment in the home state, argue that the forum state didn’t have personal jurisdiction. 1. Advantage is that the client is allowed to litigate at home. 2. Disadvantages: a. The plaintiff can try to enforce the judgment anywhere the client has property, forcing the client to raise the collateral attack in a distant forum. b. Collateral attack allows client only to raise the issue of whether personal jurisdiction was proper. Once there is a default judgment, you cannot then argue on the merits. c. Challenging Federal Subject Matter Jurisdiction i. Usually defendant will challenge subject matter jurisdiction by moving to dismiss under Rule 12(b)(1). ii. Rule 12(h), timing of defenses iii. Subject Matter Jurisdiction cannot be waived. It can be raised by a party after losing on the merits even. iv. Plaintiffs have concealed the lack of jurisdiction until after losing on the merits. v. Defendants have concealed lack of jurisdiction until after the state court statute of limitations has run. The federal case must then be dismissed, perhaps leaving the plaintiff without remedy. vi. A defendant who litigates the issue of subject matter jurisdiction and loses, cannot then challenge it again in a separate action. There are a few narrow exceptions vii. If a party litigates on the merits of the case without raising the issue of subject matter jurisdiction, that party cannot then assert the lack of subject matter jurisdiction in a collateral suit. viii. The Restatements of Judgments – permits a defendant to attack collaterally a default judgment base upon lack of subject matter jurisdiction, except where granting the relief would impair another person’s substantial interest of reliance on the judgment. ix. However, few modern decisions have sustained a collateral attack on a default judgment where the sole issue is lack of subject matter jurisdiction. VI. Pleadings and Judgments Based on Pleadings (Rule 8a) a. Introduction and Integration – Pleadings are documents filed by litigants, setting forth their claims and defenses. i. Complaint – Is sent by the plaintiff to initiate the lawsuit. ii. Answer – A document in which the defendant responds to the allegations in the complaint and may raise new matter called affirmative defenses. iii. Reply – in some jurisdictions the plaintiff may then respond to any new matter brought up in the defendant’s answer. iv. The earliest system expected pleadings to do four things: 1. Put parties on notice of claims and defenses of their opponents. 2. State facts each party believes it can prove. 3. Narrow the number and scope of issues needing trial; and 4. Provide a quick method for resolving meritless claims and defenses. v. Modern systems tend to limit the function of pleadings to giving notice. b. Historical Overview of the Evolution of Pleadings i. The Federal Court and most American States adopt the Federal Rules. 1. Pleadings are designed to give notice and provide a mechanism for ready testing of the legal sufficiency of a claim 2. Instead of pleading facts, the plaintiff makes a short statement of his claim, showing that he is entitled to relief. ii. A minority of states including CA, and NY adhere to the code pleading rules. 1. Code pleading emphasizes pleading facts. The code complaint should contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. c. The Complaint – Rule 8(a) i. Requirements 1. Elements of a Complaint – Three requirements 2. 3. 4. 5. 6. a. A “short and Plain statement of the grounds upon which the court’s jurisdiction depends.” b. A “short and plain statement of the claim showing that the pleader is entitled to relief” c. A “demand for judgment for the relief the pleader seeks” which is known as a prayer. i. Ad damnum – where the prayer is asking for monetary recovery. ii. Does not limit the plaintiff’s recovery, unless there is a default judgment. Form of Pleadings a. Under rule 10(a), the caption of any pleading must state the name of the court, title of the case (by parties names) and the identity of the document itself. b. The body of the pleading sets forth claims or defenses in numbered paragraphs c. Rule 10(c) allows parties to adopt by reference allegations found elsewhere in the document. d. Rule 10(c) also allows parties to attach a copy of a written instrument to their pleadings. Legal Sufficiency a. On the face of the complaint, the allegations must support a judgment for the plaintiff or it will be dismissed at the outset. b. Under code pleading, the defendant would test the legal sufficiency of a complaint by filing a demurrer. c. In federal court 12(b)(6) is the motion to dismiss for failure to state a claim. If the complaint does not state a claim the state grants the demurrer or the rule 12(b)(6). It can be done in two ways: a. Leave to amend (without prejudice) – the plaintiff has another opportunity to draft a legally sufficient complaint. b. Without leave to amend (with prejudice) – plaintiff may now appeal and attempt to convince the appellate court. The Defendant can attack the entire complaint through a general demurrer or a 12(b)(6) motion or he/she can address one of several claims made by the plaintiff. Factual (or formal) sufficiency: The Debate Over Specificity. a. Code Pleading i. Plaintiffs must state “ultimate facts” constituting her claim. ii. Facts that are too specific could be pleading the evidence. iii. Facts that are alleged too generally could be guilty of pleading conclusions of law. iv. Defendants are permitted to seek amplification of the plaintiff’s pleading through a motion for more definite statement. v. Defendants may also move to strike redundant or scandalous matter from a pleading. b. Federal Rules of Pleading i. The Federal Rules of Civil Procedure only require that a complaint contain a short and plain statement of the claim showing a right to relief. ii. The Federal Rules rely on discovery procedures and other pretrial devices to develop the facts. iii. Complaints dealing with fraud and mistake must be pled with particularity. c. The Common Counts – Allow a one-sentence allegation for money had and received, quantam meruit, quantam valebant, and for indebitaus assumpsit. Code states and the Federal Rules allow them. 7. Heightened Specificity Requirements in Certain Cases a. Rule 9 states exceptions to the liberal pleading provisions in rule 8(a)(2). These exceptions must be stated with greater specificity: i. Capacity ii. Fraud, Mistake, Condition of Mind 1. Accusations of fraud must be specific. 2. Accusations of malice, intent, knowledge, and conditions of mind may be alleged generally. iii. Conditions precedent iv. Special Damages – damages that are not the natural or inevitable result of injuries that are included in the complaint. b. Courts have imposed higher pleading requirements in certain situations not mentioned in the Federal Rules as warranting treatment. The Supreme Court has had to intervene on several occasions to overturn such practices, indicating that it is inappropriate for lower courts to impose these higher pleading requirements. 8. Pleading Inconsistent Facts and Alternative Theories (Rule 8(e)(2)). a. A plaintiff may plead inconsistent counts in the affirmative where she is genuinely in doubt as to what the facts are and what the evidence will show. b. Where a key witness is deceased, pleading alternative sets of facts is often the only feasible way to proceed. ii. Voluntary Dismissal – Rule 41(a) 1 free one if: 1. An action can be dismissed by the plaintiff without a court order if: a. He files the notice of dismissal at any time before service of an answer or motion for summary judgment is made (whichever is sooner). Or b. Filing a stipulation of dismissal signed by all parties who have appeared in the action. 2. Dismissal Will be Without Prejudice Unless: a. Otherwise stated in the notice b. The notice of dismissal operates as an adjudication upon the merits c. The case is filed by a plaintiff who has already dismissed the action for the same claim in another court 3. Action Dismissed by the Court a. Unless dismissed under 41(a)(1), an action shall only be dismissed upon a court order. b. If a counterclaim has been pleaded by the defendant prior to service of the Plaintiff’s notice of dismissal then: i. The case cannot be dismissed if the counterclaim cannot remain as an independent action. ii. The plaintiff’s claim can be dismissed if the counterclaim can remain as an independent action. iii. Dismissal of 41(a)(2) is without prejudice. iii. Involuntary Dismissal (Rule 41(b)) – the defendant or the district court may order involuntary dismissal. 1. Defendant may move for a dismissal of any claim if plaintiff: a. Fails to prosecute b. Fails to comply with the Federal Rules of Civil Procedure c. Fails to comply with any court order. 2. Dismissal under 41(b) is with prejudice, unless the court: a. States otherwise b. Dismissed the case for lack of jurisdiction c. Dismissed the case for improper venue d. Dismissed the case for failure to join a party. d. Defendant’s Options in Response – Two choices: 1. Bring a motion, or 2. answer. i. Motions - A request the court order something. 1. 12(b)(6) motion to dismiss for failure to state a claim on which relief can be granted. Serves two functions: a. It tests the legal sufficiency of the plaintiff’s claim, questioning whether the law accords a remedy on the facts alleged. b. It tests the factual, or formal, sufficiency of the complaint, questioning whether the plaintiff has set forth his/her claim in appropriate detail 2. Motion for Summary Judgment (Rule 56) – If the facts are undisputed, and the defendant is entitled to judgment as a matter of law. 3. Motion for a more definite statement (12e) – 4. Motion to strike (12f) – if something in the complaint is scandalous. ii. The Answer – a pleading that responds to allegations of the complaint and may add new matter as well. 1. Responses to the Plaintiff’s Allegations – there are three possible responses to the various allegations of the plaintiff’s complaint: a. Admissions – pleadings establish undisputed facts on which there need be no trial. b. Denials i. General denials – defendant denies everything. Only allowed if defendant can in good faith deny all allegations of the complaint. Very Rare. ii. Specific Denials – Responding to each paragraph of the complaint individually is common practice. iii. Rule 8(b) requires that the defendant only admit or deny and not plead contrary facts. In a code state it could count as an admission. c. Denials for Lack of Knowledge or Information i. A party may state that it is without knowledge or information sufficient to form a basis as to the truth of an averment. This will have the effect of a denial. ii. This defense cannot be used if the defendant has reasonable access to the information or if it is a matter of public record or general knowledge. iii. When the defendant denies an allegation, the allegation is said to be “joined.” This simply means that the issue is contested and an issue which an evidentiary determination is required. d. If you do not admit or deny something in the allegation, it is treated as if you admitted to it. 2. Affirmative Defenses (Rule 8c) a. Requires the defendant to raise affirmative defenses b. Defendant must be specific about affirmative defenses. c. It is bringing in a new fact. iii. Claims by the Defendant 1. A defending party can also assert claims against other parties and in some circumstances, force the joinder of additional parties. Principal claims by defendant: a. Counterclaim – against the opposing party. i. The plaintiff must then file a reply. b. Cross-claim – against a co-party. iv. Failure to Respond: Default and Default Judgment 1. If a party fails to respond in an appropriate and timely way, they may find themselves in default. a. Different from default judgment. b. Simply a ministerial notation on the court’s docket sheet that the defendant has failed to plead or otherwise respond in time. c. The plaintiff cannot obtain money or other relief on the basis of a default. The plaintiff must get a default judgment. 2. Rule 6(b) Enlargement a. A court may use its discretion to extend time periods i. With or without a motion – if a request is made before the expiration of the original time period. ii. Upon motion – after expiration of original time period, if the failure to act was caused by excusable neglect. 3. Rule 54(c) Demand for Judgment a. Judgments by default: a default judgment cannot exceed (or differ from) what was requested in the pleadings. b. Judgment without default: Judgments not reached by default may be different from or exceed that which was demanded in the pleadings. 4. Rule 55 Default a. Entry: The clerk shall enter default judgment when: i. A party has failed to plead, and ii. Affirmative relief is sought against the defaulting party, and iii. The fact that a party defaulted is proven by an affidavit or otherwise. 5. Rule 60 – Set aside a default judgment a. More then good cause shown, must be more than excusable neglect. b. Must be done within a reasonable time, not more than one year. e. Amended Pleadings i. Basic Principles Under Rule 15(a) 1. Parties have a right to 1 amendment: a. Before the answer or responding pleading is served. b. In a non-responsive pleading, 20 days after the pleading is served. 2. Otherwise, the amending party must: a. Request a “leave of court” to amend the pleading, or b. Obtain written consent from the adverse parties. 3. Answering Amendments – must be done within the longer of: a. 10 days after service of the amendment, or b. The time remaining within the original 20 day response period. ii. The Problem of Variance Under Rule 15(b) 1. The presentation of evidence on a point not covered in a pleading is called variance. 2. It allows amendment to conform to the evidence presented at trial. iii. Amendment and the Statute of Limitations Under Rule 15(c) 1. Based on what a plaintiff learned from the defendant’s answer, a plaintiff may wish to join another claim or party. a. Amendments must relate back to the date when the complaint was filed. b. Same conduct transaction or occurrence is considered to relate back to the original complaint filed. c. You can add a party if: the party knew about the lawsuit, and knew or should have known that but for a mistake they would have been sued originally. f. Supplemental Pleadings (didn’t spend much time in class about this) i. Sets forth events occurring after a pleading is filed. This does not include facts that occurred before the original filing, but which were discovered after filing. ii. Allowed only with the courts permission iii. However, courts freely grant leave to supplement, unless there is undue delay, prejudice, or bad faith. g. Veracity in Pleading: Rule 11 and Other Devices i. Rule 11 1. Basically you must allege things in good faith 2. A certification is the signature, it is not under oath, it is a certificate to the court. ii. Rule 11(c) Sanctions 1. Initiated by the other party a. The party will have a 21 day safe harbor in which he can correct it or leave it alone. 2. On Court’s Initiative a. The burden of proof will fall on the pleader to show that it is not in violation. b. In addition the party will not have the 21 day safe harbor to change. VII. Scope of Litigation – Joinder and Supplemental Jurisdiction a. Introduction and Integration i. This chapter deals with what parties can be joined and what claims can they assert in a civil action. ii. At common law joinder rules were restrictive, resulting in multiple suits for what could easily be seen as a single overall dispute iii. In order to avoid duplicative litigation, avoid unnecessary expenses for the litigants, reduce backlog in court systems, and avoid inconsistent results, the modern joinder practice in the Federal Rules permits the joinder of parties and claims along transactional lines. iv. Joinder rules merely provide procedural mechanisms by which to assert a variety of claims. They do not and cannot alter the requirements of personal jurisdiction, subject matter jurisdiction, and venue. v. Every claim joined in federal court must have a basis of federal subject matter jurisdiction. b. Real Party in Interest, Capacity, and Standing i. Rule 17(a) 1. Every action must be prosecuted in the name of the real party in interest. 2. The real party in interest will not necessarily be the person who receives the benefit of a favorable judgment. 3. 1332 – you disregard the citizenship of the representative, only look at the citizenship of the RPI. ii. Subrogation is an assignment by operation of law and arises commonly in insurance cases. The insurer would be the Real Party in Interest. 1. Minority (Direct Action State) – Company can sue under its own name. 2. Majority (Other States) – Company must sue under the name of the insured. c. Claim Joinder by Plaintiffs i. Procedural Aspects Rule 18(a) 1. Allows a claimant to assert as many independent or alternate claims as he has against an opposing party. These include: a. Original Claims b. Counterclaims c. Cross-claims d. Third party claims. 2. Applies even if the claims are not transactionally related. It declares open season on the defendant. 3. 18(a) is permissive, it does not require the plaintiff to assert all claims that he has against the defendant. a. However, the plaintiff must also consider the preclusion rules. Closely related claims might have to be raised concurrently at the risk of being barred under the doctrine of claim preclusion in any future actions. 4. The decision of the court to join additional unrelated claims is discretionary. Rule 42(b) – A court may split any claims for any of the following reasons: a. To avoid prejudice b. To further convenience c. To increase economic efficiency 5. The rule is procedural only and cannot affect subject matter jurisdiction ii. Jurisdictional Aspects 1. What happens when a party has federal jurisdiction over one claim, and then uses Rule 18(a) to join a claim over which there is no federal question or diversity of citizenship jurisdiction? 2. 1367(a) – Allows the Federal Court to have supplemental jurisdiction over all claims that are so related to the claims of action within original jurisdiction that they form part of the same case or controversy. (Gibbs Test, “Common Nucleus of Operative Facts”) a. The court can hear State and federal claims that state separate causes of action as long as they are factually closely related. b. The court is not required to exercise this right. Factors for the court in determining: i. Judicial economy ii. Convenience iii. Fairness to the litigants c. If the issues are so complicated that they are confusing to the jury then the court probably should dismiss the state claims. d. The issue of whether pendant jurisdiction was proper should remain open throughout the litigation. e. If before the trial the federal claim is dismissed, then the state claim should also be dismissed. = d. Permissive Party Joinder by Plaintiffs i. Procedural Aspects Rule 20 (permits joinder of multiple plaintiffs and defendants) 1. All persons may join as plaintiffs or defendants if they assert or are subject to any right to relief which both: a. Arises out of the same transaction or occurrence, and i. Or series of transactions and occurrences. ii. Plaintiffs may join unrelated defendants when a single injury arises out of a series of events or transactions. b. Has a question of law or fact common to all co-parties in the action 2. Jurisdictional Aspects a. What if the plaintiff has a claim against one defendant which invokes federal question jurisdiction and a claim against a second defendant that does not have an independent basis of jurisdiction? b. 1367(b) – Supplemental Jurisdiction is not proper when it involves the joinder of parties. e. Claim Joinder by Defendants i. Counterclaims 1. Compulsory Counter Claims Rule 13(a) a. Procedural Aspects i. A compulsory counter claim (any related claim arising out of the original action), must be joined in the pleading. Exceptions: the claim is already subject to another pending action, and the defendant brings suit by attachment or process without the court’s jurisdiction. ii. When a party is defaulted for failure to file a pleading, the default applies to all matters the party should have pleaded. b. Jurisdictional Aspects i. P purports to assert a federal question claim against D, but it does not actually come under federal law. Before the case is dismissed, D files a counterclaim that has independent federal jurisdiction. Federal Jurisdiction? 1. No. You look to the well-pleaded complaint rule, which only looks at the plaintiff’s complaint. ii. If the plaintiff’s complaint does have federal jurisdiction, but the defendant’s compulsory counterclaim does not, it must invoke supplemental jurisdiction. iii. A compulsory counterclaim will always satisfy supplemental jurisdiction. 2. Permissive Counterclaims – Rule 13(b) a. Allows for the defendant to assert any claim they have against an opposing party. Doesn’t necessarily arise from the same transaction or occurrence. b. Jurisdictional Aspects i. If it does not invoke an independent basis of federal subject matter jurisdiction, it can only be heard through supplemental jurisdiction. ii. Under 1367(a) Supplemental Jurisdiction only applies to claims that arise from a common nucleus of operative facts. By definition, permissive claims do not arise from the same transaction or occurrence. iii. It is possible for a counterclaim to be permissive and satisfy the 1367(a) test. 1367(a) only requires a loose factual connection. ii. Cross-Claims – Rule 13(g) (Usually are considered permissive). 1. Cross-claims are permissive and are limited to claims arising out of the same transaction or occurrence of either: a. The original action, or b. A counterclaim, or c. Relating to any property subject to the original action. 2. Indemnity: Cross-claims may include a claim to a co-party to indemnify the claimant for all or part of the liability arising out of the action. 3. Once you have 13(g) rule 18(a) allows you to add anything else. 4. Jurisdiction: a. The cross-claim must arise from the same action or occurrence, so there will almost always be supplemental jurisdiction. Always start with an independent form of jurisdiction when assessing the jurisdiction of a claim. f. Overriding Plaintiff’s Party Structure i. Rule 13(h) – allows the defendant to join additional parties to their cross-claims and counterclaims, so long as the joinder meets Rule 20 or Rule 19. (this is if they are necessary or they are permissive) 1. Defending parties joined must be subject to personal jurisdiction and there must be subject matter jurisdiction over the claim against the added parties. 2. Supplemental jurisdiction is readily available for all transactionally related claims under 1367(a). 3. 1367(b) does not thwart supplemental jurisdiction because: a. 1367(b) purports to preclude supplemental jurisdiction only over claims by plaintiffs. So long as the defendant is asserting the counterclaim, 1367(b) should not thwart it. b. 1367(b) does not list 13(h) in its list of claims over which supplemental jurisdiction is precluded. ii. 1367(b) – plaintiff cannot file certain claims under supplemental jurisdiction when the original basis for subject matter jurisdiction is diversity. 1. No supplemental jurisdiction over claims by P against parties under: a. Rule 14 – Claims by P against third party b. Rule 19 – Indispensable parties – if new party destroys diversity. c. Rule 20 – Permissive Joinder d. Rule 24 – Intervention, third party seeking to intervene as P iii. Impleader (Third Party Practice) Rule 14 1. A defending party can assert a claim against a non-party (the third party) claiming that the third party is liable to the defending party for all or part of the claim being asserted against that defending party. a. Indemnity – pass total relief on to another b. Contribution – partial relief 2. A sues B and B feels that C should be liable to B if B is liable to A. B can bring a rule 14 claim against C. C will now be called a third party defendant. 3. Claims against third parties can only be for reimbursement for all or part of any amount a defending party would owe to its opponent if the opponent prevails. 4. Once a third party is properly asserted, the third party may join additional claims against the third party defendant under rule 18(a). These are permissive only. 5. The court must have personal jurisdiction and subject matter jurisdiction over the third party. 6. A claim against a third party will generally qualify for supplemental jurisdiction. However, state law claims by plaintiffs in diversity actions against non-diverse third-party defendants will not qualify for supplemental jurisdiction. iv. v. vi. vii. 7. Defendant may assert claims against third parties without the permission of the court if done within 10 days of service of its answer or anytime thereafter with leave of the court. Jurisdictional Aspects of Impleader 1. In an action that is based solely on diversity, the plaintiff may not assert a claim against a third party defendant when there is no independent basis for federal jurisdiction. Compulsory Joinder (Necessary and Indispensable Parties) 1. Rule 19(a) – Persons to be joined if feasible - Person who is subject to personal jurisdiction, and will not destroy subject matter jurisdiction will be joined if: a. Relief cannot be accorded without them b. Person claims an interest related to action and will not be able to protect the interest if not in litigation, or could subject party in multiple litigation. 2. A party is indispensable under Rule 19 if judgment in his absence would be prejudicial and inadequate. 3. Joint Tortfeasors are not necessary parties under Rule 19. 4. Rule 19(b) – If 19(a) is not feasible, the court should determine in good conscience if it should proceed or if the party should be added and action dismissed. 4 factors to consider: Jurisdictional Aspects of Compulsory Joinder 1. Three Step Analysis a. Is the party needed for adjudication? b. Is Joinder feasible under 19(a) c. Apply four factors – decide if should proceed or dismiss action i. How judgment in the absence will affect the present parties. ii. The extent that prejudices may be avoided or reduced by other means. iii. Will judgment in absence be adequate? iv. Will P have adequate remedy if the case is dismissed? Intervention 1. Intervention as a right, 24(a) – protects the same interest as rule 19(a), but it is brought by the absentee and not the defendant. a. Intervention will not be allowed if the parties rights are adequately protected by an active party. 2. Permissive Intervention, 24(b) – allowed by statute and if the applicants claim is related to the main action by question of law or fact a. The court must use its discretion in making the decision to allow it. 3. Jurisdictional Aspects a. First look for an independent basis b. 24(a) will provide supplemental jurisdiction because it involves the same transaction or occurrence. c. 24(b) – much more difficult to find supplemental jurisdiction, but it can be done the same as in 13(h). Most of the time you will need an independent basis for jurisdiction. VIII. Special Multiparty Litigation: Interpleader and the Class Action. a. Interpleader i. Procedure brought by a stakeholder who has possession to a thing and there are several claimants to it. 1. True Interpleader – the stakeholder is “disinterested” and has no claim to the thing. 2. “In the Nature of Interpleader” – the stakeholder does have a claim to the disputed property ii. Rather than engage in successive litigation with each potential claimant, interpleader allows the stakeholder to force all claimant into a single proceeding. iii. The Two Types of Interpleader in Federal Court 1. Rule Interpleader (Rule 22) a. There needs to be complete diversity b. Amount in controversy must be $75,000 + c. Paid into the court d. Venue – Section 1391 (could be where property is) e. Sufficient minimum contacts apply 2. Statutory Interpleader (Section 1335) a. Minimal diversity – only need diversity between at least 2 claimants. b. Amount in controversy is $500 or more c. Might pay into court, but can also post a bond. d. Specific venue statute (section 1397) broader (where claimant is). b. Limits of Interpleader to Avoid Duplicative Litigation i. Insurance companies do not have to wait until claimants against their insured have reduced those claims to judgment before invoking interpleader. 1. Otherwise, there would be a race for claimants to obtain judgment, and the first one might be able to secure a disproportionate share of the fund. 2. Interpleader was not designed to grab lawsuits from other jurisdictions and force them together. 3. Interpleader cannot be used to solve all of the problems of multiparty litigation. IX. Class Action a. Background i. One or more class representatives are formally joined as parties in the case. The members of the group they represent are not joined, but are bound by the outcome of the litigation. b. Policy and Ethical Issues i. It is efficient in that it allows recovery of a large number of claims in one action. ii. Critics say it is a potentially huge burden on the court and potentially results in litigation that would not otherwise occurred. iii. The class member is usually motivated by principle because he/she does not stand to recover much money. iv. However, the lawyer may be motivated by economics and not principle and may cause him to settle prematurely because of the economic incentive. v. Because of the potential abuses, class action litigation has placed increase burdens on the courts, forcing them to protect parties. c. Constitutional Considerations i. A class action Judgment does not bind parties that were not parties to the case and whose interests were not represented. d. Practice Under Federal Rule 23 e. Filing and Certification of a Class Action – Two steps: 1. The class must satisfy each of the prerequisites in Rule 23(a), 2. The representative must demonstrate that her class falls within one of the three types of class actions recognized by Rule 23(b). i. Requirements for class under 23(a) 1. Definition of class will be tested, pulled, and pushed, and the court may say broad or narrow, based on geographic area, parties represented, fact patterns existing. 2. Numerosity – no specific number, rule of thumb is 25. 3. Commonality – Questions of law and fact are common to the case. 4. Typicality – the claims or defenses of representatives are typical of those of the class. Not identical, but typical. 5. Representative parties will fairly and adequately protect the interests of the class. ii. Types of Class Actions Under Rule 23(b) 1. 23(b)(1) Prejudiced Class – Two kinds a. 23(b)(1)(A) – permits class litigation where separate actions would create a risk of establishing incompatible standards of conduct for the party opposing the class. b. 23(b)(1)(B) – Limited fund class actions. Some claimants will recover and others will win their judgment later and have no fund against to recover. i. First show it’s limited fund ii. Next, show that the distribution is equitable iii. Finally, there must be a constructive bankruptcy situation. If all claims are paid the business tanks. 2. 23(b)(2) Injunctive Class a. A situation where action must be taken to prevent further damage to property or person. 3. 23(b)(3) Damage Class a. Common question of law or fact dominates b. Class interests must dominate individual interests. The claims must be similar. i. Ex - $20 per airline ticket. Not: some people killed some merely injured. If they are dissimilar they should be filed individually. c. Superiority, class action device must be a superior method than the individual claims. d. 4 Factors in finding Superiority i. Similar not Varying Damages – parties interests in individual actions. Varying damage awards based on different injuries ii. Existing litigation – the extent and nature of any existing litigation (already pending class action, or in individual class). Then certification makes less sense. iii. Concentration – the desirability of concentrating all of the claims in one jurisdiction. iv. Over-Concentration – Difficulties in managing the class action: Similar to numerosity. Too many people, and it would be better to do hundreds of individual claims. 4. There may be a combination of any of these class actions. The Type of class will also affect the notice that is sent. iii. Notice to Class Members of the Pendency of the Action 1. 23(c)(1) For Damage Class – Use Mullane type of notice. Best practicable manner under the circumstances. Individual notice where available. 2. 23(c)(2) – For any class certified under (b)(1) or (b)(2) (prejudice and injunctive) may have “appropriate notice.” Might be ads in a national magazine or newspaper, online publishing, generalized or international publications. 3. Components a. Nature of action b. Definition of class certified c. Class claims, issues, or defense d. Entry of appearance by a class member through counsel e. Exclusion from class members who request it. f. Binding effect of a judgment on all class members. iv. Council 1. 23(g)(1)(b) – attorney must fairly and adequately represent the interests of the class 2. 23(g)(1)(c)(i) The Court must consider a. The work counsel has done in identifying and investigating potential claims b. Counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted c. Counsel’s knowledge of the applicable law d. Resources council will commit to representing the class. v. The Court’s Role in Dismissal and Settlement 1. 23(e) the court must notice in reasonable manner to all members bound by the proposed settlement/dismissal. 2. 23(e)(1)(c) – A hearing is required to find that the settlement, voluntary dismissal or compromise is fair, reasonable, and adequate 3. 23(e)(2) – Parties must notify court of any side agreements, settlements, voluntary dismissal or compromise of the claims, issues, or defenses of class. 4. 23(e)(3) – The court gives parties in a Damage Class a 2 nd chance to opt out in cases particularly where the settlement amount is low. 5. 23(f) – permits courts of appeal to grant an appeal of a court’s decision on certification. a. At court’s discretion b. If moved within 10 days after entry of the order. 6. Attorney Fees 23(h) a. Reasonable fees not limited to an hourly rate though not even an hourly rate is guaranteed. b. Objectionable by adverse party, certainly if they feel the settlement is inequitable in a manner overly prejudicial to them. c. 17 U.S.C. 1712(a) – attorney’s fees based on coupons can be redeemed. i. Incorporates injunctive relief, requires court approval ii. Expert testimony on “actual value to the class members iii. Court may order a portion to be available to 501(c)(3) organizations f. Subject Matter Jurisdiction i. If common question of law is a federal question, there is no issue. ii. If diversity is at issue 1. Only consider the citizenship of the named representatives. The must be of different states than the defendants. It creates the need for plaintiff’s counsel to name representatives who are diverse. 2. For amount in controversy, section 1367 applies a. Absent class members were allowed to individually possess claims under minimum amount because the common nucleus of law fact incorporates the claims. 3. 1332(d) on minimum diversity and aggregation a. It allows the aggregation of all members of the class. If it exceeds $5 million there is federal amount in controversy for purposes of federal subject matter jurisdiction. 4. 1453(b) – any defendant may remove without consent of the other defendants and it doesn’t matter if that citizen is a member of the state in which the class action is filed. g. Personal Jurisdiction i. The forum must have personal jurisdiction over the defendant, but not over all of the individual plaintiffs. 1. The named class representative waived personal jurisdiction by filing (including absent class members). ii. The class action form protects the plaintiffs interests, so personal jurisdiction is not required. iii. If a defendant is a class member there must be personal jurisdiction over all members. h. Shareholder Derivative Action 23.1 i. Additional requirements 1. Must be verified (meaning sworn under oath) 2. Must contain in the complaint efforts made by P to the action the P desires from the directors or corporate authority AND the reasons for P’s failure to obtain the action. i. Removal i. Class action in state court, one or more defendants want to remove it. Barrier to removing from state court to federal court? None. Only diversity of class representatives is looked to. 1. Can do it if there is jurisdiction in federal court. 2 ways a. 1332(a) – normal diversity. Look to complete diversity between named class reps and all Ds and the amount in controversy of class reps. Use supplemental jurisdiction over unnamed class members. Because of 1453, you may ignore the citizenship of Ds. b. 1367 Amount in controversy of named class reps. c. 1332(d) class action jurisdictional statute. Looks to diversity between any member of the class action and any D. Aggregates for amount in controversy if greater $5,000,000 d. How do you remove? 1453. No requirement of consent of all Ds. Ignores citizenship of D who is removing.