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Personal jx: Individuals/CorporationsIn personam jx in federal courtR. 4(k)(1)(A), Subject to jx in state courtR. 4(k)(1)(B), R. 14 or R. 19, 100 mi.Statute: Federal? Forum/bulge long-arm?Constitution: 5A/14A? Forum/bulge contact?Reasonableness?R. 4(k)(1)(C), With federal long-armR. 4(k)(2), 1331 basis, no jx in any court5A, national contacts; reasonableness?In personam jx in state courtStatutory authority: Long-arm statuteConstitutional authority: 14A due processTraditional bases for in personam jxPresence: Pennoyer, Grace, BurnhamDomicile: MillikenConsent: Kane, Hess, IrelandCorp registration: Gen jx, reasonableness?Ouster: Carnival Cruise (reasonableness)Non-traditional bases – Int’l ShoeSpecific jx – Arising out of contactsMinimum contactsAffiliating circ’s: World-WidePurposeful availment: HansonStream of commerce: Asahi O’Connor: Purposeful direction, not awareness/knowledgeBrennan: Financial benefit and knowledge sufficeStevens: ReasonablenessScalia: Contacts threshold?In-forum effects: Calder, KeetonNon-commercial: KulkoReasonableness – World-WideP’s interest: AsahiD’s burden, esp. foreign Ds: AsahiState regulatory interest: McGeeFederal interest: AsahiEfficient resolutionSubstantive normsGeneral jx – Any subjectContinuous and substantial: PerkinsContinuous and systematic: HelicolChanged test, or easier test for P?Reasonableness? Met LifeContinuum? Brennan, HelicolRelated contacts, reasonablenessBlack, Int’l Shoe: regulatory interestPersonal jx: PropertyIn rem jx: Declare ownership against worldQuasi in rem I jx: Declare ownership against indivs.Debt follows debtor: HarrisQuasi in rem II jx: Bring suit up to value of propertyStatutory authorityFederal, R. 4(n) governs4(n)(1): Federal statute4(n)(2): State statute, no in personam jxState, look to state statutesConstitutional analysisUsed to just attach property: Pennoyer Now effectively jx over individual: ShafferMarshall: Minimum contactsReal prop. and use are contact: RhoadesPowell: Real prop. immune to min contacts, concerned about enforcement actionsBut about property, not old actionStevens: Notice, reasonablenessBrennan: Regulatory interest overridesOften cannot get jx against allShareholder derivative suitsTotally redundant? Enumerated acts statutesLimited appearance: Contest merits w/o in personamDE statute in Shaffer did not have oneNot required by Constitution: York v. TexasNoticeMullane: “Reasonably calculated” to inform D as someone “actually desirous” of notifying, Due ProcessGreene: posting the eviction notice on a tenant’s doorInsuff. if foreseeable will not see, no add’l. effortsDifferent interests of tenants, like MullaneMixing in personam with methods for in remDusenbery: notifying the prisonerNo need for “heroic efforts” to notifyTotal institutions, need reach institution, not DJones: failure to pay tax, auctioned, cert. mail returnedCertified mail insufficient, make additional effortsStill duty to keep address updated, no phone bookDissent: Ex ante, no info acquired while notifyingOpportunity to be heardThe basic test from Mathews, extended in DoehrD’s interest in control and harm to D from deprivationD posts bond to regain: Mitchell; Di-Chem resists“Tremendous hardship”: Sniadach, FuentesPart ownership: Fuentes; part deprivation: Doehr“Erroneous deprivation”: likely will wrongly deprive?Judge or clerk? MitchellDocuments or allegations? Mitchell, FuentesImmediate hearing? Di-Chem, FuentesMandatory? MitchellP posts bond? Mitchell; Fuentes resistsP’s interest in preventing concealment/wasteEase of concealment/waste: MitchellP has any direct interest in property? DoehrSubject matter jx: State ctsJurisdictional statusClear statement rule: Lacks, ArbaughGoals of system: statutes of limitations, Sand & Gravel Facilitate administration of claimsLimits the scope of gov’t waiver of immunityPromotes judicial efficiencyLaws of other statesLaws of other states, unless policy against it: HughesStatute of limitations, apply consistently: Wells, Sun OilFederal law in state courtsMay hear: Tafflin; Must hear: HowlettNo different policy due to Supremacy ClauseDo not discriminate against fed. law, 14A, ScaliaSubject matter jx: Fed cts, diversity/alienageStatutory authority – 28 U.S.C. §1332DiversityComplete diversity: Strawbridge§1332(d)(2): CAFA, min. diversity, named Ps§1332(a)(1): Citizens of different statesDred Scott: Federal law, U.S. to be state citizenIndividuals – Domicile, intent: Mas§1332(c)(2): Rep. of decedent, infant or incompetent deemed citizen of same stateCorporations, §1332(c)(1), state of incorporation, principle place of businessNerve center: HertzUnincorporated associations, all members§1332(d)(10), CAFA, see corporationsAlienage§1332(a)(2): Citizens of a state and foreigners§1332(a)(3): Citizens of different states in which citizens of a foreign state are additional partiesNo stateless aliens: Blair HoldingsForeign corporations count: JP MorganProbably allows NY + alien v. NJ + alien§1332(a)(4): Foreign state as P and citizens§1332(a): Deeming ruleSingh: Considered citizen of stateSaadeh: Contract jx rather than expandIntec: PRAs have dual citizenshipLikely preferred ruleAbsurd that PRAs not need protection§1332(a): Amount in controversy >$75,000Injunctive relief, value to P (Glenwood Light), or to D, or to party seeking federal court, or to eitherAggregation of claimsOne P v. one D, aggregate claims, R. 18Multiple Ps/Ds, only “single and indivisible”Piggyback using §1367: AllapattahQuestioning the amount in controversyGood faith, legal certainty to attack: AFA ToursKnowledge after filing irrelevantConstitutional authority – Art. III §2: Minimal diversitySingh interpretation of the deeming ruleRelevant if alternative statute provided authorityCollusionConspiracy to create jx – 28 U.S.C. §1359Assign interest to someone§1359 denies jx: KramerConspiracy to destroy diversity/alienage jxNot codified, generally allowedDismiss “nominal or formal” parties added solely to destroy diversity: Rose v. GiamattiSubject matter jx: Fed cts, federal questionStatutory authority: 28 U.S.C. §1331 – “Arising under”Arising under Constitution, laws or treatiesRecord says “as broad as Constitution”; amount in controversy then, so narrowerGrable: Determining “arising under”Issue in well-pleaded complaint, MottleyNot aff. defense or counterclaimsIf declaratory judgment, reformIssue disputedEmpire: “Fact-bound & situation-specific”Smith: Real debate as to interpretationIssue substantial; not “merely colorable,” SmithIs there a federal cause of action?Merrell Dow: RequiredBrennan: Imply, c.o.a. & jx distinctFootnote 12: Backs away, really nature of the federal issueGrable: “Welcome mat”, not requiredShoshone: Not when state or factual issuesIs it otherwise enforceable?Empire: Other parts enforceable, no intentBreyer: Forgot/assumed §1331Moore: Fed. standard in state statuteDifferent if interstate commerce?Congressional intent to be enforceable? Cort v. Ash: Imply causes of actionTransamerica: Only intent in textConstitutional q with national significanceSmith: Constitutional challenge to federal law inherent to state claim, jxBivens: Imply right of action, Const. issueFederal-state balance maintainedGrable: Few, important to fed gov’t, jxEmpire: Many, steal auth. from state, no jxPolicy IssuesFederal interest, not controlling in EmpireDocket control, real motivation in Empire§1337 (commerce), §1338 (IP), §1343 (civil rights), §1345 (US as P), §1346 (US as D) and othersGrant jx for actions under statutes/domainsApply constitutional standardConstitutional authority – Art. III §2Same “arising under” language, interpreted broadlyOsborn: federal ingredient testNeed not be raised or not already settled, e.g. Bank of the United States’ ability to be sue or be sued or ability to enter into contracts, Planter’s BankVerlinden: Very broad authoritySubject matter jx: Fed cts, supplementalPendent v. Ancillary jx distinction, just keep in mindPendent = claims/parties joined by P in complaintAncillary = claims/parties joined laterOriginal ancillary auth. to enforce: KokkonenScalia: Power mentioned in settlementParties providing subject matter jx to court? Statutory basis – 28 U.S.C. §1367§1367(a): “So related…they form part of the same case or controversy”Gibbs: “Common nucleus of operative fact”Alternative interpretations not Gibbs?Permissive counterclaim (R. 13) “so related” w/o Gibbs? Jones: yes; Iglesias: noContrary to the rule of Finley Exceptions§1367(b): Mandatory exceptions, diversity(1): Not over P’s claims against joined parties under Rs. 14, 19, 20 or 24Kroger had the same exceptionImpleader claims under R. 14; D considered third-party P?(2): Not over claims by R. 19 or 24 parties §1367(c): Discretionary exceptions(1): Novel or complex issue of state law(2): State claims(s) predominate(3): Federal claim dismissed(4): “Exceptional circumstances”, AldingerProvide reason: Exec SoftwareLeavey: Consider Gibbs test, worried about overemphasis of §1367(c) listConstitutional basis – GibbsConstitutional case: Art. III, s. 2“Common nucleus of operative fact”Guide for appellate reviewState claim in orbit of federal claimState issues “substantially predominate”State claims more factually richDamages mostly from state claimsFed. dismissed (not dispositive in Gibbs)Jury confusionSubject matter jx: RemovalConstitutional authority – Art. III, s. 2Any case with original jx may be heard in fed ctStatutory authority - 28 U.S.C. §1441§1441(a): Remove to district containing forumShamrock: May not remove on counterclaim§1441(b): Diversity, not if D citizen of forum state§1441(c): If parts have jx and parts do not, whole case is removed, fed ct may decide caseConstitutional? Rarely relevant, test broad§1441(f): Remove when fed ct has jx, state ct does not Subject matter jx: ObjectingCan be raised at any time during a lawsuit, even on appealRuhrgas: Can look at subject matter jx before personal jx even if motions out of orderRaising in collateral attackCan collaterally attack if default judgmentR.2nd of Judgments: If no default, collaterally attack if… “Manifest abuse of authority”“Infringe authority of another tribunal”“Lacking capability to make judgment on jx”Same as the rules for preclusionNon-party witness can attack: Catholic ConferenceVertical conflicts of law: ErieSubstantive law: Erie RRStatutory argument, overturning Swift“Laws of the several states” incl. common lawText w/ common law in early draftsCongress concise or wanted to omit?Policy argumentReduced uniformity, states ignoreUncertainty in application of lawLitigant discrimination, forum shoppingCorporations reincorp, Black & White TaxicabNon-residents deprive res. of state lawConstitutional argumentNo authority to create general common lawCongress cannot override, unreviewableBut maybe protective jx?Procedural law: HannaStatutory authority – 28 U.S.C. §2072: Rules Enabling Act (REA)§2072(a): Is the rule procedural?Sibbach; Hanna: “Really regulates procedure”Shady Grove: Manner & means of enforcement§2072(b): “Abridge, modify or enlarge a substantive right”?Redundancy: Redundant w/ §2072(a)Shady Grove pluralitySeparation: carves out rulemaking power that affects substantive rightsIncidental: Permits rules that affect rights but primarily regulate procedureStevens in Shady Grove, balancingLook to RDA below28 U.S.C. §1652: Rules of Decision Act (RDA)Whether state law procedural or substantive, ErieOutcome determinative test: York, RaganErie: Forum shopping & litigant discriminationRutledge, York: Question whether federal courts acting as state courtsState & federal interest, outcome-determ.: ByrdPreference for juries consistent with 7ANew third test of outcome-affective?Gasperini: Harmonize fed and state rulesFed rule on point, make two rules fit together Shady Grove: Wrong, enforce fed rightsHarlan, Hanna: Change conduct outside courtConstitutional authorityIf meets the REA test, yes, Congress has powerHarlan, Hanna: Single system best, no uncertainty, message to legislatures to keep substance and procedure separateHorizontal conflicts of lawChoosing state lawHague: State discretion in forming choice of law rulesKlaxon: Fed cts apply rules of states in which they sitHard rule: Day & Zimmerman (Cambodian law)Consider implications: FerensVan Dusen: If transfer, law applied originallyInterpreting state lawBound by decisions of highest state court, law frozenIf no decisions, consider what would decide, McKennaLower court decisionsDicta in recent decisionsOther relevant sourcesCannot decline bc hard to det. state law, MeredithCertificationCan certify to the high court: Louisiana PowerCourts can refuse to hear certification: TunickCircuits encompassing state might bind: Factors Etc.Familiar with local law, more likely to get it rightDissent: Not binding otherwise, why binding here?Abstain when state law unsettled; like Meredith?Stay, force P to try state law, then fed case, res judicataFederal Common LawEnclave theory (Meltzer)Anywhere there is a federal interestCompelling reason for federal over state common lawState law counter to fed interests: Clearfield TrustParnell: Actual federal interestBoyle: Fed immunity on procurement, extends to contractors, interferes w/ procurementCoextensive w/ congressional authority (Field)National uniformity when states at oddsInterstate commerce: HinderlinderAdmiralty disputes: KossickCommerce w/ foreigners: Banco NacionalStatutory grant of authority (Kramer)Rules Enabling Act, Rules of Decision ActVertical conflicts of law: Reverse ErieSubstantive law – Supremacy Clause, Art. VIWard: Must apply fed law when fed statute on pointSola Elec.: Fed law even when defense, e.g. patentProcedural law – Supremacy Clause, Art. VIDice: Jury trials on facts in fed law casesFed right burdened by state procedureConflicting procedure substantial part of fed rightFed interest outbalanced by state interest, not outcome-determinativeBombolis: Jury trials by nonunanimous verdict if state standardWestern Ry.: No state pleading rules when fed lawFed. Energy: Law requiring fed. proc. ConstitutionalPleadingR. 12(b)(6): Dismiss for failure to state a claimR. 7: Types of pleadings: complaint, answer, replyR. 8: “Short and plain statement”D on notice, pleadings and proof separateThe modern rule, Twombly, IqbalAccept factual allegations as true (still Conley)Ignore legal conclusions, conclusory statementsConnect conclusions to facts in worldMight be inconsistent with Rule 11?See if facts plausibly suggest illicit conductContext-specific inquiryForesee/address judge’s assumptionsInferences not P’s favor; equipoise, dismissedConley: “No set of facts” which would entitle reliefTwombly: Plausibility; no inferencesPolicy: reduce frivolous lawsuits, easier discoveryStevens: Ct has tools, disrespectful to institutions, no s.j. standards before discoveryNot change Rules; fed common law or FRCP?Result-oriented, “legal conclusions” problemPardus: Pro se, back to Conley, limited discoveryChallenge whether Twoqbal transubstantiveIqbal: Confirms Twombly has broad applicationSouter: Like Swierkiewicz, force to endorse theoryDifference between Twombly and IqbalTwombly: “Suggestion of plausibility”Iqbal: “Reasonable suggestion of plausibility”R. 9: Special pleading standards9(a)(1): Need not allege capacity or authority to suit9(b): Fraud or mistake, “state with particularity”Civil Rights cases, generally no heightened standardBautista: Provide guidance on fixingSwierkiewicz: Need not allege p.f. case as might not be needed if direct evidenceResponses to a complaintFile an answerAdmit, uncontested even if false/misleadingDeny specific allegations, open to discoveryNo information to admit or deny, effect of a denialGeneral denial, really risky, opens up to sanctions, are you really denying location of offices, etc.?How do Twombly and Iqbal affect D’s burden?R. 12(e): Motion for a more definite statementR. 12(f): Motion to excise incendiary allegations SanctionsR. 11: General sanctions11(b): Reasonable inquiry11(c): The sanctions themselves(2): Separate motion, 21 days to amend(3): Sua sponte, immediate, almost civil contemptRemoval11(b): P “further advocates”, still can sanctionAuthority to sanction when no subject matter jx28 U.S.C. §1927: Excessive, unreasonable costsInherent authority, latest tricks, due process rightsPretrial Conferences/Case Management: R. 16R. 16(b): Scheduling Order16(b)(4): Only amend “for good cause”, high standardFahim: Explanation of reasons, importance of amendment, potential prejudice, continuancePotomac Electric, Francois: importanceR. 16(c): Pretrial ConferencesVelez: Have to ask for extension before dateKassner: Judicial discretion on R. 15/16 conflicts; diligence of movant and prejudice to nonmovantConnolly: Judge must overseeR. 16(f): Sanctions if you miss deadlinesValuesExpedition (rocket docket)Early control to encourage settlementShedden: What if show up to say never settle?Discourage waste of resources, especially timeImprove quality of discovery, trialDiscoveryR. 27: Availability of discoveryIn re Sheila Roberts: No prefiling discoveryR. 26: Conferences on discovery26(f): Mandatory disclosure of informationR. 30: DepositionsR. 33: InterrogatoriesR. 34: Production of documentsZubulake: Cost usually on the party producing documents, unless very highR. 26 and 37: SanctionsIf routinely do something blatantQualcomm: Post-verdict for withholding infoPreclusionBasic requirementsRecognitionNo personal jx: default, had to waive for judgmentNo subject matter jx and collateral attack standardValid judgment: final judgment, notice of pending caseFinal judgmentInterlocutory orders do not countAppealsRst. says district cts preclude while on appealCourts do not follow RestatementOnce needed judgment on merits, not true nowRes judicata – claim preclusionMutualitySituations creating mutuality, defined by TaylorNonparty agrees to be bound, Carnival Cruise?Parties in privityInterests represented: class, trustee, guardianNonparty who has assumed control, MontanaNonparty litigating through proxy; collusionSpecial situations; bankruptcy, in rem actionsIdentical claimRush: Single transaction testCommon nucleus of operative fact, GibbsR.2 Judgments testRelated in time/space/origin/motivationWhether form a convenient trial unitWhether conforms to business usagePolicy: Same witnesses, same documents, same arguments, must argue at the same timeFuture injuries also barred?Chose to sue early, out of luckAllow to sue if could not have knownStatute of limitations an issue; not begin until could have known of injury?Continuing series of activitiesJones: Default on loan, acceleration, sue for month, barred from suing for full laterCollateral estoppel – issue preclusionSame issue: Single, legally relevant pointRst. of Judgments testR’ness of producing all evidence at first trialForeseeability that would later arisePassage of time, changed situationDiffering legal standards of proof in each caseLitigated and decidedEssential to judgment, party had reason to appealMutuality (see above)Nonmutual defensive issue preclusion (NMDIP)Bernhard: Unjust to reopen when P litigatedBlonder-Tongue: Federal application of NMIPCan show no full & fair opportunity to litigateOr court can deny for “justice and equity” Nonmutual offensive issue preclusion (NMOIP)Parklane: Allowed w/ discretion, two factorsPromote judicial economyWhether P could join original actionFairness to DDifferent incentives in litigationDifferent procedural opportunitiesInconsistent resultsVirtual representationDisallowed in claim preclusion: TaylorQuery whether barred in issue preclusionIntersystem preclusionState-state – Art. IV, Full Faith & Credit, rendering ctState-federal – 28 U.S.C. §1738, rule of rendering ctAllen: State criminal cases have issue preclusive effect in federal civil cases, despite 28 U.S.C. §1983Comity between state and federal courtsReluctant to allow de novo review of state ctCongress did not want to limit preclusionBlackmun, Allen: Mutuality then, allow to relitigateFederal-state§1738 and Full Faith and Credit do not applySupremacy Clause might apply?In federal question jx, accepted fed rule controlsIn diversity jx, nasty Erie problemsClaim preclusionSemtek: Deputize state ruleNarrow R. 41(b), applies to rendering ctNot state r. if counter to fed interestsIssue preclusionOpen questionMutuality rules determined by state rule? ................
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