CIVIL PROCEDURE, OCHOA



CIVIL PROCEDURE

Outline

Rule 4 1391, 1404, 1406 1441, 1446

SMJ ( PJ ( Notice & Service ( Venue ( Removal ( Waiver

Fed Q Specific-MC/reasonable

Diversity General-continuous/systematic

Supplemental Challenge-12(b)

I. JURISDICTION: SUBJECT-MATTER JURISDICTION (SMJ): authority of a court to hear certain class of disputes (diversity and federal question)

Allows fed jurix if both diversity of citizenship AND amount in controversy exceeds $75,000

a. 28 USC § 1332: An action must be between citizens of different states, or between citizens of a state and citizens and subjects of a foreign state, or between citizens of different states and in which foreign states or citizens or subjects thereof are additional parties.

b. COMPLETE DIVERSITY: every plaintiff must be of diverse citizenship from every defendant: (no P can be domiciled in the same state as any D)

INDIVIDUAL

i. An individual is a citizen of a state ONLY if he or she is both:

1. Citizen of US (born or naturalized) or an alien admitted for permanent residence; AND domiciled in that state.

a. Domicile: 1) Residence within that state, AND 2) Intends to remain in that state indefinitely (intends to return whenever he or she is absent—ex: voter registration, driver’s license, family, property, house, permanent job)

ii. Individual remains a citizen in the state of his or her former domicile until he acquires a new domicile

1. Citizenship is determined at the time the suit is filed

2. American citizen living abroad: has no domicile w/in the US and cannot sue or be sued in federal court on diversity jx

iii. Gordon v. Steele: intention to remain indefinitely determines domicile

iv. Mas v. Perry: last domicile will remain your domicile until you acquire a new one for the purpose of citizenship

v. Saadeh v. Farouki: 1332a4 An alien admitted to the US for permanent residence shall be deemed a citizen of the State in which he is domiciled for diversity purposes.

-Jurix denied where foreign US resident sued by foreign national b/c legislative intent: the federal court system was not designed as a forum for foreign nationals to sue each other

CORPORATION

i. A corporation is a citizen of both:

1. the state in which it is incorporated, AND

2. the state in which it has its principal place of business.

a. “Nerve center”: corporate HQ: “locus of corporate decision-making authority” OR

b. “Muscle” test: the state where company has most activity

OTHER

i. Domicile of representative(s) only: Class action, Shareholder derivative suit

ii. Executor = domicile of decedent

iii. Representative of incompetent, minor = domicile of incompetent, minor

c. JURISDICTIONAL AMOUNT: Amount in controversy must exceed $75,000

i. Single P against single D can aggregate unrelated claims

ii. Multiple Ps or multiple Ds can only aggregate claims if there is an undivided interest-prop

iii. Claims cannot be aggregated by separate Ps-Zahn

d. FEDERAL QUESTION

28 USC §1331: District courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

i. “Well-Pleaded” complaint rule – complaint only contains the c/a-not additional material, cannot be an anticipated defense:

ii. Louisville & Nashville RR v. Mottley

1. Requires P’s c/a in a well-pleaded complaint to have been created by federal law; complaint may not anticipate any federal defenses. Suit “arises under constitution” if c/a is based on federal law or constitution.

2. Policy: the Mottley Rule increases judicial efficiency by allowing courts to determine from the outset of the complaint whether it has jx rather than waiting for the D’s answer; Also so P’s cannot invoke fed jx simply by speculating fed arguments that the D could raise

iii. 28 USC 2201: Declaratory judgment: remedy to discover rights or obligations, for diversity

construct hypothetical law suit

e. SUPPLEMENTAL JURISDICTION: 28 USC §1367: discretionary: If there is federal SMJ over one claim there is supplemental jx over all other claims which are so related that they form one “case or controversy”

i. Gibbs test-1367 (a): if a single P has a substantial federal claim and an associated state claim that arises from a “common nucleus of operative facts” the two claims can be joined and tried in federal court

ii. Owen-diversity/Finley-fed question: evolution of 1367

iii. Pendent party jurisdiction: 1367 (a) expressly authorizes supplemental jurisdiction over claims involving the joinder of add’l parties to a federal question claim or a diversity claim, UNLESS such claims are excluded by subsection (b)

iv. 1367(b) does not apply if parties meet jurisdiction requirements individually

v. 1367(b) does not allow supplemental jurisdiction where SMJ is solely based on diversity where claims joined under: (THUS if you fall within the 1367(b) exception, you can join only if you independently satisfy diversity: diff states, amount in controversy)

P ( D

19 (mandatory joinder) 14 (impleader of 3rd party D)

24 (intervention) 19 (mandatory joinder)

20 (permissive joinder)--convenience

24 (intervention)

[missing = 20, 23]

vi. 1367(c): gives district court discretion to decline to exercise supplemental jx if one of four criteria are met:

1. Claim raises novel or complex issue of state law

2. State-law claim substantially predominates over claim over which there is federal jurisdiction

3. Claim over which there is federal jurisdiction is dismissed (esp. if dismissed before trial)

4. Other exceptional circumstances raise a compelling reason for declining jurisdiction

vii. Stromberg (overrules Zahn): supplemental jurisdiction allowed for Ps joined under Rule 20, where the joined party did not meet amount in controversy and claim arises out of common nucleus of operative facts

viii. Meritcare: supplemental jurisdiction NOT allowed for parties joined under Rule 20, where joined party did not meet amount in controversy: Court looked at legislative intent which intended NOT to allow joinder under Rule 20.

f. REMOVAL: 28 USC §1441(a): D can only remove an action that could have originally been brought by P in the federal courts.

i. Only Ds may remove (P cannot even if D brings counterclaim); all Ds must join in removal

ii. If SMJ solely based on diversity: no removal if any Ds reside in state where suit is brought

iii. If SMJ solely based on federal question: D(s) may remove

iv. If there is a state-law claim, which lack an independent basis for jx, it may be removed if the state-law claims meet supplemental jx test (28 USC §1367)

v. Procedure for removal = 28 USC §1446

1. D must file notice of removal (containing short and plain statement of grounds for removal and signed under Rule 11), send copies to the other parties AND the state court

2. Removal must be done within 30 days of complaint or amended complaint which is removable

3. Removal on the grounds of diversity is not allowed more than one year from the commencement of the action

vi. After case removed, federal court can REMAND:

1. If federal court determines that removal was improper b/c of lack of SMJ

2. Any or all supplemental claims (even if properly removed) if condition of §1367(c) is satisfied

vii. Caterpillar: finality, efficiency, economy (Court had allowed removal w/o complete diversity, in anticipation of a non-diverse party settling out—but diversity was satisfied at the time judgment was entered)

II. PERSONAL JURISDICTION: involves the ability of a court, having SMJ, to exercise power over a particular defendant or item of property

a. Pennoyer v. Neff (1877): physical presence and service of process in the forum state. “Full faith and credit” clause: each state much respect the valid judgment of another state and throughout the US.

b. LIMITATIONS on PJ: state statutes and US Constitution: exercise of PJ must not exceed the limitations of either source (see chart)

i. In order for PJ to be valid, it must be both constitutionally and statutorily authorized. CA’s long-arm statute is very broad, as it provides statutory authorization for PJ as long as the exercise of jx would not violate the due process clause of the 14th Amendment. Therefore analyzing whether there is statutory authorization becomes an analysis of whether jx violates due process.

Due process, according to ISC, requires minimum contacts by the D with the forum state. Minimum contacts are measured by purposeful availment and reasonableness.

c. 3 types of PJ:

i. In personam: exists when the forum has power over the person of a particular D. Court is exercising jurisdiction over D through service of process. Process consists of copy of complaint and a summons (court order directing person to appear in person). In personam jx permits a court to enter a judgment that is personally binding on defendant.

ii. In rem: court exercises jurisdiction directly against the property involved by attaching the property at the outset of the case. This is accomplished by posting notices on the property and on title records. (Constructive notice). Used when one wanted to decide the ownership of property when one could not acquire in personam jurisdiction over a defendant claiming title.

iii. Quasi in rem: court exercises jurisdiction by attaching the property within the jurisdiction belonging to the defendant in order to satisfy any monetary judgment that might be issued. Used to obtain jurisdiction over a defendant and enforcing any resulting judgment.

1. 2 types:

a. Dispute arises from property

b. Underlying dispute is unrelated to property attached

d. ISC (1945): Minimum contacts [systematic and continuous / purposeful avail.] such that the suit does not offend “traditional notions of fair play and substantial justice” [reasonableness]

i. Definition: to have general jurisdiction, there must be systematic and continuous contact (see chart) that is reasonable

ii. Territorial theory of jurisdiction: service of publication is allowed:

1. Status: Marriage and divorce

2. Implied consent (corporations): as a condition to doing business in the state, corporations appoint an agent to receive service of process. If there is no agent, then you can publicize.

3. In rem: after property has been attached, service by publication is okay, b/c court assumes owner has constructive notice

[GENERAL JURISDICTION] [SPECIFIC JURISDICTION]

|Contacts |Continuous and Systematic |Single and Isolated |

|Suits related/arises out of contacts |YES |MAYBE (PROBABLY) |

|Suits unrelated to contacts |MAYBE (ex: GM being sued in MI, where principal |NO |

| |place of business is) | |

4. Long-Arm Statute (way of exercising jurisdiction over a person in a different state) requires:

a. Statutory authorization: consider whether the applicable long-arm statute authorizes the court to exercise jurisdiction

b. Constitutional power: consider whether it would be constitutional under the minimum contacts test for the court to exercise jurisdiction on the fact given (must follow 14th Amend’s due process clause)

[Assume that ALL states have long-arm statutes like CA-full const reach]

5. Shaffer v. Heitner (1977): all assertions of jurisdiction must be evaluated “according to ISC and its progeny”; in order to attach property, there must be minimum contacts. Action must arise out of the property that is being attached; eliminates quasi in rem.

a. Only time when attachment (probably) allowed w/o minimum contacts:

i. Dispute over land ownership

ii. Tort on land

b. Scalia disagrees

III. SPECIFIC JURISDICTION

i. McGee (1957): single act: one contact (mailing insurance premiums to CA) is sufficient for CA’s in personam jx, if suit arises from the contact;

ii. Hanson v. Denckla (1958): refines “minimum contacts”

1. Unilateral activity of moving to FL does NOT satisfy the requirement of “contact”

2. “There must be some act by which D purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.”

iii. WWV v. Woodson (1980): Residents of NY bought an Audi in NY. While moving/driving to AZ they got into an accident in OK.

“I’ll take you out to dinner, but I won’t take you home”

WHEN DETERMINING SPECIFIC PERSONAL JURISDICTION

|1st: Determine minimum contacts threshold: |2nd Reasonableness: Do minimum contacts offend fair play and substantial |

|Minimum Contacts |justice? |

|Purposeful Availment | |

| | |

|Minimum Contacts |5 factor test: |

|Quantity and nature of D’s contacts with forum |Burden on nonresident D: inconvenience of forum (travel + cost, location of|

|Connection of contacts w/ c/a |witnesses) |

|Purposeful Availment |Forum state’s interest in adjudicating dispute (if injury occurred in |

|Did D purposefully avail of privilege of conducting activities within the|state, state’s interest in enforcing its own laws) |

|forum state, thus invoking the benefits and protections of its law?*** |Ps interest in obtaining convenient and effective relief |

|Purposeful avail includes: foreseeing being haled into court, benefiting |Interstate judicial system’s interest in obtaining the most efficient |

|from laws, products in the stream of commerce |resolution of controversies |

|***If no minimum contacts, then no jurisdiction. |Shared interest of several states in furthering substantive social policies|

iv. Asahi (1987): There is no PJ over Asahi, based on the reasonableness standard of ISC, forbidding PJ where it would offend “trad’l notions of fair play and substantial justice.” Court disagrees on minimum contacts/purposeful availment standard.

|O’Connor +3 |Stevens |Brennan +3 |

|Asahi did not purposefully avail itself of the CA |Did not want to decide on availment, minimum |Found purposeful availment through insertion of|

|market-no MC |contact test is not needed |product into stream of commerce |

|Awareness that product is in stream of commerce is | |But jurisdiction unreasonable |

|not enough for MC-must be purposefully directed to |Just use reasonable 5-factor test | |

|state | | |

|O’Connor’s test for purposeful direction/availment: | | |

|Advertising in forum | | |

|Customer service in forum | | |

|Designing the product for market (in CA) | | |

|Marketing through distribution agreement with sales | | |

|agent to forum state | | |

ALL AGREED: jurisdiction would be unreasonable and unfair considering:

• Heavy burden placed on D: Asahi had HQ in Japan and would have to travel and submit to foreign nation’s judicial system

• Internat’l context: would Japanese or Taiwanese law apply?

• Slight interest of P: Cheng Shin has not demonstrated that it is more convenient for it to litigate in CA rather than Taiwan or Japan

• Slight interest of forum state: Zurcher is out of the suit

v. Burger King Corp (1985):

a. Does a K establish minimum contacts (yes):

i. Prior negotiations: initiated w/ district office, but also dealt with FL office

ii. Contemplated future consequences: 20-yr relationship that will be subject to dealing with FL corporation, not one-time deal

iii. Terms of the contract: purposeful availment of FL law (from K terms)

iv. Each parties’ course of dealing: (did R go to FL?)

b. Why type of K will NOT satisfy jx? (case-by-case)…ex: out-of-state consumers to collect payments on modest personal purchases

c. Applied 5-factor reasonableness test: and found reasonableness

d. Federal court in FL uses Rule 4(k)(1)(a)—federal long-arm statute-- to assert its jurisdiction over D

| |PJ / Notice |PJ / Notice |

| |Statutory authorization / Service |Constitutional power / Due Process |

|State |State Long-Arm Statute |14th Amendment |

|Federal |4(k)(1)(a): fed courts limited to jurisdiction |14th Amendment |

| |of the state | |

| | | |

| |4(k) |5th Amendment: minimum contacts with the nation |

| | |as a whole |

IV. GENERAL JURISDICTION

a. Ds can be subject to jurisdiction for all claims, even those w/o any connection to the forum state where:

i. Corporation: state of incorporation and state that is the principal place of business

ii. Individuals: state of domicile

vi. Washington Equipment v. Concrete Placing Co. (1997): State corporation does not consent to general jurisdiction by doing an act required by the state to do business there (i.e. obtaining a certificate to do business and appointing an agent in order to do business there)

i. Unless there is a statute that says registering is enough for general jx

vii. Helicopteros (1984):

ii. Helicol’s contacts with TX were insufficient (not continuous and systematic) for general jurisdiction; “mere purchases,” even if occurring on a regular basis, are not enough

iii. Dissent (Brennan): Specific jurisdiction should be expanded to include suits that both arise out of OR are related to the contacts between D and forum

viii. Determining PJ:

a. First, look at C/A to determine if suit arises out of D’s contacts in the state

i. YES (then specific jurisdiction

ii. NO ( see if D subject to general jurix-continuous and systematic

V. TRANSIENT JURISDICTION: physical presence at the time of personal service

a. Burnham v. Superior Court (1990)

i. Issue: Does the 14th amendment’s due process clause allow CA court jurisdiction over a non-resident, who was personally served with process while temporarily in that state, in a suit unrelated to his activities in the state?

ii. Hold: Yes, if a person is served in a forum state, then there is jurisdiction (but Court does not agree on rationale)

b. Judicial Analysis

|Scalia +3 = 4 |Stevens, concurring |Brennan +3 = 4 Concurring |

|Transient jx is always proper b/c it has |Transient jurisdiction is unnecessarily broad |Transient jx is generally proper, but jx must be|

|historically been so. | |judged by the “fairness” prong of ISC (whether |

| | |jx comports with trad’l notions of fair play and|

|Interpreting Shaffer to mean ISC applies only to| |substantial justice) |

|quasi in rem: | | |

| | |Interpreting Shaffer to mean all assertions of |

|Originalism/historical: when the 14th Amendment | |state jurisdiction must comport with ISC and |

|was adopted, the implication was that transient | |progeny: |

|service was allowed under the 14th, therefore it| | |

|is still allowed today under notions of “fair | |Reasonableness / Fair play and substantial |

|play and substantial justice” | |justice: D availed himself of emergency |

| | |services, highways, etc. Also, transient person|

|Change should come from the states, legislation | |has right to be a P, so must not have immunity |

|and courts—bottom up change | |from being D |

| | |( therefore jurisdiction |

VI. JURISDICTION BY CONSENT

a. Voluntary Appearance

b. Express Consent

i. Forum Selection Clause

1. Carnival Cruise Lines v. Shute (1991)

2. Issue: Did Ps consent to jurisdiction by a forum-selection clause in an adhesion contract?

3. Holding: Yes, forum-selection clause should be enforced if it is reasonable (see below).

a. In general, forum-selection clauses are reasonable given the nature of industry and the good faith of the provision

4. Contract issue: Yes, there was a contract formed: the ticket was refundable and Ps were given notice that forum-selection clause was part of the terms and conditions

5. Forum-selection clause issue: Reasonable for Carnival to litigate in FL:

a. Principal place of business in Miami: limits fora where Carnival may be sued

b. Not Carnival’s intent to defraud

c. Judicial economy & benefit of certainty

d. Passengers will save money on their tickets from Carnival’s savings

ii. Registered Agent

iii. Attorney General

c. Implied Consent

i. Counterclaim

ii. Non-resident motorist statute

VII. CHALLENGING JURISDICTION

a. MUST challenge PJ at the outset, SMJ can always be raised

b. Strategies:

i. Direct attack:

1. File 12(b) in preanswer motion OR answer

ii. Collateral attack: Do not show up and attack jurisdiction when judgment tries to be enforced using Full Faith and Credit clause

1. Risky: cannot later contest the merits of the case

iii. Special Appearance: “I’m not here”: am only here for purposes of contesting jurisdiction

c. Waiver:

i. Failure to do any of the above means waiver of challenging jurisdiction

d. SMJ is raised by the court sua sponte

VIII. NOTICE

a. Mullane v. Hanover (1950):

i. Issue: Is service by publication sufficient notice for beneficiaries of a trust?

ii. Holding: The service of process must not be substantially less likely to work than other modes of service

b. In person = always acceptable

c. By mail with a waiver form (to waive personal service)= allowed under Rule 4 (constitutional minimum)

i. If waived within 30 days, then allowed 60 days to make answer (carrot)

ii. If not waived, then must pay costs of service (stick)

1. Person must be served in person

d. By publication = allowed:

i. When it’s a supplement to some other notice (such as attachment)

ii. When it’s not reasonably possible or practicable to give more adequate warning (where Ds unknown and cannot be reasonably located)

IX. VENUE (proper district in which to bring the action)

| |Federal Courts |State Courts |

|Venue and Transfer |Districts |Counties |

|Forum non conveniens |Foreign country |Other state or foreign country |

|Statutes Authorizing Venue |Title 28 sec 1391 |States have own statutes |

|Transfer |§ 1631: for jurisdiction | |

| |§ 1406: for venue transfer if venue is | |

| |improper—apply transferee court law | |

| |§1404: transfer to another venue where | |

| |suit could have been brought | |

| |(convenience, tainted jury pool)—apply | |

| |transferor court law | |

|Choice of law |See Handout |See Handout |

|Service |Rule 4 |State Long-Arm Statute |

|Due Process |5th Amendment |14th Amendment |

SMJ ( PJ ( Service ( Venue

i. BASIS FOR FEDERAL VENUE: sec 1391

a. Diversity

i. Sec1391(a1): Venue is proper in any district where any Ds reside, as long as they reside in the same state

ii. Sec1391(a2): Venue is proper where a substantial part of the events or omissions giving rise to the claim occurred

iii. Sec1391(a3): [if neither a1, nor a2 applies…then] Venue is proper in a district in which any D is subject to PJ

b. Federal Question

i. SEE SECTION A (same, but this applies to Federal Questions)

ii. SEE SECTION A (same, but this applies to Federal Questions)

iii. Sec1391(b3): [if neither b1, nor b2 applies…then] Venue is proper where any D may be found

c. Corporations

i. Corporations are residents of any judicial district in which they are subject to PJ

d. Alien may be sued in any district

ii. Dee-K Enterprises, Inc. v. Heavefil (1997)

| |Federal |State |

|Service |Rule 4(k)(1)(a) |Long-arm |

|Due Process |5th Amendment |14th Amendment |

• If rely on 4k1a, then look to state’s long-arm and 14th Amendment

• If not relying on 4k1a, , then look to 5th Amendment (to establish if D has contacts with the nation as a whole)

a. Issue: In an antitrust action, did the Eastern District of VA have both PJ and proper venue over an Indonesian company and the other American Ds?

b. Holding: There is PJ over Ds, but proper venue is uncertain, b/c Ps have shown VA contacts, which some Ds allege are in the Western District.

X. TRANSFER AND FORUM NON CONVENIENS: an appropriate forum, even though competent under the law, may divest itself of jurisdiction if for the convenience of the litigants and witnesses it appears that the action should proceed in another forum in which the action might ordinarily have been brought. (affects both state and federal courts)

a. 3 types of transfer

i. §1404: Transfer of venue for convenience

1. Apply law of transferor court

2. If other forum is foreign country/different state, then action dismissed

ii. §1406: Transfer for improper venue

1. Apply law of transferee court

iii. FNC

1. FNC provides for dismissal of the action when venue is inconvenient. Mainly used in state courts where there is no right to transfer a case from one state to another.

2. SEE VENUE CHART

b. § 1631: Dismissal if J is improper

c. Piper Aircraft v. Reyno

i. Issue: Does the possibility of an unfavorable change in the law from the Scottish Ps’ perspective bar dismissal by FNC where the Ps were seeking beneficial CA tort law which allows strict liability?

ii. Holding: No, merely showing that the substantive law in another forum is less advantageous to the P does not bar dismissal under FNC

1. FNC will become useless if we consider change of law b/c P always has initial choice of forum—always will choose most favorable forum for P—if you could deny it on those grounds, then you would never be able to use FNC

2.

|Private Interest Factors for FNC and §1404 |Public Interest Factors for FNC and §1404 |

|Access to sources of documentary proof |Court congestion |

|Availability / costs of witnesses |Local interest in local controversies |

|View of premises (if necess-this rarely makes a difference) |Applicable law / conflict of laws: have trial where court is familiar w/ |

|Other practical considerations |applicable law |

| |Unfairness of burdening local citizens with jury duty |

• There must be another proper venue available, and the remedy provided by the alternate forum must not be so clearly inadequate that it is no remedy at all

• Generally there is a strong presumption for Ps choice of forum, UNLESS the Ps are foreign b/c they are clearly not suing in the forum for convenience-forum shopping

XI. ERIE DOCTRINE

a. Swift v. Tyson (1841)

i. Issue: Does state law or federal law apply to a diversity action in federal court?

ii. Hold: State precedents (CL) were not “laws,” so federal courts were free to ignore them (courts would follow state statutes)

iii. Swift allowed federal courts to ignore state law even when sitting in cases that were not explicitly governed by federal law

iv. Reconsider Swift:

1. New scholarship suggests that old interpretation was erroneous

2. Failed to achieve national uniformity: different outcomes in state vs. federal court, no equality of treatment

3. Unconstitutional assumption of power

b. Erie v. Tompkins Railroad (1938):

i. ERIE DOCTRINE: Federal courts in diversity must apply state common law as well as state statutory law in diversity actions. [Federal courts must apply state substantive rules of law (except when deciding federal questions) and federal procedural law.]

1. There is no federal general CL:

2. Reed concurrence: Case should have been decided on statutory grounds (that Swift misconstrued sec 34 of 1789 Judiciary Act / Rules of Decision Act) rather than on constitutional grounds. Not sure that federal courts are constitutionally compelled to follow state decisions in the absence of federal statutory direction.

a. Article 1, sec 8: Necessary and proper clause

b. Article 3, sec 1: Judiciary Act

i. Both allow Congress the power to pass procedural rules for federal courts

c. Guaranty Trust Co. v. York (1945): EXPANDING ERIE (state rules win)

i. How to determine what is substantive vs. procedural?

1. If have to apply state law in federal court to get the same result, then it’s substantive

2. If you don’t have to apply state law in federal court to get same result, then it’s procedural

ii. Outcome-determinative test: In diversity cases, if the outcome of the suit in federal court would be substantially different than if it were tried in state court, then state law must apply.

d. Byrd v. Blue Ridge Rural Electric Cooperative (1958): CONTRACTING ERIE (fed rules win)

i. In a federal diversity matter, where there is a countervailing federal interest, the federal court need not yield to the state procedural rule, where P wanted trial by jury in workman’s comp case.

ii. Interest-balancing approach / Strong-federal-policy test:

1. Is the state rule bound up with state substantive rights and obligations? (no, merely housekeeping: Brennan minimizes state interest)

2. Any countervailing federal considerations?

a. Federal uniformity

b. Constitutional requirements (7th Amendment: judge vs. jury issue)

3. Balancing state considerations?

e. Hanna v. Plumer (1965)

i. A federal district court sitting in diversity must follow the Federal Rules in lieu of conflicting state law when to do so would affect the outcome of the case.

ii. SEE CHART: Is federal statute broad enough?

f. Burlington Northern Railroad v. Woods (1987)

i. Governing federal rule of appellate procedure controls over contrary state statute, where following unsuccessful party’s losing of appeal in federal diversity case, successful party sought mandatory penalty under state statute, but a federal appellate rule provided for discretionary penalty upon finding appeal was frivolous.

g. Stewart Organization, Inc. v. Ricoh (1988)

i. A federal rule, established within the limits of the constitution, prevails over conflicting state law provided the federal rule is sufficiently broad enough to cover the issue.

h. Gasperini v. Center for Humanities, Inc. (1996)

i. A state statute governing reexamination of jury awards can be given effect by federal appellate courts w/o violating the 7th Amendment’s reexamination clause.

ii. Certification procedures: State statute that allows federal court to ask state supreme court to rule on an issue. State supreme court has discretion to answer.

CLUE to use Erie analysis: state law wanted to be used in fed’l court

THE ERIE PROBLEM: Diversity cases

The Erie Doctrine—the substantive law to be applied in any diversity case is the law of the state in which the federal court sits, except in matters governed by the US Constitution or by acts of Congress. Federal Courts apply their own rules of procedure, but the substantive law of the state must be applied.

Hanna v. Plummer shifted the way federal courts approached this issue from a substantive versus procedural analysis. [Below is the chart of the new approach]

|Question #1: IS THERE A FEDERAL RULE OR STATUTE THAT IS BROAD ENOUGH TO CONTROL THE ISSUE BEFORE THE COURT? |

|YES NO |

| | |

|Is the rule / statute Constitutional? |Would applying a federal standard (federal CL/precedent) violate the twin policies|

|(Must be w/in Congressional grant of federal power: art3sec1: |of Erie? Party seeking to apply new fed.CL would have to research and predict |

|Congress has power to create lower federal courts and under |what that new specific fed.CL would be. |

|necessary and property clause art1sec8, Congress has power to |Would it encourage forum-shopping? Is the difference between the state rule and |

|prescribe federal rules for those courts) |the proposed federal standard so substantial that it would influence the parties’ |

|i.e. Is it rationally capable of classification as either: |initial choice of forum? |

|YES: Procedural—judicial process for enforcing rights and duties |Would it lead to inequitable administration of laws? Is the difference between |

|recognized by substantive law and for justly administering remedy|the state rule and the proposed federal standard so substantial that it would |

|and redress for disregard or infraction of them |unfairly discriminate against citizens of the forum state? |

|NO: Substantive—rules that would substantially affect those | |

|primary decisions respecting human conduct: how people behave |If No to both—Federal standard or rule prevails |

|outside the courtroom (state contract law, state tort law, etc) |If Yes to either—See [pic] |

| | |

|If Substantive—State standard or rule prevails |(Almost always Yes) |

|If Procedural—See [pic] | |

| | |

|(Almost always Procedural) | |

| | |

|Does rule (not statute) violate the Rules Enabling Act? Does rule|Apply the Byrd Balancing Test: |

|abridge, enlarge, or modify a substantive right? |Is the state rule bound up with the rights and obligations of the parties? How |

|If the rule relates to the judicial process and does not |important is the state rule to the underlying state right? |

|substantially alter state rules intended to affect the parties’ |Are there federal interests in applying the federal standard or rule? |

|conduct outside of court it will not violate the REA. |There will always be the interest of federal court efficiency in following federal|

|If Yes—State standard or rule prevails |law |

| |7th Amendment: Jury trial (Byrd Blue Ridge) |

|If No—See |Balance between the state rule and the countervailing federal interests |

| | |

|(Almost always No) |(State rule almost always wins) |

| | |

|FEDERAL RULE APPLIES |STATE RULE APPLIES |

|If the Federal Rule is Constitutional and it doesn’t violate the | |

|Rules Enabling Act, the Federal Rule MUST be applied under the | |

|Supremacy Clause (Art. VI) | |

| | |

XII. PLEADING

a. Introduction

i. Two types of pleading:

1. Notice: a short and plain statement of jx and claim for which pleader is entitled to relief (Federal)

a. A complaint must say enough to tell the defendant why he is being sued even though it need not describe every last detail.

b. Must give the defendant sufficient notice of the case against him to enable him to prepare defense

2. Code: a statement of the facts constituting the cause of action, in ordinary and concise language (CA, NY—though most state courts adopt a liberal approach for pleading), pleading must state a claim under the code

ii. Purposes of pleading (today only #1-#2 dominate)

1. Give notice of the nature of the claim

2. State the relevant facts

3. Narrow the issues to be addressed at later stages of the litigation process

4. Serve as guides for later discovery and trial

5. Expose insubstantial claims

6. Separate disputes over the facts from disputes over the law

iii. Burdens:

1. Pleading

a. P has the initial burden of pleading (complaint)

b. once P fulfills his proof of burden, it shifts to D (answer)

c. D may motion for demurrer or FRCP 12(b)(6)

d. if P sustains that, then the case moves on to discovery

2. Production (not on exam)

a. P has the nitial burden to provide sufficient evidence to meet case in chief

b. Once P puts on their case, then burden shifts to D to meet affirmative defense

3. Persuasion (exist throughout trial)

a. in criminal trials the prosecution has to prove its charges beyond a reasonable doubt

b. in civil cases, P must prove their allegations by a preponderance of the evidence

c. in some special proceedings, an intermediate standard is applied –clear and convincing evidence (like patents)

iv. Rule 7(b): Motions shall be made in writing, shall “state with particularity” the grounds, and shall “set forth the relief sought,” and must be signed by filing party

b. The Complaint

i. 8(a): General Rules of Pleading (Complaint)

1. (1)a short and plain statement of the grounds upon which the court’s jurisdiction depends;

2. (2) a short and plain statement of the claim showing that pleader is entitled to relief;

3. (3) a demand for judgment for the relief that pleader seeks

ii. 8(e)(2): A party may set forth in a pleading two or more statements of a claim alternately or hypothetically

iii. 12(b)(6): Dismissal for failure to state a claim upon which relief can be granted

1. complaint does not meet FRCP 8(a)

2. courts will usually give P’s an opportunity to amend the pleadings

Haddle v. Garrison

Rule: The facts and law set forth in a complaint must constitute a viable cause of action; a complaint may be dismissed only if there is not a set of facts in support of the plaintiff’s claims that would entitle him to relief (Dismissed under 12(b)(6))

Holding: Firing an at will employee causes injury because it is an interference with employment relationship which is a tort under state law where an at will employee was fired for cooperating with the federal criminal investigation of his employer

iv. Rule 9(b): Heightened Pleading

1. Only applies to fraud or mistake

a. Policy Reasons

i. In order for a defendant to defend themselves they would need more specific facts about the fraud

ii. Want a higher requirement before someone can call someone else a “liar”—stain on someone’s reputation

iii. Punitive damages might be available if fraud can be proved

iv. Time consuming to defend

v. Trying to prevent insubstantial claims from proceeding to discovery

2. Must be plead w/particularity

3. Malice, intent, knowledge, and conditions of the mind may be pleaded generally

Erie question: if state rules have lesser requirements that FRCP 9(b)—state rule allows plaintiff to get to discovery—could be thought of as a substantive right

Olson v. Pratt & Whitney Aircraft

Rule: FRCP 9(b) requires that when a complaint charge is fraud it must 1) detail the statements that plaintiff contends are fraudulent 2) identify the speaker 3) state where and when the statements were made and 4) explain why the statements are fraudulent.

Holding: Olsen’s fraud allegations do not comply with the heightened pleading requirements of Rule 9(b) where Olson was fired after his employer asked him to drop his participation from the early retirement plan.

Leatherman v. Tarrant County

Rule: Since Rule 9(b) expressly indicates heightened pleading, the absence of this expression elsewhere indicated that Congress assumed and intended for FRCP 8(a) to apply to all other causes of action

Holding: Expressio unius est exclusion alterius. All things not mentioned Rule 9(b) do not have a heightened pleading requirement where two home owners sued the municipalities whose police officers entered and searched their houses for weed in violation of the Constitution (42 U.S.C. §1983)

c. Substantiality of Claims and Defenses

i. Rule 11(a) requires a signature by at least one attorney, or by the party if not represented by an attorney

ii. 11(b) says that such a signature is a certification that to the best of the signer’s knowledge, everything is true, and that he has made a reasonable inquiry into their factual basis.

Business Guides v. Chromatic Comm. Enter.

Rule: The allegations and other factual contentions must have evidentiary support or are likely to have evidentiary support in discovery.

Holding: Since Business Guides failed to conduct a proper inquiry into the validity of the claims they presented unreasonable and false information when they alleged that Chromatic had infringed by using their false seeds in their directory.

Holding: A represented party may be sanctioned in addition to or instead of its attorney for violating the Rule 11 requirement that all information in signed documents submitted to the court be reasonably accurate—there is a continuing duty of attorneys to investigate

iii. 11(b)(ii) the claims defenses and other legal contentions there-in are warranted by existing or by a non-frivolous argument.

iv. 11(c) allows the court to enforce sanctions for violation of 11(b)—“Motion for Sanctions”

1. 11(c)(1) provides for a 21-day safe harbor period after the service of a motion for sanctions where P may withdraw the contended pleading or claim

2. if the case is dismissed of adjudicated prior to the 21 days, then sanctions cannot be levied against P

3. Section 1927 allows Court to punish P by compensating for attorney’s fees

4. 11(c)(2) a sanction imposed for violation of Rule 11 must be limited to what is sufficient to deter repetition of such conduct

a. Can sanction the signer, law firm, partners, co counsel, but not clients

Religious Technology Center v. Gerbode

Rule: Lawyers have a duty to make sure that claims are not frivolous—that their client’s claims are well grounded in the law before continuing to press the claim.

Holding: Under Rule 11 the court has discretion to award attorney’s fees or to impose other sanctions in order to deter parties from filing merit less lawsuits where Gerbode brought a Rule 11 motion for sanctions against the holy rollers for filing a frivolous lawsuit. Court imposed sanctions because there was a long history of acrimonious history of litigation.

v. Rule 11 violations occur most frequently where an attorney ignores a precedent case due to sloppy research

d. Pre-Answer Motions FRCP Rule 12—Motions to dismiss

i. 12(a)(1): Timing: must be filed within 20 days after being served or if service of process is waived, then 60 days

1. 4(d)(2)(f): P must allow at least 30 days from the date the request was sent for D to return the waiver.

ii. 12(b)

1. Lack of SMJ

2. Lack PJ

3. Improper venue

4. Insufficiency of process

5. Insufficiency of service of process under Rule 4

6. Failure to state a claim upon which relief can be granted (no c/a)--is about legal insufficiency, not factual insufficiency

7. Failure to join a party under Rule 19

iii. 12(c): Motion for Judgment on the Pleadings: made after pleadings, but before trial

iv. 12(e) Motion for more definite statement—when P’s pleading is so vague or ambiguous D cannot make a responsive pleading.

v. 12(f): Motion to Strike: Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter within 20 days of service.

vi. 12(g): If a defense (#s 2-5) is not raised in a pre-answer motion or answer (if there is no pre-answer motion), then it is waived

vii. 12(h)(2): Defense 1 is never waived, Defenses 6, 7 can be raised in any pleading or motion until trial

e. The Answer: Must contain denials or admissions, any affirmative defenses, and compulsory counterclaims

i. D must answer w/in 20 days after service (12a1a), OR

1. D who waived formal service has 60 days after request for waiver was mailed to him (12a1b)

2. If a Rule 12 motion is made and the court does not fix another time, answer must be served w/in 10 days of court’s denial or postponement of the motion (12a4)

ii. If a counterclaim arises out of the same transaction or occurrence as one of the P’s claims, it is compulsory and must be pleaded or will be barred

iii. 8(b) Forms of denial to paragraphs or complaint

1. Admit

2. Deny

a. May deny generally to whole complaint or to specific paragraphs

b. General denial is discouraged and can be used only if everything in the complaint can be denied

c. Failure to deny constitutes an admission

3. Claim lack of information to form a belief (considered a denial) (same as 12(e))

Zielinski v. Philadelphia Peirs

Holding: A general denial will not be valid if any of the allegations being denied have been admitted by both parties as true where a man who was hit by a forklift claimed that it was owned by PPI which never specifically denied ownership until trial.

iv. 8(c) –D shall list all affirmative defenses in his pre-trial answer (See 8(c) for list of enumerated affirmative defenses that must be brought up in an answer before the trial)

1. If D tries to introduce a new affirmative defense at trial, P may motion to exclude (purpose is to prevent unfair surprise)—avoidance???

Layman v. Southwestern Bell Tel. Co

Holding: An easement is an affirmative defense to trespass and as such must be set forth in the answer, or evidence will not be allowed at trial where a property owner sued the phone company for trespass after it buried some phone wires under her property.

v. 8(d) a failure to deny = an admission for purposes of pleading

f. Amended and Supplemental Pleadings—Rule 15

i. Differences

1. Amended Pleadings—issues raised before trial [change aspects]

2. Supplemental pleadings—issues raised after pleadings have been made

ii. FRCP 15(a)—a party may amend their pleading

1. Once as a matter of course before an answer is served or

2. Within 20 days after service of pleading to which no responsive pleading is permitted provided that the lawsuit has not been set for trial

3. Otherwise they must obtain leave of court, or written consent of adverse party and leave shall be freely given if justice so requires.

a. Factors court considers when denying amendments to pleadings (Rule 15(A):

i. Undue delay—usually not enough; often combined with undue prejudice

ii. Bad-faith or dilatory motive

iii. Repeated failures to cure—deficiencies by previous amendments

iv. Undue prejudice to opposing party

v. Futility of amendment

Beeck v. Aguaslide

Holding: A court does not abuse its discretion by allowing an amendment to an answer which initially admitted responsibility for the manufacture of the product at issue but now seeks to deny manufacturing it where defendant admits manufacturing the defective waterslide at issue in the case but a year later moves the court to amend the answer to deny manufacture.

iii. FRCP 15(b)—If new evidence is raised at trial to a new issue and opposing party does not object it shall be treated as if it had been pleaded (Harmless Error Standard)

1. For new evidence brought up in discovery or trial

2. Do NOT have to amend pleadings for new facts, unless they address a new issue

3. Point is to allow evidence that don’t cause surprise

iv. 15(c)—Relation Back—sole purpose is to solve SOL problems

• If amendment relates back to an original claim then it is allowable

1. 15(c)(2) Allowed if the amended claim arose out of the same conduct, transaction, or occurrence set forth in the original pleading

2. 15(c)(3) Complaint states the wrong defendant, incorrect name, or adds a new defendant— allowed to amend 120 days after the complaint is filed

a. Party of amendment has received notice of the action (i.e., pleading lists wrong name, but served correct party)

i. And knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him (i.e., P served the wrong party)

Moore v. Baker

Holding: In order to relate back to the time of the original complaint (under 15(c)) a proposed amendment must have its basis in the same facts that are alleged in the original complaint where a patient who was disabled after an operation sued the doctor for violation of informed consent and later tried to amend the complaint to include allegations of negligence

Policy: Informed consent did not put the defendant on notice for a negligence claim and the motion came up after discovery

Bonerb v. Caron

Holding: A claim will relate back if the operational facts set out the original complaint are sufficient to put the defendant on notice that the amended claim could be brought where a patient originally sued a rehab center for negligent maintenance of its basketball court and later tried to amend the complaint to include a claim for counseling malpractice. P’s amended claims must arise out of common nucleus of fact [Gibbs].

Policy: Motion came up before discovery, parties hadn’t taken depositions or exchanged expert testimony

v. FRCP 15(d)—Amendments due to new events and conduct that occurred since the initial pleading

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