Civil Procedure



Civil Procedure

Monday 6/19/02

Pg 1-15 71-75

Briefing for civ. Pro.

Name

Identify court

Date

Pertinent facts

Legal Issues presented by the facts

Courts Decision (Holding)

Reasoning

Reasons supporting dissenting opinion

No tests on anything not lectured on in class

Subject matter jurisdiction: whether a court can hear a particular type of dispute.

Gordon V. Steele (Usdc western district of PA) 1974

Facts

Susan gordon (P) fractured her wrist on Feb. 25 1972 and there was a wrongful diagnosis as to the presence of fractures by the d (two physicians and an osteopathic hospital). She had continued pain and hospitilization b/c of the misdiagnosis. She filed a diversity suit b/c she was a student in Idaho at the time of the accident (which happened in pa. Where she grew up and her parents are residents) .

Procedural History

Pennsylvania legislature ruled that people 18 yrs. Were considered adults and could enter into contracts etc. on june 16th, 1972.

Plaintiff filed a diversity suit

D moved for dismissall as a result of lack of diversity

Court delayed decision and the matter is now before the court for disposition

Issue

Is the P a citizen of idaho which allows this to be an appropriate diversity suit?

Holding

She is a citizen of idaho and the motion to dismiss is denied

Reasoning

One domiciled in a state when a suit is begun is a citizen of that state within the meaning of the constitution article 3 sect. 2. (citizenship on the date she files the lawsuit)

“in determining wether a party has intended to establish a domicle in that state to which he has moved, the fact finder will look at such circumstnaces as his declarations, exercise of political rights, payment of personal taxes, house of residence, and place of business”(have to establish residency) Wright, federal courts section 26. Possibility of eventually going elsewhere does not defeat acquisition of a new domicile.

Wednesday 8/21

Procedure is the lawyer’s tool (the language) by which he relates to the court & other lawyers. It is the law for lawyers.

Writs and courts of equity were the system in old england. Decisions in courts of equity became precedent and eventually developed into the common law of england which we inherited from them.

Judges were known as chancellors of equity

1849 NY adopted a code of civil procedure

-merged law and equity into one action

-abolished writ system

-simplified procedure in civil cases

rule 82: these rules shall not be construed to extend the limit of federel courts. Rules can’t create jurisdiction. Courts are limit by the rules of the sovereign

Courts of General Jurisdiction:

Courts of Limited Jurisdiction:

Ie; federal, juvenile courts, domestic relations, divorce courts, etc.

Have to make sure that you file lawsuit in a court of appropriate subject matter jurisdiction.

Courts must also have jurisdiction over parties involved “personal jurisdiction” or “in personam”

When the plaintiff chooses a court he waives his rights and submits himself to the jurisdiction of the court. However, must have valid personal jd over the D. Usually he is notified by a summons. Court definitely doesn’t have jd just by issuing a summons.

Personal Jd: Can be conferred by the parties (you can submit yourself to the jd of the court even if they don’t have jd if you are willing to defend)

Subject Matter JD: Either it exist or it doesn’t. Parties Can’t confer it, either they have sm jd or they don’t. The power or authority of a court to decide a particular case. States get this power from the 10th amendment. Read 262, 10th amendment…(states have the right to create their own courts)

In rem JD: Based on property. JD over “the thing”

Substantive law: statutes and law of a state or jd

In some case fed. Has exclusive jd (in those cases state has no jd).

Friday notes 8/23/02

Most typical limitation of a state courts subject jd is monetary (either min or max.)

Subjec Matter JD cannot be conferred by the parties to the litigation nor can it be conferred to the court nor can the rules give jd. Either it exists or it doesn’t and if it doesn’t that court has no authority to rule on the case.

Fed. Court has very limited JD

Title 28

Different #’s explain diff/ jd.

Federal ? jd (when an issue arrives with a constitutional ? 13.31)

Must have more than $75,000 (13.32) & Diversity (citizens of different states)

13.33 any case of admiralty & maritime jd.

Congress creates the ability for the fed to use its power. Ie 13.31 etc

You have to object to personal jd immediately, otherwise you submit to personal JD.

State court has to render judgement against states own residents (historically speaking)

Concepts of sovereingty have yielded to necessity and convenience.

Monday 9/25

D must receive notice of proceedings against him.

Summons= official notice to the D that there are proceedings against him. It is also an order to come into court to take care of bus. Or a default judgement will be issued

When a summons is served D is technically “before the court” but it doesn’t mean the court has valid personal jd (he can still contest it)

Service on the D while in the presence of the forum state is the requirement of personal jd.

In rem= jd over property

Pennoyer notes: property had nothing to with neff’s debt to mitchell.

Each state has exclusive sovereighnty over persons and property tht are w/ in his borders

No state may exercise direct jd over persons & property outside its borders.

“every state owes representation to its citizens” & must have some power & authority over non-residents (especially if non-res violates rights of citizen of the forum state)

when personally served in state: a) foreign state now has authority over non-res.

b) non-res. Gets sufficient notice of proceedings against him

Historically it was thought that in rem jd only gave power over the property (and didn’t bind the person)

The law assumes that property is always in the possesion of its owner and by seizing it he will be appropriately notified (caretaker fixture)

Seizing land @ the beginning of a lawsuit accomplishe 2 things: 1)Court asserts power over property

2)Seizure gives defendant notice

(provides the same thing as personal service of process)

claim doesn’t have to be related to the property.

Default judgements can only be issued for the value of the land

However, if the D appears in court the court can assess the full value of damages,

“quasi-in rem”, using the property to get to the person….

2 principles of law from pennoyer:

1)personal jd over a non-res is best served by personal service of process

2)in rem or quasi in rem jd is obtained by attaching his property @ the beginning of the suit

supplement pg 259 articule 4

state courts have personal jd over non-residents D for causes of action which are directly related to the property (exception to personal JD)

transiet jd is when you get caught while physically present in the state.

Notions of sovereignty have been relaxed for means of convenience….

Wednesday 8/27 notes

3 ways to contest personal jd:

1) ignore the suit (will result in a default judgement)

2) file a motion contesting personal jd (rule 12.b)

3) make a “special appearance” to contest personal jd.

3 types of jd over persons or property

1) in personam (against an individual)

2) in rem (action against the property itself)

3) quasi-in rem (using the property to get to the person as a means to satisfying an unrelated personal claim)

If you have property worth 10g’s and a claim against you for 100g’s if you ignore the suit there will be a quasi-in-rem judgement against you for 10 g’s . If you submit to the quasi-in-rem jurisdiction and show up in court to contest the claim they get in personam jd over you and they can then get the full 100g’s.

constitution considerations & pennoyer:

Is state sovereignty for real?

constitution has developed limits to state sovereignty ex. article 4 section 1,article vi (this constitution shall be the supreme lasw of the land), due process has also limited the power of states. State court jd is firmly controlled by constitutional standards.

corporations don’t exist outside the law, states can mandate what corporations must do to do buisness in a state (Ie provide an agent for service of process in LA. back in the day)

Just doing buisness in a state is considered “presence”

presence = consent to jd ie; if you use the highways of a state

contacts w/ a state are all that is required for jd (moves away from pennoyer)

when dealing w/ corps. where were they incorporated? where is there primary place of buisness?

important law from international shoe; establishes dual tests for in personam jd. 1) minimum contacts of non resident corp. must be established

2) forum state must be a fair and reasonable one to be sued in.

Friday 8/30/02

in’tl shoe moves from absoulute soveign power to power based on minimum contacts.

Minimum contacts is the new rule @ this point.

Also, broad language of the decis. requires that courts will decide whether or not minimum contacts will be applied on a case by case basis.

1) Where the non-res. D hass conitinous and substant. contacts with forum state & his claim is related to those contacts. Makes it easy to get in personam here

2) Where you have casual or isolated contacts w/ an unreleated claim is very difficult to get in personam here.

3)Continous & substantial contacts w/ an unrelated claim to those contacts.

4) casual & isolated contacts w/ a related claim.

3 & 4 are more of grey areas however 3 is likely to be in personam

we can group these into 2 classifications:

General Jurisdiction: When a non-res D has substantial and continous contacts w/ forum state supports states jd even for claims unrelated to those contacts.

Ex: General Motors can have claims filed against it in MI. even if the issue happened elsewhere

& Specific Jurisdiction: Jd exists for the specific claim, but you don’t have general jd for unrelated claims. The more closely the contacts are related to the claim, the more likely the court is to establish jd.

An individual or corp. can be sued in a state even if he hasn’t consented to be sued there or provided an agent for service of process in that state.

Based on pennoyer, just doing bus. in a state was enough to establish presence. Int’l shoe collapsed that and mandated the minimum contacts scenario.

“Due process”

Pennoyer: Personal JD over persons and property in a state and NO jd over anything outside

1945 Shoe: Establishes minimum contacts

1977: Supreme court decided to alter the requirements for quasi-in rem jd. (shaeffer v. Heitner)

Shaefer is a stockholders derivative action,

This is not a suit against greyhound it is a suit against the officers and directors of greyhound (individuals)

None of the individuals had any contacts w/ DE.

The stock was never physically present in DE.

Delaware law states that they DID have jd over stock but that is overruled. This problem raises constitutional issues. Does Delawares law violate the due process clause of the 14th? P must prove actual minimum contacts w/ state of DE. irrespective of the DE. statute (b/c the D thinks the delaware statute is unconstitutional)

Where prop. is deemed to be w/in State. does prop owner still need min. contacts to have personal jd?

Court rules that jd over property is actually jd over a persons’ interest in the property and is thusly must meet minimum contacts clause.

From this point forward, no quasi-in rem jd unless there is enough minimum contacts to establish personal jd. Tosses quasi in rem jd out tha window!

Wednesday 9/4/02

minimum contacts were lacking and therefore court held that there was no JD in Shaefer v. Heitner. Court didn’t have quasi-in-rem JD unless there were minimum contacts. This decision in effect writes out quasi-in-rem JD.

Shaeffer overrules parts of Pennoyer but not all of the concepts of sovereignty.

Int’l shoes standards now apply to ALL assertions of state court JD.(quasi in-rem, in rem & in personam)

Won’t have much effect on in rem proceedings but will have a big effect on quasi-in-rem proceedings (property unrelated to the cause of action)

Minimum contacts can’t offend notions of “fair play & substantial justice”

Did transient JD survive shaefer when the court says that ALL assertions of state court JD is subject to minimum contacts?

Volkswagen Corp. v. Woodson

Robinson’s buy an audi from seaway and get in a wreck in oklahoma on route to moving to arizona.

Issue: Does ok. have jd over worldwide volkswagon corp. & seaway?

Holding: Since the D’s only contact w/ Ok. was through the accident that occurred this isolated incident does not satisfy the requirement of “minimum contacts” therefore there is no in personam JD.

:Is consistent w/ the 14th amendment, an oklahoma court is unable to exercise in personam JD over a non-res. automobile retailer & its wholesale distributor in a products-liability action, when the D;s only connection to OK. is the fact that an auto sold in N.Y. to N.Y. residents became involved in an accident in OK.

Friday 9/06

general rule , d can be sued in state of domicile (b/c of abundant contacts). Domicile is 1 factor but not the only factor. Have to have some other minimum contacts (as per shafer). Example, by owning even just 1 acre of property in another state you are availing yourself to the laws of that state thus giving you substantial continuous contacts with the state thusly satisfying minimum contacts clause of shoe (if the claim is related to the property). Shaefer put severe limitations on quasi-in-rem but it didn’t kill it.

International shoe speaks of minimum contacts & convenience to the D

These cases are listed under specific jd

McGee v. International Life Insurance Co.: P res of ca. purches life insur. from D. who lives in texas. Fam tries to collect on policy after he dies (of suicide). Original company he purchased insurance from was sold to another company (int’l life insurance) and he assents to being insured by the new company . He also regularly mailed premiums (to texas). Suit was filed in Ca. state court. State courts ruled they didn’t meet min. contacts rule for in-personam jd.

Hanson v. Denckla:

daughters fighting over the trust established in delaware. Mom moves to florida and has no real contacts w/ delaware and the trustee had no real contacts in florida. Suit filed in fla. and truste has no offices and does no real business there. Supreme court ruled no in personam jd in florida .

Convenience alone will not cut the mustard….requires more than just convenience, have to have minimum contacts & convenience.

Wednesday 9/11/02

look @ the language of ww vw (stream of commerce language etc.)

When a business or corporation purposefully avails itself of the privilege of conducting activities w/I the forum state it has clear notice that it is subject to suit there.

If you have even 1 contact w/ a related claim you have a good case to possibly get JD.

How jd law has evolved up to asahi case……

jd law is clearly grounded in constitutional considerations “due process requires that a D must have certain minimum contacts”

A court may exercisejd over a non-res D unless to do so would be so unfair that it would violate his due process rights under the constitution.

What is fair & what is substantial justice in the eyes of the court

3 guideposts from shoe

1) relatedness: If the P’s claim arises out of D’s contacts w/ the forum state

2) purposeful availment: Has the D purposely directed his activities towards that state so that he might reasonably be expected to be hailed into court there

3) reasonableness: concerned w/ undue burden’s on the D

Friday 9/13/02

part 2-a in asahi reiterates the wwvw decision about forseeability not being the mere likelihood that a product may enter a forum state but rather that the D’s conduct and connection w/ the forum state such that he should reasonably aniticipate being hauled into court there.

part 2-a distinguishes between two requirements for due process & “minimum contracts 1) stream of commerce into a forum state is enough for personal jd & 2) requires the action of the D to be more puposefully directed at the forum state. This is the two prong test for the “stream of commerce” standard of minimum contacts for a non-resident D in the forum state.

part 2 b: talks about the important distinction outlined in wwvw regarding burden on the D. This is the other aspect that 8 justices agreed on for the dismissal. It was an undue burden to require to international corporations to decide the matter of a transaction that took place in Taiwan in Ca.

This case is not decided on minimum contacts but on the reasonable & fair play & substantial justice factors.

Monday 9/16/02

BK was filed in Federal court but there is really no distinction b/w state and fed. when it comes to inpersonam JD.

legal issue: did the facts of bk v. rud satisfy specific JD? Was there minimum contacts?

BK is an extreme extension of in personam JD as it relates to the facts of that case.

wwvw, asahi, & bk are considered as an in personam jd trilogy that gives

1) purposeful availment is based on some act of the D, he most act some way

(THE long term contract in the BK case or the small part the D’s product plays in the forum state in asahi)

what did we learn:

1) wwvw majority held D lacked minimum contacts w. state of OK. However the convenience factors seemed to be satisfied but w/o minimum contacts there can be no JD

2) In asahi the authorities couldn’t agree on the stream of concious justification of minimum contacts but they could agree that it wasn’t convenienct to have a trial there. No inpersonam jd

3) in bk the fair play and substantial justice factors may satisfy personal jd even when minimum contacts are very, very slight

Generally, it is accurate to say that the courts use a three step analysis in considering personal jd

1) did the D puposely avail himself of the benefits and protections of the laws of the forum state?

2) did the claim that is asserted against the D grow out of his contacts w/ the forum state?

3) is it fair and reasonable to subject the D to personal jd in the forum state?

Weds. 9/17/02

general jd…

individuals can always be sued in their domicile

general jd can have very broad application

in burnham v. superior court all 9 judges agreed there was JD but there were differing reasons as to why.

Brennan says, youhave to make sure, even If you catch the person in the state , that you don’t violate contemporary notions of “fair play & substantial justice” (due process).

Transient JD is not dead & it doesn’t matter if it is related or unrelated.

If you follow justice scalia, service while present in forum state confers personal jd even though the claim is totally unrelated to his presence there (pure transient JD)

but, that tends to run into traditional notions of fair play & substantial justice (due process)

justice brennan, thinks the court must evaluate that due process clause in every case & if the inquiry finds a violation of traditional notions of fair play and substantial justice even if you were in the forum state when served w/ process there would be no JD>

Friday 9/20/02

Jurisdiction to determine jurisdiction (jeez). A D who believes the court has no JD can ignore the court (it has no power to order you to do anything)

Discovery proceeds on the premise that there should be no surprises in a trial for justice (surprise leads to an unjust result ) it’s much better for everything to be put out on the table b/c the law encourages settlement over litigation. Discovery is a powerful tool. One engages in discovery in many broad (pg. 68 of the supplement) ways scope of discovery may be obtained regarding any matter that is not privelaged

Main discovery devices available are:

1) The taking of oral depositions

rule #33 allows you to address interogatories to the parties (ex: who do you know that might know anything about this matter at hand?)

rule #34 provides for production of documents & entry onto land.

rule #35 allows a client to be examined by a doctor of my choice (does the client actually have the injuries that they claim)

rule #36 request for admissions is where someone is served a list of facts and they have to respond and affirm or deny the facts (to get rid of facts that there is no contention about so argument can focus on matters of contention)

Justice whites arguments to support the personal privelage approach:

Since personal jd can be waived by a party it cannot be tied to a state’s sovereignty

He also states that if personal jd is only a personal privelage than it follows that the law can condition it (ie: make the D cooperate so the court can make an intelligent decision as to personal JD)

Failure to answers is presumed by the courts that the answer would be unfavorable and they can presume JD based on that.

The pragmatic necessity of determining JD @ the earliest opportunity.

Monday 9/23/02

Consent & jurisidiction: Parties can consent to personal jd. but not to subject matter jd.

Presence, contacts, purposeful availement, appointing an agent, failure to appear (consent by waiver) are all types of consent.

Consent by contract, ie negotiate the terms & put perferred venue into the contract (can reasonably say that they should be enforcabel b/w the two parties). Otherwise known as a “forum consent clause” acts both as consent to litigation in specified forum and a bar to litigation in any other forum.

Carnival cruise lines gives validity to “forum consent clause” contracts & is an important decision in that regard.

The clause is enforcable b/c the supreme court says so

The majority would not accept a forum consent clause if it was fraudulent or over-reaching

“NOTICE”

is constitutionally protected (due process)

process is a summons (court order) that says that you must appear @ such & such a date & if you don’t respond a default judgement will be entered against you.

notice, process, summons all mean the same thing

1) constitutional requirement that the person notified must be “fairly aprised” of the proceeding

2) The form of the summons should meet certain requirements (must have a copy of the complaint, person served should be named , should be delivered to him personally but can be left @ his home (domicillary service) or business & it absolutely must state when & where he must appear to respond to the complaint & if he doesn’t appear a default judgement may be entered against him)

Mere service on sec. of state in non-res. motor vehicle cases is considered a violation of the 14th amendment.

Mullane v. hanover Bank & Trust Co.: Considered to be the hallmark case in terms of “NOTICE”

facts: the hanover bank is the appellee & was a trustee and supervised a trust fund that was set up in N.Y. (113 trusts worth millions) these trusts had numerous beneficiaries somje of whom did not reside in N.Y. Court allowed settlements to be announced ina public newspaper. Hannover bank had the names and addresses of the original member but not a complete list of all the beneficiaries. Mullane deals w/ 3 classes of be.

1) those whose names & addresses known to trustee

2) “ “ “ “” were not known

3) “ “ “ “ could be asertained but only at considerable expense.

Monday 8/30/02

Mullane continued….

mullane is to NOTICE what shoe is to personal JD

Was the notice provided in the local paper sufficient to satisfy due process with respect to known & unknown beneficearies of a trust

If they are known beneficiaries notice by mail is appropriate and required

Mullane is a practical solution, Unknown beneficiaries are not going to receive any notice & the court knows it

Publication is sufficient for those that are unknown (too costly to seek them out)

If beneficiaries are known, direct mail

This case opened the door for what is sufficient notice for due process

Rule 4 & notice (summons)

summons just says your being sued, the complaint says what it is all about and both must be served initially.

Rule 4 has been drastically amended :

seeks to reduce costs

makes service of process less formal

relieves the U.S. marshall’s office of having to serve every initial process

P has the primary responsibilty of serving the innitial summons & complaint

Summons can be served by mail

4c(2): Service may be effected by any person who is not a party & is @ least 18 yrs. of age.

If you don’t have a good reason for refusing the mail service you have to pay all the costs of being served the more formal way (4d)

Look @ 4e

Under rule 4 state laws that are applicaple for in personam jd apply to fed. courts in that state

Wed. 10/2/02

long arm statutes: statutory vehicle by which a state extends its inpersonam jd over non-resident. (commonly applied when testing in personam jd today)

One must determine if due process is violated by the terms of the statute itself or by the particular event that the statute wants to cover.

Bottom Line: When you are faced with filing a suit against non res. d you employ a 3 step test to determine personal jd over non-res D:

1) Does a state have a statute?

2) Do the facts of the case fit w/i the statute?

3) Do the provisions of the statute & the circumstances of the case itself meet the const. requirements to due process?

If you can answer YES to all 3 steps you should have valid inpersonam JD.

Long arm statutes are part of a states sovereing rights but it must satisfy due process (no inpersonam jd for 6foot tall blue eyed people for example)

VENUE

venues vary from state to state (like long arm statute)

in la, art. 41 & 42 is the venue statute

Fed. venue stat is 28 usc §1391 (general federal venue statute)

in la, venue means the parish where an action may be properly brought and tried under the rules regulating the subject.

Both venue and jd deal with the common problem of which court is proper to decide an action, but jd is concerned w/ the authority to exercise judicial power, & venue is concerned with the particular place that that power should be excercised.

Venue statutes became important when transient jd became commonplace & the basic philosophy of venue is convenience to eveyone concerned (parties, witnessess, & court)

One of the 1st thing you want to do when filing a lawsuit is look @ the venue statute to determine what is the proper venue.

Look for the proper federal judicial district (3 in la. n.o is in the eastern district)

28 usc §1391

really need to know sub § a, b, c

a only covers those cases for the basis for subject matter jd is only diversity

b covers all other cases other than diversity

(sub sub § 1 &2 of a & b are identical, only diff. in § 3 & it is rare)

subsect. a1 & b1

a1 & b1: Venue based on individual as distinguished from corporate residents. C deals with corps.

In venue you look to the particular judicial districts & not just the state

venue privelages can be waived b/c it is a personal privelage

Friday 10/4/02

corporate venue authority is discussed ins §1391 (c)

venue for a D corp. is equated w/ personal jd…

§1391 (c) the purpose of this section is to define and determine corporate residence of the D for venue purposes.

The D as a corp. shall be deemed to reside in any district where the corp. would be subject to personal jd. (ie: minimum contacts)

Federal judicial districts are considered as if they were separate states…..

If you can’t get personal jd , you can’t get venue

Always check to make sure if there is a special venue statute which covers a particular type of claim.

Monday 10/7/02

always have to have personal jd, subject matter jd, & venud

Forum Non Conveniens: the discretionary power of a court which has both valid (subject matter and personal jd) to decline to assert its jd b/c it believes it is more appropriate to try the case in another court

Allows the court to have a lot of room to make a judgement call.

Based primarily on the idea of convenience to the parties, witnesses, court, public etc. (resembles venue in a lot of respects)

Forum Non Convenies is based on 2 policy matters:

1) States interest in protecting its own citizens from unnecessary expense and congestion of courts

2)Convenience to party, witnesses & public.

Venue is based on statute, but forum non conveniens gives the court discretion to apply the doctrine.

Factors that influence the court in fnc :

1)Availability of witnesses- onese who must be compelled to attend, geographic limits on subpoena power

2)access to elements of proof: medical records, documents, K’s , etc.

3) Having a forum that is familiar w/ the law

4) wehter or not an adequate alternative is available

5) expense to parties to trying acase in one forum as opposed to another

FNC requires the dismissal of the lawsuit

Transfer: Court can transfer a case w/o dismissal but you cannot transfer to a court in another state

Court can impose prejudice & grant FNC motion provided that you submit to the jd of the fla. ct. or waive the statute of limitations and if you don’t meet these conditions I won’t grant your FNC motion

Be sure to understnand diff. b/w FNC & transfer

28 U.S.C. §1404 Fed. Transfer Statute- 3 standards 1) convenience of parties 2) convenience of witnesses 3) interest of justice

(Very broad discretion)

Fed. Court can transfer to any other federal district anywhere else in the u.s.

Dismissal in Fed. in FNC is limited to 2 sitiuations: Where the proper convenient forum would be a state court or Where it would be a court in a foreign country.

Piper v. Reyno is all about forum shopping & courts generally regard forum shopping as evil

In some instances you can remove a case from state court to fed. court. This is what the lawyers for piper did

Then they moved to transfer to the fed. court in Pa. (where the aircraft was manufactured) and that motion was excepted.

Once they were in fed. court in Pa. they moved to dismiss for Forum Non Conveniens to Scotland (where the accident took place)

this is in a sense reverse forum shopping

You do not look @ issue of unfavorable law when deciding forum non conveniens.

Can the ct ever look @ unfavorable law when making a decision?

Yes, if the change remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight (in extreme cases)

Fed. courts are courts of VERY limited Jurisdiction. Congress has sharply limited the ability to bring a suit in fed court as per Article III §1 Fed. Judicial power shall be in 1 supreme court. However congress created the lower fed. courts. & their JD.

Subject Matter JD of Fed. Courts

Article III : The judicial power shall extend to all cases ARISING UNDER maritime jd & instances b/w citizens of diff. states.

for the lower fed. cts. it takes the grant of constitutional power plus congressional authority to confer jd on these courts.

Federal Question JD:

charles allen wrights “federal cts” (horn books)

for “arising under” or federal ? jd there is no minimum amounts. The main problems

in §1331 come from “arising under”. Sometimes congressional statutes themselves authorize jd.

As a GENERAL rule, when fed. laws are in controversy-they create fed. ?’s arising from laws from U.S. even if they don’t grant special jurisdiction w/I the statute. But it has to “arise under” a fed. law to creat a fed. ?

Gully v. U.s. : law of US must be an essential element of P’s cause of actio to qualify under § 1331.

This means that to have that jd

1) there must be a real issue to support P’s cause of action

2) that issue must truly be in controversy

3) the outcome of the litigation will be determined by its resolution

note

1) even though a federal law may be involbed in the litigation, if it is a collateral issue, than it is not a substantial one and doesn’t qualify e3ven though a federal law is involved

2) A claim w/o merit does not present a real controversy

3) If the federal questions have aleready been decided by prior decisionk, it isn’t an issue in present case.

Rule 8 –The well pleaded complaint rule- P must allege in init. complaint the basis for the courts subject matter jd (wether it be 1331,32,33 etc.)

Louisville R.R. v. Mottley:

Motleys sued in Fed. ct for specific performance of K

Court raises the issue of FSMJ

FSMJ cannot be waived by the parties (either it is there or it is not)

Can be raised @ any stage

Is the 5th amendment law applicable to the K?

If it is does it violate their rights?

The court is applying the well pleaded complaint rule in this case

bottom line: Fed ? to apply 1331 must appear in P’s complaint as a real issue in support of P’s claim. Here P is seeking specific performance of a garden variety state K. They raised the federal ? as the D’s defense (5th amendment) but b/c it wasn’t a part of their claim Fsmj was not applicable.

b/c P’s claim arose under the K he had with D. Breach of K has nothing to do w/ fed. law & they only plead the federal issue as the D’s defense to the P’s claim. This is not a federal ?.

Real value of the well pleaded complaint rule is that it allows courts to determine fsmj to make these decisions @ the beginning of the case.

arising under means arising under FEDERAL law.

Diversity Jurisdiction:

§1332

has to exceed 75,000 eclusive of legal interests and costs and b/w citizens of diff. states.

All P’s must be diverse to all D’s in the lawsuit.

3rd party D = P v. D v 3rd party D

Friday 10/11/02

state court jd is concurrent w/ fed. jd based on diversity

D can defeat a state court jd by removing to a fed.court (under certain conditions to be explained later)

§1332 creates a 75,000 amount in controversy requirement b/w citizens of diff. states. Who is a citizen? 14th amend. all persons born or naturalized & subject ot the jd thereof are citizens of the u.s. and of the state where they reside (domicile).

Domicile: Where the person resides and where he intends to remain indefinately.

Once domicile has been established we have citzenship as outliend in the 14th, domicile can only be changed by satisfying the same 2 requirements.

Diversity is determined at the time the suit is filed.

A P could change his domicile to create diversity for fed. jd.

§1332 (c)2: A legal representative of the estate of a decendent will be deemed as a citizens only of the same state (includes puerto rico & d.c.)

general rules of citizenship &1332 c 1: corporations are deemed citizens both of states where they are incorporated and in states where they have their principle place of business.

the 1958 amendment gave corp. 2 domiciles for purposed of federal diversity jd.

these things were purposely done by congress in order to purposely limit the scope of the federal courts.

remember, this is entirely separate from venue

partnerships are generally considered to have citizenship in all states where the partners reside, same things with unicorporated associations (labor unions)

Mas v. Perry

case of the two way mirrors in the apartment….

the P’s were in school @ LSU at the time. Mr. Mas is a citizen of France & when he married Mrs. Mas she was a domicile of MS. They eventually moved to illinois. After completing his phd. studies they had not determined where they would permantly reside.

issue: Was there diversity b/w the P & the D?

this case emphasis that in order to have diversity there must be complete diversity.

D is citizen of La. Husband P is citizen of france , wife P is a ? as to her citizenship. But it has to be complete, both P’s must be diverse from the D.

P has the burden of proving that there is diversity if it is challenged.

A general rule is that a wife’s domicile is considered to be that of her husband.

However, an American woman is not deemd to have lost her U.S. citizenship solely by reasons of her marriage to an alien. 8 U.S.C. §1489.

look @ statute §1332

1332 a4, an alien admitted for permanent residence is deemed to be domiciled in the state where he is residing.

this was an amendment that was made after mas v. perry was decided. It would have effected diversity jd in this case.

Amount in controversy: The minimum jd amount for 1331 was eliminated & we don’t’ have one for 1333 (admiralty & maritime) but we do have one for 1332 and it must be above 75,000 exclusive of legal intereset& court costs. Cannot be exactly 75 but 75,001 is ok. However, when attorney fees are authorized by statute they may be included in the 75,000 fee. When the P is suing on a promissary note and claiming both principle and interest the interest on the note that is part of the claim may be included (legal interest would still be excluded).

The “legal certainty” rule before the suit can be dismissed for lack of monetaryrequirement amount D must show to a legal certainty that the P cannot recover 75,000. The burden is very tough & on the D. Courts must rely on allegations in the P’s complaint. What happens when P alleges in excess of 75k, they try the case & the jury comes back with a verdict of 50k, is jd defeated? No. 1332b provides that if P covers less than the required amount the court MAY deny costs to the P and may impose court costs on the P (it is discretionary & most courts are reluctant to impose it).

Examples of proving the legal certainty rule: Some wrongful death statutes limit recovery to certain amounts, P sues D for compensatory damages of 25,000 & then adds a claim of punitive damages of 60k. What then? Look to the jurisprudence and law of the state to see if it allows punitive damages for that type of claim. If they do not than it will be dismissed.

Most problems in this area have arisen w/ respect to aggregating claims to reach the 75,000 & w/ multiparty litigation. pg49 supp.(remember) rule 18a: a party asserting a claim for releif may join as many claims legal, equitable, or maritime, as a party has against an opposing party. Courts have ruled a single P may aggregate his claims agaisnt a single D in order to reach the 75k requirement even if the claims are unreleated.

Congress imposed these limits and not the constitution.

Congress had the power to limit the fed. ct. jd and it did so.

Wednesday 10/16/02

touching on supplemental jd (thorough next semester): A single claim can aggregate whatever claims he has against a single D in order to satisfy the 75k requirement.

The philsophy of supplemental jd is to get as many claims and as many parties into one piece of litigation as possible. Basic rule is that a single P against a single D can aggregate their claims even if they are unrelated (rule 18) However, if a p sues 2 or more D’s on separate claims he cannot aggregate them to satisfy the 75k requirement.

If more than one P w/ joint and common interests in their claims they may be aggregated to meet the 75k requirement.

ex: of joint & common interest: A home which is considered to be community property, also assets of a partnership, a labor union (however every member of a class in a class action must meet the 75k rule) .

Same interest of P’s to win the lawsuit does NOT equeate to a joint & common interest.

Unless the right asserted can be translated into money, then there is considered to be no amount in controversy. The value of the right the P seeks to enforce or protect.

ex: Norman’s sign blocked by a bigger sign. What is the value of his lost buisness? That would be the amount in controversy.

review:

remember, All P’s have to be diverse from all D’s.

State courts have concurrent jd w/ fed. ct’s. So if you have diversity you can still sue in a state court.

Citizenship is determined at the time the suit is filed and not the time the accident occurs.

You cannot recover twice for the same damages (ie negligence & intentional injuring)

Does a state allow punitive damages for a particular cause of damages?

If the state does allow them a 50,000 punitive damage claim could be allowed to aggregate

Friday 10/18/02

Supplement Jd & ancillary jurisdiction:

§ 1367 is supp. jd

muti party and multiclaim cases create problems in this area,

Rule 13: counterclaim & cross claims, these rules simply authorize procedure in fed. cts. they do not create subject matter jd for the fed cts.

rule82 says that these rules shall not be construed to extend or limit the subject matter jd of the fed. courts.

brief overview

counterclaim: a rule 13 counterclaim is always against an opposing party. A D wanting to assert a claim against the P (and he can do this b/c they are opposing parties)

cross claims: do not require that the parties are opposed to each other. A cross claim can be asserted against any other party. If a P sues three D’s the D’s can file cross claims against one another.

3rd party practice: Rule 14 authorizes impleader actions: P vs. D vs. Third Party D – may bring in 3rd party after commencement of the action. D brings in the third party and are basically saying that if D is liable to P than the 3rd party D is brought in by the D b/c they feel that they are liable as well.

counterclaims generally are not aggrevate b/c of wellpleaded complaint rule

but remember, all parties must be diverse, if 3rd party d is not diverse from other d & p there is no smjd.

Ancillary Jd (supplemental): generally anjd concerns claims that are derived from the P’s claim against orig. D

It makes sense to get as many claims possible into one piece of litigation.

Anjd approaches the problem from the standpoint of the D, the right of the D to assert claims and bring in new parties without having an independent basis for those claims (ie doesn’t have to be maritime or diversity etc.)

P (la) is injured on a drilling platform in the Gulf when P slips in some drilling mud . ABC oil corp. owns the platform & ABC is a Delaware corp. with principle place o’ bus. in oklahoma. P is employed by a company “bayou welding corp.” (also a delaware corp.) w/ princple place o bus. in Houma, La.

Assume that ABC has entered into an indemnity K (oil comp. provides that if any of their employess injured on abc’s platform they will be indemnified of responsibility).

ABC says cajun mud corp (del/la.) is the cause of plaintiff’s injury.

Cajun mud says they bought the mud from Pacific supply co. (Ca./ Del) and they claim that the mud sold to them by pacific was defective. ABC corp refuses to pay bayou weld (p’s employer) for the work that bayou did after to the accident (50k). So abc

P v ABC (D) (3PP) then abc impleads Bayou welding(3pd) based on the indemnity K. ABC also impleads cajun mud (another 3pd). Bayou brings a counterclaim for the 50k that abc refused to pay. (Authorized by rule 13). Cajun will certainly bring Pacific into the litigations so they bring an impleader action against them and they become a 4th party D. Bayou will also crossclaim cajun & cajun will do the same thing right back to em.

Monday 10/21/02

ancillary jd: clearly applies to rule 13 crossclaim and counterclaims & rule 14 impleader claims

another type of expansion in fed. court is when P sues D (both la. cit) with a Federal claim and an ordinary state claim that grow out of the same set of facts. Rule 18a authorizes the joining. but they do not create jd. they simply authorize the joining of the two claims. b/c the second claim did not fall under fed. law there would not be no 1331 jd , no diversity 1332 jd. but since they both arise under the same fact situation it makes sense that they are tried together. This is what 18a authorizes and it is called “Pendant Jurisdiction” and is the other part of ancillary jd. Lik ajd Pendant expands the lawsuit but it approaches the expansion from the P’s view point. (whereas ajd approaches from the d standpoint) .

there are 2 types of pendant jd.

1) pendant claim jd:

2) pendant party jd.

United Mine workers v. Gibbs.:

Both claims come under the same set of facts but they are separate and distinct causes of action. Does Pendant Jd apply to a state law claim filed in fed. court when it is joined in the same piece of litigation with a federal claim and they are related but separate but distinct causes of action. Fed. question under the labor law. (§1331). Justice brennan says that under certain circumstances a state law pendant jd will apply.

Pendant jd exists whenever there is a claim arising under the const. , the laws of the u.s., and treaties made, or which shall be made, and the relationship b/w that claim and the stte claim permits the conclusion that the entire action before the court comprise but one const. case. the fed. claim must have substance sufficinet to confer subject matter jd. on the court. The state and fed. claims must derive from a common nucleus (related)

1) state claim has to be related to fed. claim

2) look at the carefully, if the fed. rules would have them brought in one preceding (w/o regard to fed or state char.) than it is ok.

3) the federal claim has to have substance sufficient for subject matter jd.

Judge has to exercise considerable discretion and provides 3 consideratiions judicial economy, convenience to parties, and fairness to litigants. You do not have a right to pendant jd., unlike ancillary….

Once it appears that a state claim constitutes the real body of a case, to which the fed. claim is only an appendage, the state claim may fairly be dismissed.

Congress has codified this at § 1367.

Remember this is a gloss. we’ll go more in depth next semester.

Removal JD: Court must obtain personal jd, subject matter jd, and court of proper venue. Given those 3 things P choses a forum (forum shopping) which is a big advantage but removal jd allows the D to veto that choice. Why? Because he can remove the case from the state court chosen by the P to the federal court when it applies. Doesn’t apply to all cases however. When a case is validly removed to fed. court the fed. court now has jd and the state court is releived of all jd in regards to the case. Why give the d’s that opportunity? Other side of the coin to diversity jd. This protects the d from bias (ie p’s cousin the judge) 28 usc §1441.

removal is diff. from supplemental jd. Supp. expands fed. jd to try and make the fed rules of civ. pro. work , removal simply allows the d to take it from the state court to applicable fed. court.

However, in order to remove, the fed. court must have had jd originally (either diversity or fed. question). this is a requirement, fed. court MUST have had jd. Some cases, however, are not removal even if could have been brought in the fed. originally. §1441(b). If you don’t have 1331, or 1332 you can only remove if none of the parties is a citizen of the state in which such action is brought.

§1441 (e) state courts are not derivative any more.

you cannot remove from fed. to state court

you cannot remove to another state court w/in or w/o the state (no state to state)

you can’t remove to a fed. court in another state. You also can’t move to another fed. district in the same state. Fed. venue rules don’t apply in removal cases.

Multiple D’s and removal, general rule is all D’s must join in and agree to the removal to Fed. court, but if p fraudulently joins a nominal d for the purpose of defeating removal the courts don’t permit that,

Weds. 10/23/02

Removal Jd cnt’d……

28 U.S.C. 1446 are concerned with removal procedure.

D wants to remove case from state court to fed court files a notice of removal, he attaches to his notice all the pleadings and other papers filed in state court. D must file notice of removal w/I 30 days of receiving P’s petition. P can then file a motion in the Fed. if he feels the removal was improper and ask the fed. judge to remand it back to state court. Than a judge will decide the merits. P has to challenge on a motion to remand to get back to the state ct. (30 days as well accept for lack of subject matter jd than it is anytime before final judgement).

Catepillar,Inc. v. Lewis:

P was a kentucky citizen & catepillar is a Delaware corp. Lack of Diversity can be cured even AFTER the suit is filed (P can drop a D).

1441(a) requires diversity at the time of removal.

However, in this case, the Sup.Ct. ignores the rule and says diversity was not necessary at the time of removal. This was a PRACTICAL POLICY DECISION, b/c it was the efficient thing to do. It would not have made sense to send it back to the state Sup. Ct.

You can remove to Fed. ct. if it is a federal question §1331

1441(b)some cases are not removable even though a federal court would have judisdiction.

rule: If you sue a D. in his home state, D cannot remove to federal court b/c there is no prejudice against him. Even if there is more than one D.

Case law has interpreted 1441(a) to say that all D’s must agree to the removal even though it seems to contradict what the statute actually says. Stare Decisis is more poweful than the statute according to Norman.

P can preclude removal to forfeit part of his claim and the supreme court has said he has the right to do it.

Friday 10/25/02

The eerie case: (has to be remembered by name)

the classic federalism struggle

struggle b/t states rights and federal intervention on those rights.

What law is to be applied? State law or fed. Common law?

Fed ?’s arriving under fed. law or under treatise § 1331 are always top precedent in state & fed. cases. However, this doesn’t apply to eerie.

Congress pases judiciary act in 1789:

§34, Rules of decision act-§1652- laws of states shall apply as the decisional law in the fed. courts where jurisdiction is based-in diversity cases apply state law in fed. courts.

What is fed. common law? Doesn’t exist after eerie.

Swift case held that the rules of decision act applied only to statutory laws of the state and did not include case law by the judges of the state. This allowed fed. courts sitting in a state in a diversity case to make their own laws, “general fed. common law” & completely ignore the state law. The result of this interpretation resulted in lots of “foums shopping” b/c fed. and state courts sitting in the same state produced different results in indentical cases (using the same precedents)

1938 ended 100 yrs. of swift .

1) congress approved the federal rules of civil procedure; no longer apply state procedural law

2) Supreme Court decided Erie.

Issue: Is the case law as established by penn. sup. ct. able to qualify as withing the meaning of “the law” as the term Is used in the rules of decision act.

Holding: Except in matters governed by Fed. Constitution or by Acts of Congress the law to be applied in any case is the law of the state also

In diversity issues, federal courts should look to state substantive law of the state law as long as there is no federal question, constitutional question or treaty.

the decision in erie creates a real division b/w substantive and procedural law

supreme court has held that erie principles apply to conflict of law problems in the federal courts. Conflict of law rules specify the circumstances in which courts of that state should follow laws of other jurisdictions.

there is no fed. common law

congress has no power to create common law that will be applicable in a state ( 10th amendment,

Swift was an unconstitutional assumption of powers.

10/28/02

no right should be w/o an adequate remedy. Courts of chancellory created their own rules and procedures. Equity itself became a remedy to the law and would provide a remedy where common courts at law were incompetant to do so. We inherited all of this from England. Today, equity and law are merged under the federal rules of civil procedure (rule 1). This is also reflected in the 7th amendment to the Constitution.

The “outcome determinatative” test:

Where state procedural law WILL affect the outcome of a case, you HAVE to apply state procedural law (treat it like substantive law under Erie).

(norman feels that eerie doesn’t solve its own problems)

Guaranty Trust Co. v. York- Outcome Determinative- does not overrule Erie. (erie has never been overruled) It says that eries execution is flawed but it does not overrule it.

The justices are concerned w/ consistency. Where state procedural law will vitally affect the outcome of a diversity case in fed. ct. it , like state substantive law, falls w/I the erie concept & state procedural law will be applied.

Statutes (& statutes of limitations) are included in this.

The substantive effect that a state procedure has on a case is what is really important.

Problem w/ York holding is that Fed. Courts would operate under a dual system of procedure . In 1331 cases fed. rules of civ. pro would be applicable and in diversity cases state procedural law would apply. Many procedural rules would be seen to be outcome deteriminative. Gives the fed. 2 systems and that wasn’t the intent. Norman feels guaranty trust creates thes problems which caused the S. Ct. to look at the issue again in

Byrd v. Blue Ridge Electric Cooperative:

Who is a “statutory employee”? In workman’s comp. if you are an employee of a comp. you cannot sue that company in tort damages, only for workman’s comp. D contends that P was a statutory employee and can only sue for workman’s comp. If the court finds that way the suit will be dismissed. P feels he is entitled to a judge’s decision. Since, it could be determinative to the outcome of a case wheter a judge or jury decides the rule of guaranty trust applies.

Issue: Which applies , S.c. decisional law to try issue to a judge or apply fed. procedure and decided by a jury.

Does state or fed. rule decide?

Holding: Outcome would be affected by wheter the issue of immunity is decided by a judge or a jury; court feels it MAY be outcom determinative.

Retreats Guaranty trust decision- Affirmative Countervailing Considerations- fed. right to jury trial.

Seems to be that the judge jury question is not really outcome determinative. But if it is fed. jury trials will prevail.

Pure policy decision by the S. ct.

Court seems to feel that the York decision could do too much and reduce the FRCP to mere words. & a conflict between a FRCP rule and a State rule for an outcome deterimanative issue would reduce the FRCP to mere words by always defering to state rules and that wasn’t the intent . It eases up the scope and severity of York v. Guarenty trust.

Wed 10/30/02

Hanna v. Plumer: Normans “make sense” version.

Hypos in advance

1) Suit in Fed. ct in La. P is citizen of N.C. sues D on claim of 80k & D is citzen of La. (assumptions: la procedural rule provides A, if that rule is applicable it will require dismissal of the suit. Also, one of the FRCP provides rule B, if the court applies rule B it will NOT be dismissed) Under erie, the court must apply state substantive law that is outcome determinative. Rule A is outcome determinative but it is direct conflict with one of the FRCP rule B, which rule do we apply?

Court must apply the FRCP b/c the state and fed rules are in DIRECT conflict. (a real modification of the york decision)

2) Suit in Fed ct. in La. P Nc. citizen sues La. cit. who is a physician. Malpractice suit for 100k (assumptions, La has med. review board that looks @ all cases of malpractice before they go to litigation La med review board finds no malpractice by the Dr. Also, A La. statute makes the findings of that board admissable in evidence. Assume also that Fed. Procedure holds that they are not admissable in evidence. Admitting the findings of the board will have a substantial impact on the jury and therefore possibly negate the right to have a njury decide. No conflict b/w state rule and fed. procedure, fed practice gives you a right to a jury trial. Considering the decisions in erie , york, & bird what should be followed, La. statute or fed. procedure? Erie’s objections are relevant in this hypo so the Fed. ct. should follow state procedure eliminating inconsistent results and the need for the P to forum shop. Remember, if erie objections listed below do not apply follow FRCP.

This is what Hanna is all about:

Ok. citizen in Fed dis ct. in Ok. for 10,000 damages for automobile accident that occurred in S.c. D dies so he sues her estate. He leaves the service @ wifes door but mass. statute explicitly applies that if you are suing an estate you have to provide delivery in hand, personal service. However, the federal rules do not require this. D files for summary judgement bc the service was invalid bc it violated the specific provisions of Ma. law. & district court grants it in favor of the d. First circuit court of appeals affirms the judgement. And the supreme court grants certiorari and reversed. & says service under rule 4 under frcp is proper.

Why this is distinct from Byrd. (which toned down york ). Byrd delt with the well established right to ajury trial in fed. court. Distinction b/w byrd and this one is that hanna involves a direct conflict b/w frcp and a state procedural rule.

York carried to exteme would nullify the frcp

In Hanna the court holds for the Federal rule when there is a DIRECT conflict b/w one of the frcp and a state procedural rule even though the state procedural rule would be outcome determinative under the york test. (specific holding in hanna). The supreme court is coming to the rescue of the FRCP.

It has to be a valid rule in the sense that it satisfies the provisions of the enabling act, and the court quotes this act in the decision pg 286 , none of the frcp have been found to violate this act.

However, this holding is not just limited to these rules (as we will see later) but has also been held to statutes, & appellate rules of civil procedure.

If you have a state procedural rule that could be outcome determinative and is in conflict w/ federal practice that is also outcome determinative but is NOT in the FRCP. The court says to look at the objectives of erie (no forum shopping, avoid inconsistent results b/w a state and fed. court deciding same issue in same state) & if these purposes are relevant to the case under consideration than the federal ct. must apply the state procedural rule. Result, if you file in state court, state procedural rule, and if you apply in fed. ct also state procedural rule, therefore you get a consistent result in accordance w/ erie (no reason for P to forum shop)

Only apply guarenty trust v. york’s outcome determinative test (state procedure) is only applied in the situation where you are really concerned w/ forum shopping and incosistent results .

Remember, in york there was a state statute of limitations that would bar P’s suit but they also had a fed. procedural policy that would allow the case to continue. If this was decided after hanna eries concerns are present b/c of forum shopping and the state statute would be applied in fed. ct.

An example of when not to apply the state rule. Change the assumption in Hypo 2.Med brds. finding about no maplractice would be allowed in both state and fed. If you have the same result no need for P to forum shop . So you would apply fed. law in fed. court.

Diff. b/w fed. practice and frcp. Byrd said specifically that in the fed. cts we have a well established strong practice of assigning various functions of litigation in a lawsuit b/w a judge and jury. We assing to the jury finding of facts and determination of what law applies to the judge in the fed (he then instructs the jury on what law to apply). Therefore, the overwhelming PRACTICE in the federal court is to have the jury provide facts. It is a procedural practice but NOT a FRCP.

wed 11/5/02:

are money damages ever really an adequate reward? Norman thinks the law is arrogant to provide money as a substitute of personal matters of the heart (death of a child for example). But the law has no other means to resolve the scenario. Does an adequate award compensate the loss and the gaining of the remedy?

In the fed. court costs are usually recoverable by the prevailing party. Expert fees are usually only recoverable if the expert is appointed by the judge. Discovery expenses & travel expenses usually aren’t recoverable. Attorney’s fees also aren’t normally recoverable.

In terms of the adequate award (making the P whole) P really gets 2/3(never really made completley whole in terms of compensatory damages) b/c lawyer gets a contingency fee (1/3) & it levels the playing field b/c a really poor person can get a good attorney to go up against a powerful insurance company.

Damages recovered on event of personal injury are exempt from income tax. In computing loss of wages do you look at net or gross? General rule in fed. cts. is that they should be based on net wages but some states allow for the latter. Should the judge or jury take that into account when rendering a $$ judgment?

Typical classifications of damages in PI cases

1) loss of wages from date of accident to time of trial

2) loss of future wages (not paid for life expectancy but rather for his work life expectancy) (how long he would work in that particular occupation

3) Medical expenses (these could be for the remainder of his life ie. medication)

4) Pain & Suffering (includes such items as physical pain,l mental anguish, embarrasment, humiliation, loss of sexual function, loss of senses,)

“Future Damage Calculators” or can be done by an actuary.

Loss of future wages. How long would P have worked (work life expectancy from table)? Health? Promotions? Salary increases based on productivity or cost of living increases? Fringe benefits?

Assume P earns 20k per yr. After injury, he can only earn 10k. Assume he is young and his work life expectancy is 40yrs. Jury will take 10k loss and multipy by 40 for lost future wages of 400k. P gets it today in a lump sum. Assume he can invest it reasonably and earn 10% a yr on it. He would be getting 40k per yr. twice original sum. Is this fair? Norman thinks not and juries remedy this by giving

“reduces to present value”: Takes the inflation rate and multiplies it by # of yrs toget total. For example 9.8 percent interest for 10 yrs would give you 98k. Jury must be instructed that a reasonable adjustment must be made.

can apply to pain & suffering as well

Punitive damages depend on wether the JD allows it. (La. restricts it, exception is DUI). Always take into account what the D can or cannot pay.

11/08/01

Honda: deals w/ punitive damages. Supreme ct. treats punitive damages as a constitutional issue under the due process clause. Court does NOT hold that punitive damages are unconstitutional. They are requiring however that pun. dams. are subject to procedural protections.

A state must provide for judicial scrutiny of all punitive awards. A state must also allow for a reduction of those awards when necessary.

Punitive damages are serious business (driving business away from la. b/c of excessive jury awards of punitive damages)

Specific performance is only available where money damages are deemed to be inappropriate.

equitable remedies are examples of specific relief (injunctions for ex.)

prohibitive injunction : prevents some one from doing something

injunctions can also mandate that someone do something.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download