Civ Pro Outline  WHO HAS JURISDICTION?PERSONAL JURISDICTION

o 4(k) Territorial Limits of Effective Service.(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a D:

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

o In Rem Jurisdiction ("against the thing") - Describes the power of a court to exercise jurisdiction over property (either real or personal) or a "status" against a person over whom the court does not have in personam jurisdiction. "In rem jurisdiction" assumes the property or status is the primary object of the action, rather than personal liability not necessarily associated with that property.

o In Personam – “against the person”o Comity -A practice among political entities (as nations, states, or courts of different jurisdictions), involving esp. mutual

recognition of legislative, executive, and judicial acts. - Recognition and reciprocity of rulings. - (Full Faith and Credit required - comity is not)

o Ex Parte - Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested; of or relating to court action taken by one party without notice to the other, usu. for temporary or emergency relief

o Quasi In Rem - Judgment against a person but recovery is limited to value of property within jurisdiction (property is basis for jurisdiction but does not have to be subject of proceeding)

o Capias ad respondendum - [Latin "that you take to answer"] A writ commanding the sheriff to take the D into custody to ensure that the D will appear in court.

o Full Faith and Credit (Art. IV, sec. 1) - Each state must give full faith and credit to the laws and judicial proceedings of other states

Personal Jurisdiction - A court's power to bring a person into its adjudicative process; jurisdiction over a D's personal rights, rather than merely over property interests. Same jurisdictional analysis for state or federal court because regardless it's still a Constitutional issue

Service must be made w/in the forum state (ACTUAL notice); state sovereignty w/in borders; none outside its borders ALWAYS check PJ first - Due Process (5th amendment federal/14th amendment state)

Breakdown of the gist between Constitution and FRCP STATE: 14th amendment - Due Process (Const. only says, hey...when you authorize your courts to hear a

case, you have to AT LEAST give due process and be sure that they have a reasonable relationship with the forum state. BUT, you, as states, still have to figure out if you want to grant the court the power to hear the case...So, what is the Long Arm Statute? What does the state say about it? Do they say go ahead as far as the Const. will let us? OR does it say, well, only if they've done XYZ?)

FED: 5th amendment - Due Process (Const. only says, hey...for Fed jxd, ALL WE ask is that you have minimal contacts, or be domiciled here in the US, BUT Congress still has to give power for courts to hear the case, SO, let's look at FRCP...under 4(k)(1)(a), the code says that a Fed. Ct. (in that District) will have the power to hear the case as long as the State has the power to hear the case.)

****B/c it’s a state tort COA, we defer to State JXD. o Ways of establishing personal jurisdiction

Physical Presence (either citizen-domiciled or transient-Tag…includes doing business in state) in rem (if against land) Voluntarily appear in court (express consent) Agency Implied consent Resolving civil status (marriage; divorce)

Pennoyer v. Neff - Established basis for personal jurisdiction (see above)…Can only enter a judgment against a non-resident f the party 1) is personally served while in state, or 2) has property within the state, and that property is attached before litigation begins (i.e. quasi in rem jurisdiction).

Actually two lawsuits #1 – Mitchell v. Neff

Suit for legal fees in OREGON state court; Mitchell served Neff via publication in OR paper Result = Default Judgment against Neff

Leading to sheriff’s sale to Pennoyer #2 - Neff v. Pennoyer

Neff’s ejectment action in FEDERAL court to get Pennoyer off his property Pennoyer's defense - his deed; Neff's argument - deed was invalid because OR court lacked power to render

binding judment; Because court lacked power, the sale and resulting sheriff's deed were invalid. Hess v. Pawloski - A state has the power to legislate that non-residents who use its highways consent to the

appointment of a third party as agent for the service of process in that state for actions arising from use of the highways.

Came 20 yrs before International Shoe and used implied consent to establish jurisdiction. By choosing to drive in a state, a non-resident demonstrates that the state is not so inaccessible or remote that it

would be unfair to subject him to suit in that state. That statute sought to put out-of-state drivers on the same level as resident drivers and did not discriminate against them.

When someone has come into the state and enjoyed its protection and benefit, they have subjected themselves to personal jurisdiction.

MINIMUM CONTACTSo Minimum Contacts Analysis: States establish circumstances in which they wish to exercise personal jurisdiction over Ds through

long-arm statutes (specific or general jurisdiction?) Determine if jurisdiction is constitutional; statutory authority for personal jurisdiction What kind of contacts will be required (isolated, or systematic and continuous) Is it fair and substantially just? (benefits and protections of state law, convenience, interests)

o Long-arm statute - A statute providing for jurisdiction over a nonresident D who has had contacts with the territory where the statute is in effect. Most state long-arm statutes extend this jurisdiction to its constitutional limits. (Court doesn't want to act on cases if it doesn't have to; may want to encourage commerce within state)

Enumerated Act Statute - If D has not engaged in any conduct set forth by the statute, courts cannot exercise jurisdiction over D, even if it is otherwise constitutional

Also called "laundry list" "If you ________, you are subject to personal jurisdiction within this state." - Ask, "Does it trigger the statute?"

Co-extensive with Constitution - Some States assert jurisdiction over nonresidents to the fullest extent allowed by Constitution

Some seem like enumerated acts on their face, but actually extend to fullest allowed by constitutiono International Shoe v. Washington - Established minimum contacts standard

Requires that in order to subject a D to a judgment in personam, if he isn't present, that he have certain minimum contacts such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."

Court evaluates convenience factors, protection for those who use benefits of state (roads, courts, etc.) in evaluating fair and just

Specific Jurisdiction - Jurisdiction that stems from the D's having certain minimum contacts with the forum state so that the court may hear a case whose issues arise from those minimum contacts. (If the case arises from contacts within the forum state, contacts can be more casual or isolated)

General Jurisdiction - A court's authority to hear all claims against a D, at the place of the D's domicile or the place of service, without any showing that a connection exists between the claims and the forum state. (REQUIRES MORE CONTACTS - Systematic and continuous - because the cause did not arise from contacts within the state ).

o McGee v. Int'l Life Insurance Company - Can establish jxdn if case has substantial connection to the forum state/jxdn (payments through mail service = benefits from state)…part of CA’s long-arm statute regarding insurance companies.

o Hanson v. Denckla – Contacts must be purposeful and deliberate, not sporadic and inadvertent; Unilateral actions of a 3d party can’t drag party into forum’s jxdn

o Worldwide VW v. Woodson – Could D foresee being haled into forum state's court; did D deliberately enter product into stream of commerce?

o BK v. Rudzewicz - Contracts Plus: Where D "deliberately" engaged in significant activities within a state, or created "continuing obligations" between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by "the benefits and protections" of the forum's laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.

Reasonableness Factors Burden on D Forum State's interest in adjudicating the dispute (their money for hospitals, ambulances, etc.) P's interest in obtaining convenient and effective relief Interstate judicial system's interest (practicality - where are the parties located?) Shared interests of all States (state's sovereignty)

Placed burden of proof on D - must present a COMPELLING CASE of unreasonableness Hints "gravely difficult and inconvenient" such that D is at a "severe disadvantage"

Burden is always on the D to defend their positiono Asahi Metal Industry Co. v. Superior Court - Placement of a product into the stream of commerce, without more, is not an act

of the D purposefully directed toward the forum state Changed Test: Old - D must "purposefully avail" of benefits/prot.; New - D must purposefully direct prod into forum Add’l conduct may indicate intent or purpose to serve the mkt in the forum state (Ex: designing prod for mkt in the

forum; adv. in forum; providing regular advice to customers in forum; mktg prod thru distributor who will be sales agent in forum state)

o Inset Systems, Inc. v. Instruction Set, Inc. – Intro’d internet contacts analysis Inset sued ISI for trademark infringement based on ISI’s use of the “inset” domain name and telephone number Continuous 24/7 advertizing in all states, CN Fair Play & Substantial Justice? D has no compelling case - Factors all point to CN

o Zippo Mfg v. Zippo Doc Com, Inc. – Sliding Scale for internet contacts A passive Web site that does little more than make information available to those who are interested in it is not

grounds for the exercise of personal jurisdiction Intermediate - Interactive web sites where a user can exchange info with the host computer. In these cases, the

exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the web site

Fully Interactive - Website accepts payment for services, etc.o Perkins v. Benguet Consolidated Mining Co. - Continuous corporate operations within a state were thought so substantial and

of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities. - SET THE BAR FOR HOW HIGH EXPECTATIONS IN GENERAL JURISDICTION

Due Process depends on quality and nature of activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure.

o Helicopteros Nacionales de Colombia, S.A. v. Hall – A co. ee is not enough for tag jxdn…unless he was personally resp. for events that gave rise to COA. Even so, HE IS NOT THE CORPORATION…Corp. is not subject to tag jxdn

Unilateral activity of 3d party not enough - (checks being drawn on Houston banks). Not continuing and systematic- Negotiation trip, training trip, and check = all part of the purchase package Purchases and related trips, standing alone, are not a sufficient basis for a State's assertion of jurisdiction.

o Burnham v. Superior Court of CA - A state can gain personal jurisdiction over a nonresident who was personally served with process while temporarily in the state, even if his purpose for being in the state is unrelated to the matter before the court.

o Carnival Cruise Lines v. Shute – Choice of forum clause ok - P's did not meet heavy burden on inconvenience; and no evidence Carnival included clause just to avoid litigation and Ps were given notice

Carnival has special interest in limiting fora for suit – otherwise since ship carries passengers to/from dif locales, it’s not unlikely that cruise mishap could subject them to litigation in several different fora.

Clause dispels any confusion about where suits must be brought and defended, and spares litigants time/expense of pretrial motions to determine correct forum, conserving judicial res.

Passengers who purchase tickets containing a forum clause benefit in the form of reduced fares reflecting the savings that Carnival passed on

PROCESS SERVICEo Rule 4.1. Serving Other Process

(a) In General. Process--other than a summons under Rule 4 or a subpoena under Rule 45--must be served by a United States marshal or deputy marshal or by a person specially appointed for that purpose. It may be served anywhere within the territorial limits of the state where the district court is located and, if authorized by a federal statute, beyond those limits. Proof of service must be made under Rule 4(l).(b) Enforcing Orders: Committing for Civil Contempt. An order committing a person for civil contempt of a decree or injunction issued to enforce federal law may be served and enforced in any district. Any other order in a civil-contempt proceeding may be served only in the state where the issuing court is located or elsewhere in the United States within 100 miles from where the order was issued.

o Mullane v. Hanover Bank ...reasonable notice calculated under all circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections; The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it

GIST - Though it's impossible to ever personally reach everyone, it's not impossible or unreasonable to do all you can to reach them - must be more than a gesture; Since all trustees have essentially the same interest, as long as you get to most, you reach the ones that care and they will have an opportunity to raise suit if there is an issue (thereby representing those whom you could not personally serve.)

Whether the method of notice violated constitutional right to due process

Constructive Notice - A fiction that a person got notice even though actual notice was not personally delivered to him/her. The law may provide that a public notice put on the courthouse bulletin board is a substitute for actual notice.

EX: Examples: Trade-marking is constructive notice that the trademark is owned by the registrant so if another entity

uses the trademark, it will be treated as infringement even if the other entity didn't actually know about the trademark.

Allowing service by publication when a spouse has left the state to avoid service (legal delivery of a legal notice) in a divorce action.

Constructive notice for unknown persons is constitutional but not for known persons OK - Attachment of a chattel or; action in real estate; but service on the property itself is better (in rem)

o Dusenbery v. U.S. - State does not have to provide actual notice, but it must attempt to provide actual notice; no heroic efforts

Due process only requires reasonable notice calculated under all circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections

o Jones v. Flowers – Must make a sincere effort to provide reasonable notice In this case, the government knew that its first effort to notify Jones had failed. Therefore, the Court ruled that the

government should have taken additional steps, such as remailing the notice or posting a notice on the house's door. If the state had never sent certified mail (which they were not required to do) and was not aware of RTS, then they

would not have been liable.

SUBJECT MATTER JURISDICTIONo Subject-Matter Jurisdiction - Jurisdiction over the nature of the case and the type of relief sought; the extent to which a court

can rule on the conduct of persons or the status of thingsStates can hear anything; Federal courts can only hear federal issues (US Constitution or within congressional statutory limits)

o Federal Courts may not hear Domestic relations (divorce, spousal support, child custody) Probate (wills and estates, but federal court may hear related matters - Anna Nicole Smith case)

o State courts hear usually hear state law causes of action But they may also hear some federal causes of action under “concurrent jurisdiction”

o State courts are usually courts of general jurisdictiono FLORIDA COURT SYSTEM

Supreme Court District Courts of Appeal (5 districts) Duval = 1st DCA Circuit courts (20 circuits) Duval = Fourth Circuit

Trial courts plus appeals from county courts County courts (67 counties) civil disputes involving $15,000 or less

o U.S. Constitution Article 3, § 2: The judicial Power shall extend to all Cases, in Law and Equity:

1. Cases arising under the constitution, federal statutes, and treaties; (Fed. Quest. Juris)7. Controversies between Citizens of different States;9. Controversies between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Authorizes federal jurisdiction but does not confer it on the lower courts unless empowered by Congress.

DIVERSITY OF CITIZENSHIPo U.S. Constitution Article 28, § 1332 Diversity Jurisdiction/Amount in Controversy

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between--

(1) citizens of different States; - Diversity of Citizenship(2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title, as P and citizens of a State or of different States.

For the purposes of this section, section 1335, and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.(b) Except when express provision therefor is otherwise made in a statute of the United States, where the P who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the D may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the P and, in addition, may impose costs on the P.(c) For the purposes of this section and section 1441 of this title--

(1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-D, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business; and (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.

o Mas v. Perry – Citizenship is required by domicile Diverse citizenship must be present at time of complaint - but court can exercise jurisdiction if the jurisdictional defect

is cured by the dismissal of the party that destroyed complete diversity Requires Domicile - Place of true, fixed, and permanent home and principal establishment and to which he has the

intention of returning whenever he is absent therefrom. Common Law - Wife was same domicile as husband; not modern rule Minimal diversity - Allows jurisdiction between two parties of the same state if one of the adverse parties is a non-

citizen (Ex: NY v. NY & VA) - Makes it constitutional, but not sufficient if there is no complete diversity UNLESS there is an applicable statute allowing.

o Strawbridge v. Curtiss (1806) - (No diversity if any P is a citizen of the same state as any D - NY & VA v. MD & NY)o Hertz Corp v. Friend (2010) - “nerve center” approach for determining a corporation’s principal place of business o Partnerships, LLPs, unions - Treated as a collection of individuals so look at all constituent memberso Legal Reps - Take on citizenship of party they represento Class Actions - Only look at citizenship of named Ps, not all absent class memberso Alienage Jurisdiction - Aliens can file suit, if they are aligned against US citizen, or a party to a suit against US citizen but must

have citizens on BOTH SIDES of case (Perm. Res. Aliens are considered citizens of domiciled state) Language of statute does not allow aliens to be adversaries without US citizens on both sides of case - BUT ok if US

Citizen files against alien Actions of Non-U.S. Citizens who are not citizens or subjects of any other foreign state (stateless persons) do not qualify

for federal jurisdiction. Saadeh v. Farouki - Perm. Res. Aliens are considered citizens of domiciled state

Court held that the amendment was intended merely to eliminate diversity between a US citizen and an alien with permanent resident status residing in the same state.

AMOUNT IN CONTROVERSYo Amount-in-Controversy - Must exceed $75,000

Del Vecchio v. Conseco – If punitive damages are recoverable as a matter of state law, the federal court has SMJ unless it is absolutely clear that the P would not be entitled to recover the jurisdictional amount under any circumstances.

Cannot aggregate claims of class members to satisfy amount in controversy requirement unless they are individually named (Snyder Rule)…so at least ONE person has to meet the amount

“either viewpoint” approach - amount in controversy can be determined from either the P's or the D's viewpoint In res (estate) issues it is proper to consider the value of the entire res for purposes of determining jurisdiction

b/c recovery has to be divided (estates and trusts) Party trying to invoke federal jurisdiction has burden of proving that case is properly in federal court. If not a C/Action then only 1 Defendant’s claims

FEDERAL QUESTION JURISDICTIONo USCA § 1331 Federal Question Jurisdiction (Statute that follows con.)

The judicial Power shall extend to all Cases, in Law and Equity:1. Cases arising under the constitution, federal statutes, and treaties; - FED. QUEST. JUR.

Federal Question Jurisdiction - The exercise of federal-court power over claims arising under the U.S. Constitution, an act of Congress, or a treaty.

Osborne v. Bank of US – Overruled by Mottley Congress may confer jurisdiction whenever a federal question forms an "ingredient" of the claim. It can’t just be a part of the defense…must be a part of the initial complaint

Louisville & Nashville RR Co. v. Mottley - Well-pleaded complaint rule - To qualify for statutory federal question jurisdiction the presence of a federal question must appear in the P's "well-pleaded' complaint.

Federal questions appearing only as defenses raised in response to a complaint will not suffice to warrant federal question jurisdiction.

The mere allegation of an anticipated defense that arises by some provision of the Constitution does not create a federal question giving a federal court jurisdiction.

Merrell Dow - A case may also "arise under" federal law where a disputed, substantial proposition of federal law is inherent in P’s claim or right to relief is dependent on construction or application of federal law (expressly creating a cause of action)

Grable v. Darue – (Supersedes Merrell Dow) Federal Jxd could also be = A state-law claim that necessarily raises a stated federal issue, actually disputed and substantial, which a federal forum may entertain w/o disturbing any congressionally approved balance of federal and state judicial responsibilities.

Master of the complaint rule - Well pleaded complaint makes the P the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.

Artful Pleading Doctrine - Although the P is the master of her complaint, courts will not permit the P to manipulate federal jurisdiction through "artful pleading." Artful pleading can entail efforts both to avoid federal jurisdiction and to obtain it.

Invoke Fed = P attempts to anticipate and refute federal law defenses in the complaint as a means of making the claim appear to raise a federal question.

Avoid Fed = P pleads state law claims, in areas in which federal law preempts state law

SUPPLEMENTAL JURISDICTIONo USCA § 1367. Supplemental jurisdiction

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by Ps against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as Ps under Rule 19 of such rules, or seeking to intervene as Ps under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

14 - 3d party Ds (Owen Equip v. Kroger) 19 - Necessary parties 20 - Parties joined 24 - Intervening parties Also prohibits supplemental jurisdiction over claims by certain proposed Ps Ps proposed to be joined as a P under Rule 19 (necessary parties) Ps seeking to intervene as a P under Rule 24

(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if--(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.(e) As used in this section, the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

o “Supplemental jurisdiction” enables the federal court to hear claims that would not get into federal court standing alone UMWA v. Gibbs - established pendent jurisdiction

The Court held that the elements needed in order to determine supplemental jurisdiction are: (1) a federal claim with sufficient substance to confer subject matter jurisdiction (2) the state and federal claim(s) must come from "a common nucleus of operative facts," and (3) the P's claims would ordinarily be expected to be tried all in one judicial proceeding.

…1 party/2 claims (1 is federal) Federal court can hear the pendent claim if it shares a “common nucleus of operative fact” with the federal claim

Moore v. New York Cotton Exchange - established ancillary jurisdiction (logically related) Two types of Ancillary

Counterclaim arises from same claim and original claim is federal Impleading from another claim (B in WY sues C in UT who then sues H in UT)

Counterclaim arose out of the same transaction as the main claim 3d party P can only recover from 3d party D if the P recovers from 3d party P

Aldinger v. Howard - No longer applicable Federal jurisdiction is not only limited by the Constitution but also must be conveyed to the federal district courts

by Congress in a jurisdictional statute. Suit was inconsistent with intent of Congress to bar federal civil rights claims against counties.

Finley v. United States - No longer Applicable; § 1367 overrules Finley Court found no indication that Congress meant to convey jurisdiction over any claims other than those against the

US ...2 different parties(1 is US)/1 claim

Owen Equipment and Erection Co. v. Kroger MUST still have complete diversity Kroger (IA) sued OPPD (NE) who impleaded Owen (NE and IA); Kroger then sued Owen

Because Owen was in NE and IA, there was no complete diversity Because she could not have sued OPPD and Owen together originally, it would ignore statutory limits on

jurisdiction to allow her to do the same thing indirectly after Owen was brought in as a 3d party D. Exxon Mobil v. Allapattah Services

1367(a) only requires that the court have “original jurisdiction” over one claim in order for supplemental jurisdiction to attach

Where the other elements of jurisdiction are present and at least one named P in the action satisfies the amount-in-controversy requirement, §1367 does authorize supplemental jurisdiction over the claims of other Ps in the same Article III case or controversy, even if those claims are for less than the jurisdictional amount specified in the statute setting forth the requirements for diversity jurisdiction

As long as one "named P" satisfies the amount in controversy, claims of other Ps joined through Rules 20 (permissive joinder p's) or 23 (class action p's) may be heard through § 1367(a) (Supplemental jurisdiction) even if those additional claims do not satisfy the amount.

In diversity class actions, only the named P's citizenship is considered (MULTIPLE PEOPLE CANNOT AGREGATE, BUT THEY CAN IN THIS INSTANCE????)

§ 1367(a) only requires that the court have "original jurisdiction" over one claim in order for supplemental jurisdiction to attach

Explain why the presence of a non-diverse party will destroy "original jurisdiction" but a P who does not meet the amount in controversy will not destroy "original jurisdiction"

Must still have amount in controversy, complete diversity, etc. Court rejects the “Indivisibility Theory” which says that all claims in the complaint must stand or fall as a single

indivisible civil action. This is inconsistent with the whole notion of supplemental jurisdiction (tag team jurisdiction if one holds

true) Rejects the “Contamination Theory” which says that inclusion of a claim or party falling outside the district court’s

original jurisdiction somehow contaminates every other claim in the complaint, depriving the court of original jurisdiction over any of the claims.

o Supplemental Jurisdiction Analysis Is there a Federal Claim in there somewhere Is there Statutory Jurisdiction? Now that they can, do they want to?

Exceptions (discretionary) 1367(a) only requires that the court have “original jurisdiction” over one claim in order for supplemental jurisdiction to

attach Once 1367 applies, look to 1367(b) for exceptions:

1367(b) does not exclude parties joined under Rule 20 or Rule 23 Look at § 1367(c) exceptions

Courts "may" decline supplemental jurisdiction (1) claim raises a novel or complex issue of State law (2) state law claim substantially predominates (3) court has dismissed original jurisd. claims (4) catch-all provision:

Exceptional circumstances, compelling reasons Cf. Gibbs . . .

Look at role of legislation

o Supplemental Jxd EXAMPLE: Start with P (NY) v. D1(FL) car accident P sued D1 b/c D backed into P, but D1 says D2 (NY) ran into him.

If D1 wants to implead D2 under rule 14 Can D1 implead D2 - is D2 liable in whole or in part for d1's claims? Yes Will d2 destroy diversity? d2 is from NY

1367 Under 1367(a) there would be supplemental jurisdiction. Under 1367(b) are they taken out of jurisdiction b/c he was made a party under Rule 14.

Impleader P can't implead D2 (only Ds can implead another D1)…but even D1 couldn't implead D2 because there is no

diversity. We can't let him bring in D2 just to get it kicked out of Fed. Ct. P prob. knew about D2 but chose not to sue b/c he wanted diversity and fed. jurisdiction.

D1 could still sue D2 but not implead (P gets to choose the jurisdiction in a way) Joinder

P could join D2 under Rule 19 joinder, but there would be no supplemental jurisdiction.

CLASS ACTION FAIRNESS ACT (2005) o Different rules

CAFA applies to class actions with more than $5m at issue & at least 100 class members CAFA allows for minimal diversity – only needs one P to be diverse from one D CAFA allows for aggregation regardless of whether any single P meets the $75k threshold CAFA has “red carpet” removal

REMOVAL JURISDICTIONo USCA § 1441 Actions removable generally

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the D or the Ds, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of Ds sued under fictitious names shall be disregarded.(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as Ds is a citizen of the State in which such action is brought.(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by § 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case maybe removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

o CONCURRENT jurisdiction - State court can hear state claims and most federal claimso What if (after removal) the federal court decides it does not have SMJ after all? Federal court REMANDS back to state courto Except as otherwise provided – so, we need to look at exceptions . . . .

D MAY remove a case – only the D can remove, and D may want to stay in state court or remove to federal court But – removal only if the federal court would have “original jurisdiction”

U.S. District Court for district in which case is pending o If the D files a federal counterclaim in the state court action, can the D then remove?

NO – same rules that we already discussed apply o Can additional claims falling within federal court’s supplemental jurisdiction also be removed?

YES – same rules that we already discussed apply o Two exceptions in diversity cases:

No removal if D a citizen of the forum – Already have a home field advantage [1441(a)] No removal if a diversity case and more than 1 year after the case filed in state court [1446(b)] Additional state law claims -- “separate and independent” state law claims -- that would not qualify for diversity,

federal question, or supplemental jurisdiction, may also be removed But court has discretion to remand matters back to state court where state law “predominates”

§ 1441(c) has been interpreted inconsistently by federal courts some declare it unconstitutional some say it allows any claim to be removed alongside the federal/diversity claim some courts allow only completely unrelated claims to be removed

PROCEDURES FOR REMOVALo USCA § 1446 Procedure for Removal

(a) A D or Ds desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such D or Ds in such action.(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the D, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the D if such initial pleading has then been filed in court and is not required to be served on the D, whichever period is shorter. If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the D, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

o Who can remove a case? D DBut not based on D’s federal question counterclaim But not a D in a diversity case if D is citizen of forum And all Ds must agree to removal [practice pointer - get consent before you file removal papers]

o To remove it, then… Simply file the removal papers in district court and the case is removed – does state court or federal court resolve the

issue of whether removal was proper? Note – removal does not equal consent to PJ

Must remove within 30 days of service of the document that first makes the case removable—usually the copy of the summons & complaint

No removal in a diversity case if more than 1 year has elapsed since the complaint was filed in state court

PROCEDURE AFTER REMOVALo USCA § 1447 Procedure after removal generallyo (a) In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all

proper parties whether served by process issued by the State courtor otherwise.(b) It may require the removing party to file with its clerk copies of all records and proceedings in such State court or may cause the same to be brought before it by writ of certiorari issuedto such State court.(c) A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it wasremoved pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.(e) If after removal the P seeks to join additional Ds whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the actionto the State court.

o If removal is improper, the case gets remanded back to state court Bases for remand?

Removal procedure was not properly followed [waive if not filed within 30 days of removal] No federal SMJ

And if the case IS remanded, the removing party is subject to attys fees/costs associated with the removal . . .o Hays v. Cave - The standard applied by the district judge in deciding to deny the motion to remand was incorrect

With few exceptions, a case filed in state court under state law cannot be removed to federal court on the basis that there are defenses based on federal law.

However, if there is a federal issue there, just because it wasn't mentioned doesn't mean there is no federal jurisdiction …Nothing in federal law prevents a disappointed litigant in a federal case from suing his lawyer under state malpractice

law.

SO IT'S FEDERAL…WHICH COURT? VENUEo In which federal district court should the suit be filed? (middle, northern, southern district?)

Note - there may be multiple venue optionso § 1391. Venue generally

(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in

(1) a judicial district where any D resides, if all Ds reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any D is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in

(1) a judicial district where any D resides, if all Ds reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any D may be found, if there is no district in which the action may otherwise be brought.

(c) For purposes of venue under this chapter, a D that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a D that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.(d) An alien may be sued in any district.

o Venue Examples (a) (1) & (b) (1) P v. D (resident of Jacksonville, FL) - venue lies in JAX P v. D1 (Jacksonville, FL) and D2 (Jacksonville, FL) - venue lies in JAX P v. D1 (Jacksonville, FL) and D2 (Miami, FL) - venue lies in JAX and Miami P v. D1 (Jacksonville, FL) and D2 (NYC) - no venue in JAX or NYC

o Note - Personal jurisdiction refers to domicile but venue refers to residence Some courts say that residence means “permanent residence” and is the same thing as domicile, which means an

individual can have only one permanent residence Look at residence at time action is commenced:

Any district where it is subject to PJ If more than one district in a state, any district within the state [pretend the district is a separate state] where

subject to PJ

If no such district, corporate D resides in district within which it has the most significant contacts Corporation's "residence" is same analysis as personal jurisdiction analysis Venue in removed actions (1441(a)) - remove to the district where the state action was pending Local action doctrine - for actions involving real property, venue is district where property is located.

o Bates v. C&S Adjusters, Inc. - DOESN'T have to be the MOST substantial part of the events, but must bear a close nexus to the claim

Bates defaulted on PA debt and C&S, a NY collection agency, sent letter addressed to PA residence, and it was forwarded to his new NY address.

Did substantial part of the events or omissions giving rise to the claim occur in NY? Yes, collection notice was sent to Bates, and redirected to his NY address; C&S intended him to receive letter, therefore

even though debt occurred in PA, the collection practices (which gave rise to the claim) occurred in NYo Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd. (E.D. Va. 1997) – Statutes may have their own special venue provisions and

courts can apply unless special statute is exclusive or it conflicts with § 1391, then § 1391(d) trumps.

CHALLENGING VENUEo Two options

File a motion to dismiss under § 1406(a), using the dismissal mechanism of FRCP 12(b)(3) Waived if not raised § 1406 Curing Defective Venue

(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

File a motion to transfer Motion to transfer under § 1406(a) if the venue was improper Motion for change of venue under § 1404(a) if the venue is proper but inconvenient § 1404. Change of venue

(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.(b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer.(c) A district court may order any civil action to be tried at any place within the division in which it is pending.(d) As used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court.

Forum selection clauses – can include venue Courts can transfer even if the transferor court lacks PJ Courts cannot transfer if the transferee court lacks PJ – weird result? Transferor court decides issues of transfer and party requesting transfer bears burden Hoffman v. Blaski

Filed in N.D. Tex. D moved to transfer to IL.

A district court may transfer any civil action to any other district or division where it might have been brought.”Suit could not have been brought in IL.

Smith v. Colonial Penn. Ins. Co. (S.D. Tex. 1996) Wanted to travel to another court because of air travel to Houston NOT inconvenient enough

Bolivia v. Philip Morris Companies, Inc. (S.D. Tex. 1999) Bolivia wanted to bring it to TX Philip Morris wanted to move it Moved it in sense of justice, because it didn't belong in TX court anyway

SUBSEQUENTLY JOINED CLAIMS o When additionally joined claims are asserted against parties to the original suit, no venue objection should be available. Since

the main action satisfied the venue statutes, these additional claims asserted later need not.

WHICH LAWS APPLY?ERIE DOCTRINE - Federal courts sitting in diversity apply state substantive law and federal procedural lawo Historical Context

(RDA) Rules of Decision Act (1789): 28 U.S.C. § 1652 - “The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.”

Swift v. Tyson (1842) (Overruled by Erie) - Held that "laws of the several states" referred only to statutory law Issue: whether “general commercial law” or New York law applies to the cause of action Federal courts are free to follow principles of general commercial law, even if those principles are contrary to

judicial decisions of the state in which the federal court sat. Rules Enabling Act (1934) (28 U.S.C. 2072)

Authorized S.Ct to prescribe rules of practice and procedure for federal courts, so long as they don’t abridge, enlarge, or modify a substantial right.

Led to FRCP Erie RR v. Tompkins (1938) - Held that, under RDA, if no statute on point, look to state’s substantive law.

Issue: disputed duty/breach in negligence tort Determine case to predict……What would the State do?

Sibbach v. Wilson & Co. (1941) – Held that it regulates PR, apply federal law

Issue: FRCP obliges P to submit to a medical exam, but state law did not require Upheld the constitutionality of the Rules Enabling Act (meaning that it is constitutional as long as it regards a

procedural issue only) Guaranty Trust Co. v. York (1945) – Held that if the state's legal rule would "significantly affect" the outcome of the

litigation then that law should be followed by federal court sitting in diversity (OUTCOME DETERMINATIVE TEST) Issue: Is SOL Substantive OR Procedural (answer – Substantive b/c of outcome det. Test) Justice REED (concurring) – hits the nail on head: “The line between procedural law and substantive law is hazy,

but no one doubts federal power over procedure.” Ragan v. Merchants Transfer and Warehouse Co. (1949) – Held that State law applies when pro. rule implicates SOL

Issue: Again, is SOL Substantive OR Procedural? (SOL stops running when action is commenced) FRCP 3–Action commences upon complaint filing or Fed-Action commences upon service

Byrd v. Blue Ridge Rural Electric (1958) – Affirmed York but held that Court must balance federal and state interests Issue: Which should apply for case determination? (State-Judge or Fed-Jury) Since issue implicated constitutional right to jury trial, it was imperative to federal policy to uphold

Hanna v. Plumer (1965) – Held that all rules could be viewed as outcome determinative, so test is not applicable if there is a FRCP on point

Issue: If there is an applicable FRCP for process service, which implicates SOL, is it Substantive OR Procedural? FRCP 4(d)(1)-Delivery to usual place of abode or State-MUST leave with executor/administrator=dismissed Attempted to reconcile Sibbach with Ragan and York, who favored state rules over FRCP

o Con Law Briefly - To understand Erie cases, you don’t need to fully grasp the Con issues, but here are the basics: 10th Amend. = powers not delegated to US by the Constit. are reserved to the States

So, US courts have no power to create a body of law to govern substantive rights Art. III, Section 2 – created the federal courts, which includes development of rules to regulate the system

SO, US courts have power to develop procedural rules, as long as these rules do not abridge substantive rightso Modern Ruling…

Within REA (procedural and don’t abridge, enlarge, or modify substantive rule) = If: Constitutional THEN, use Fed Valid Fed. Statute (at least arguably procedural) THEN, use Fed Valid FRCP, THEN use Fed It is a procedural rule (and therefore consistent with the Rules Enabling Act) Judicial practice (commenting on evidence, etc.), use State if there’s a question

If there is no controlling federal rule of law, consider: The procedural or substantive nature of the state law

Substantive- defines and creates legal rights and duties/Procedural – process for upholding them Whether application of the state law in federal court would implicate the twin aims of Erie

Discouragement of forum shopping - will litigants break rules to get their case into a federal court? Inequitable administration of the laws

Whether there are any countervailing federal interests that suggest applying federal law

PLEADINGS AND MOTIONSPLEADINGS o Common law pleading - required P to fit their claim within a form of actiono Later, code pleading required a high degree of factual specificity:

Who, what, where, when, how Code pleading often defeated claims by P's who needed the discovery process to get all of the facts

o FRCP 1938: Responded to problems caused by these technical forms of pleading by creating notice pleading (still get all of the meat of the facts during discovery, summary judgment, etc.)i. Rule 11 was created to impose a certification requirement intended to deter and punish the raising of frivolous claims

or defenses.ii. Rule 56 provided for summary judgment.

iii. Rules 26 through 37 provided for extensive pre-trial discovery between the parties.o Notice Pleading - Only requires the other side be put on notice of the allegations against himo Federal pleading rules are very liberal, unlike code pleading

THE COMPLAINTo Rule 8 - General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain:(1) a short and plain statement on the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; AND(3) a demand for the relief sought, which may include relief in the alternative or different types of relief. (called prayer for relief)

o Modern/Federal Pleading 8(a)(2) Short and plain statement of the claim No references to facts or cause of action Question is adequacy of notice

o Conley v. Gibson (1957) A complaint should not be dismissed for failure to state a claim unless it appears beyond doubtthat the P can prove no

set of facts in support of his claims which would entitle him to relief. FRCP do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules

require is a 'short and plain statement of the claim' that will give the D fair notice of what the P's claim is and the grounds upon which it rests."

o Swierkiewicz v. Sorema N.A. (2002) Title VII Case - Nat'l Origin FRCP 8(a) General Rules of Pleading: Claim for Relief

(a)Claim for Relief. A pleading that states a claim for relief must contain: FRCP 8(a)(2): Complaint must include only "a short and plain statement of the claim showing that the pleader is

entitled to relief." Such a statement must simply "give the D fair notice of what the Ps claim is and the grounds upon which it rests."

FRCP 8(e)(1): no technical forms of pleading or motions are required. FRCP 8 (f): all pleadings shall be so construed as to do substantial justice. If a pleading fails to specify the allegations in a manner that provides sufficient notice, a D can move for a more

definite statement under Rule 12 (e) before responding. Claims lacking merit may be dealt with through summary judgment under Rule 56.

o Bell v. Twombly (2007) - (Overturned Conley) Raised the bar on pleadings/complaints - Needs More Than “Labels & Conclusions” or recitations of the COA elements Claims are valid only if they allege facts that plausibly (not probably) suggest COA. To allege facts that are merely

consistent with COA are not sufficient. Factual Allegations Must be Enough to Raise Above “Speculative Level” Detailed Factual Allegations Not Required (No Heightened Pleading) Note: Facts need only be alleged; a suit can go forward even if the facts are unlikely to be proven by the P.

o Erickson v. Pardus (2007) (Pro Se = No lawyer) Pro Se complaint should be liberally construed Complaint failed to allege prison officials had caused "substantial harm" and made only conclusory statements Revived Conley v. Gibson by quoting Twombly citing Conley Dismissal for conclusory allegations is a "stark" departure from Notice pleading (REALLY different from Twombly who

stated that factual allegations must NOT be conclusory and must give rise to plausible inference)o Ashcroft v. Iqbal (2009) - Twombly applied in all civil actions NOT just anti-trust actions. A claim has facial plausibility when

the pleaded factual content allows the court to draw the reasonable inference that the D is liable for the misconduct alleged. Arrested on criminal charges and detained by federal officials under restrictive conditions; complaint failed to meet the

Rule 8 standards because he did not plead sufficient factual matter and his allegations were threadbare conclusions Two working principles underlie Twombly:

(1) Although a court must accept a complaint’s allegations as true, the court need not accept threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.

(2) Determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense.

PLEADING SPECIAL MATTERSo Rule 9. Pleading Special Matters

(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. Note - Statutes may also require heightened pleading standards Who bears burden? Party who is pleading; What is the burden? “rigorous” (g) Special Damages. If an item of special damage is claimed, it must be specifically stated. Prayer for relief/demand/ad damnum clause Final relief can differ, unless it was a default judgment Rule 9(g) – special damages must be specifically stated…

PLEADING ALTERNATE AND INCONSISTENT ALLEGATIONSo Rule 8. General Rules of Pleading

(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.(1) In General. Each allegation must be simple, concise, and direct. No technical form is required. (2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

NOTICE REQUIREMENTS & SERVICE OF PROCESSo Rule 4. Summons (Not listing all parts)

(c) Service.(1) In General. A summons must be served with a copy of the complaint. The P is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service. (2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint. (3) By a Marshal or Someone Specially Appointed. At the P's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the P is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.

(d) Waiving Service.(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The P may notify such a D that an action has been commenced and request that the D waive service of a summons. The notice and request must:

(A) be in writing and be addressed: (i) to the individual D; or (ii) for a D subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

(B) name the court where the complaint was filed; (C) be accompanied by a copy of the complaint, two copies of a waiver form, and a prepaid means for returning the form; (D) inform the D, using text prescribed in Form 5, of the consequences of waiving and not waiving service; (E) state the date when the request is sent; (F) give the D a reasonable time of at least 30 days after the request was sent--or at least 60 days if sent to the D outside any judicial district of the United States--to return the waiver; and (G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a D located within the United States fails, without good cause, to sign and return a waiver requested by a P located within the United States, the court must impose on the D:

(A) the expenses later incurred in making service; and (B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver. A D who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent--or until 90 days after it was sent to the D outside any judicial district of the United States. (4) Results of Filing a Waiver. When the P files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver. (5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

or certified mail to the agency or officer. (e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served at a place not within any judicial district of the

United States: Hague convention; service in manner followed by foreign country or letters rogatory (ask int'l court), can be served by personal service or return receipt mail (unless prohibited). (h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the D's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States: (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the D; or

(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

(m) Time Limit for Service. If a D is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the P--must dismiss the action without prejudice against that D or order that service be made within a specified time. But if the P shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).

o “A civil action is commenced by filing a complaint with the court.”o Service of the complaint on D must comport with 2 requirements:

Due Process Mechanics of Rule 4

o P can request D to waive formal service and accept mail service Purpose: saves money

o What are the incentives for D to agree to waive? Extra time to respond

Usual rule = 21 days under Rule 12(a)(1) How does Rule 4(d) request for waiver alter this time limit?

P must allow D at least 30 days to respond to request [or 60 days if outside US] if D waives, gets 60 days to answer [90 days if outside US]

Threat of incurring costs of service (U.S. Ds only) Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating

Motions; Waiving Defenses; Pretrial Hearing(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(A) A D must serve an answer: (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the D outside any judicial district of the United States.

o Serving Individual within U.S. - State where district court is located or the state in which service is made OR personal serviceo Personal Service Methods -

(A) personal service on D (by hand) (B) at individual’s “dwelling house or usual place of abode”

Must leave the summons with some person of suitable age & discretion residing therein (C) serve D’s “authorized” agent

Personally appointed or authorized by lawo Service on a Corporation

Unless otherwise provided by federal law…or if D files a waiver under Rule 4(d) . . . Service methods depend on whether the corporation is served within the U.S. or abroad

Same methods as an individual…Refer back to Rule 4(e)(1); Use state law method Or serve on an officer, managing or general agent, or any other authorized agent

And if the agent is authorized by law, also mail a copy to Do Mullane v. Central Hanover Bank

Addresses due process - notice of lawsuit Notice must be reasonably calculated under all circumstances to apprise interested persons of the pendency of the

action and to allow them an opportunity to present their objectionso Rio Properties, Inc. v. Rio Int'l - Rule 4 doesn’t provide email summons service but auths. svc on ind. and corp. (by cross ref

to 4(h)(1)) via STATE methods…state may allow email service; Rule 5(b)(2)(E) allow email svc of OTHER pldngs and motions WITH CONSENT

Rule 5(b)(2)(E) allows email service of OTHER pleadings and motions – with CONSENT Summons is NOT included in Rule 5(b)(2)(E)

For Rule 4,there should be some effort to first effect service without court intervention But, no obligation to go through the measures outlined in 4(f)(1) or 4(f)(2) first.

FILING AN ANSWERo Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating

Motions; Waiving Defenses; Pretrial Hearing(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(A) A D must serve an answer: (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the D outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim. (C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney. (3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later. (4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.

o What effect does filing a Motion to Dismiss have on the time within D must file an answer… Motion to Dismiss stays the action until the court rules on the motion After notice of the court's decision, D has 14 days to file his answer

o Rule 8(b). Defenses; Admissions and Denials. (Responding to a Pleading)

(1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party.

(2) Denials--Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading--including the jurisdictional grounds--may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation--other than one relating to the amount of damages--is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

o Responding to a Pleading is usually the Answer Must set forth defenses and . . . Admit or deny the allegations (Failure to deny = admit); (Lack of knowledge/info = deny)

o General v. specific/Denying part of allegation MUST parse each part of each allegation, and admit or deny specifically o Zielinski v. Philadelphia Piers, Inc. (1956) – Cautionary Tale…D’s ANSWER:“denies the averments of paragraph 5.”

AFFIRMATIVE DEFENSES

o Rule 8(c) Affirmative Defenses.(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including…

This is not an exhaustive list - Ask yourself, even if all of the facts are true, are there other factors the mitigate liability?o What happens when you fail to assert an affirmative defense?

Facts are admitted when not denied in the responsive pleading. Averments (allegations) in a pleading that do not require or permit a responsive pleading are taken as denied or avoided.

PRESENTING DEFENSESo 12(b)(6): Dismiss on grounds that the suit fails to state a claim upon which relief can be granted -

Old Rule - Conley v. Gibson= Claim should not be dismissed unless it appears beyond doubt that the P can prove no set of facts in support of his claim that would entitle him to relief

New Rule - Twombly= Claim should be dismissed if p does not allege facts showing "plausible entitlement to relief' Facts alleged in complaint are considered as TRUE and viewed in the light most favorable to P (Conley v. Gibson; see

also CB page 451-452). In a 12(b)(6) motion to dismiss you are NOT testing the facts, you are just testing whether the pleading establishes a

legal claim Two types of 12(b)(6) motions

(1) failure to provide enough notice of facts – insufficient statement of claim under Rule 8(a)(2) – see Twombly(2) P has provided enough facts but is not entitled to any legal relief, even if these facts are true – see American Nurses’ Ass’n

o 12(c): Motion for Judgment on the Pleadings After the pleadings are closed - but early enough not to delay the trial - a party may move for judgment on the

pleadings. o 12(d) Presenting Matters Outside the Pleadings

If a party presents matters outside the pleadings on a Rule 12(b)(6) or Rule 12(c) motion, court treats it a summary judgment motion.

o 12(e) Motion for a more Definite Statement (MUST file before your answer because - how can you answer if you don't understand it?)

A party may move for a more definite statement if a pleading is so vague or ambiguous that the party cannot reasonably prepare a response.

Rule 12(e) motion must be made before the responsive pleading is filed and must point out the defects and details desired. (NOT ONLY what's missing, but what do you need?)

If the court orders a more definite statement, party has 14 days to cure or the court may strike the pleading or issue any other appropriate order.

o 12(f) Motion to Strike The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous

matter. The court may act:

on its own; or on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21

days after being served with the pleading.o 12(g) Joining Motions

If filing a Rule 12 motion, the moving party may join with it any other Rule 12 motions. Rule 12 motions that should have been joined are waived if not raised

Exception = Rule 12(h)(2) or 12(h)(3) – these motions/objections are preserved….o 12(h) Waiving Defenses

If a party does not raise these defenses in a motion, pleading or amendment, they are waived: lack of PJ improper venue insufficient process Insufficient service of process

These objections can be raised at any time, including trial, by motion or in a pleading: Failure to state a claim (12(b)(6)) Failure to join a party (Rule 19(b)) Objection of failure to state a defense

Subject Matter Jurisdiction is never waived – if the court lacks SMJ, court must dismiss regardless of when this is raised

o American Nurses' Association v. IL (1986) – If complaint CAN BE READ to state a colorable claim (COA) then it won’t be dismissed, even if it’s not the only way to read it, or even the most common reading. D can file for a more definitive statement(12(e)), but a 12(b)(6) will fail.

o Effect of dismissal – depends whether dismissal is WITH (cannot re-file) or WITHOUT (can re-file) prejudice o Procedural Aspects

D can raise the 12 (b) objections either in his answer or by motion But if D chooses to raise by motion, he must make the motion BEFORE filing his answer (i.e., D cannot answer and then

file MTD later) And, if raising by motion, D must pay attention to Rules (g) and(h) which govern joinder of motions and waiver

AMENDING A PLEADINGo Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

(b) Amendments During and After Trial.(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence. (2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move--at any time, even after judgment--to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.

(c) Relation Back of Amendments.(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.

o Movant - party who is asking the court for motion/amendmento Primary reasons for a change

Mistake Change Cause of Action New Info New Ds

o Forman v. Davis (1962) ****MAJOR CASE!!!

Rule 15(a) declares that leave to amend "shall be freely given when justice so requires," this mandate is to be heeded…If the underlying facts or circumstances relied upon by a P may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason such as:

Undue delay Bad faith Dilatory motive (procrastination) on the part of the movant Repeated failure to cure deficiencies by amendments previously allowed (did they let other chances pass

by?) Undue prejudice to the opposing party by virtue of allowance of the amendment Futility of amendment, etc.

the leave sought should, as the rules require, be "freely given." Of course, the grant or denial of the opportunity to amend is within the discretion of the District Court…

o Beeck v. Aquaslide 'N' Dive Corp. - The party opposing an amendment to a pleading must show undue prejudice, delay, or bad faith

o Worthington v. Wilson - The FRCP prevails over the state ruleIL rule was much more lax than the FRCP, allowing amendments to list unknown persons in complaint, thus allowing "John Doe" Def.s. BUT since it is a Federal Q case, court follows Fed Subst Law, not State Subst Law (or Pro. Law)

ENSURING TRUTHFUL ALLEGATIONSo Rule 11 – ALL COURT PAPERS (MOTIONS/PLEADINGS) NOT ORAL STATEMENTS to Opp. Counsel or Letters B/Twn Counsel

(A) Every pleading, motion and other paper must be signed by attorney (if represented), or party (if unrepresented (“pro se”)) also must include signer’s

Address Email address telephone number

pleadings generally do not need to be verified/accompanied by affidavit if not signed, the court will “strike” (disregard) unless corrected “promptly” local rules/local custom might require the inclusion of additional information

(B) by “presenting” pleading, motion, or other paper to the court whether by signing it, filing it, submitting or later advocating a position, The attorney/unrepresented party “certifies that to the best of the person's knowledge, information, and belief,

formed after an inquiry reasonable under the circumstances:” (1) not presented for an improper purpose (such as harass, delay, increase cost) (2) legal arguments are warranted by law or non-frivolous argument for changing the law (3) facts alleged have evidentiary support (4) denials of fact are warranted by the evidence

A "reasonable" pre-filing inquiry Not just an inquiry into the facts, but also the law “Reasonable” = objective standard, looking at the circumstances Factors (Kraemer): time, client input, complexity, need for discovery, etc.

(C) Sanctions (1) if after “notice and a reasonable opportunity to respond” court finds a Rule 11 violation, the court MAY

sanction individual attorneys law firms party

(2) by motion (adverse party) separate from other motions Responder has 21 days after service to withdraw/correct

This is the “safe harbor” provision court may award “prevailing party” costs

(3) or by court (sua sponte) Court must first issue order to show cause

(4) “must be limited to what suffices to deter repetition” may include nonmonetary sanctions, fine, and/or payment of costs to moving party

(5) - note some exceptions to awarding monetary sanctions

A represented party cannot be sanctioned for a violation of 11(b)(2) [= unwarranted legal arguments] (d) Inapplicable to Discovery

Those rules have their own sanctionso Safe Harbor Provision:

First give them opportunity to fix the situation through a letter If opposing counsel responds before 21 days, then you probably don't need to wait the full time period, but you may

want to, strategically, so that you can see their arguments and you can be sure you're right.o Hadges v. Yonkers Racing - Because P was not given the benefit of the “safe harbor” provision of Rule 11 of the Federal Rules

of Civil Procedure (recently amended in 1993 at the time of the case), and D did not follow the procedural requirements of Rule 11, imposition of sanctions on P is reversed.

Previously, assertions needed to be true, now they only need to be reasonable.o Rule 60. Relief from a Judgment or Order

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

JOINDER OF CLAIMSo Rule 18. Joinder of Claims

(a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.

o Joinder rules are only pleading rules; so although the pleading rules may allow the claims to be joined, separate subject matter jurisdiction determinations will have to be made for each claim to see if the court has the authority to hear those claims.

o Example: Paul (NY) sues DSX (NY) in federal district court for wrongful discharge in firing him based on his age in violation of

federal civil rights law. Paul wishes to join a claim asserting a state law conversion claim based on the company's unrelated towing and destruction of his vehicle from the company parking lot earlier this year.

Paul may join these claims under Rule 18(a), but the court will not have subject matter jurisdiction over the additional conversion claim because there is no diversity, it is a state law claim that does not involve a federal question, and the claim does not appear to qualify for supplemental jurisdiction because it does not share a common nucleus of fact with the civil rights claim that does qualify for federal question jurisdiction.

o Claimants may bring new claims even if these new claims are not related to the claims already stated but must have jxdno Joinder of claims is NEVER compulsory (always permissive), and ALWAYS requires that SMJ req. be met for each new claim

COUNTERCLAIMS AND CROSSCLAIMSo Rule 13. Counterclaim and Crossclaim

(a) Compulsory Counterclaim.(1) In General. A pleading must state as a counterclaim any claim that--at the time of its service--the pleader has against an opposing party if the claim:

(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction.

(2) Exceptions. The pleader need not state the claim if: (A) when the action was commenced, the claim was the subject of another pending action; or (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.

(b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. (g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

(h) Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.o Compulsory Counterclaims

(1) A pleading MUST state as a counterclaim any claim that - at the time of its service - the pleading the pleader has against an opposing party if the claim: (SPEAK NOW OR FOREVER HOLD YOUR PEACE)

(A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; AND (B) does not require adding another party over whom the court cannot acquire jurisdiction.

Between Rule 13(a) and (b), a D can assert any claim as a counterclaim without regard to whether it bears any relationship to the claim asserted against. MUST determine when a D has a counterclaim that it has to assert under the rules - have to if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim.

Transaction or occurrence - May be a series of many occurrences that are logically related Courts interpret to require not an absolute identity of factual backgrounds for two claims but only a logical

relationship between them Courts should give the phrase "transaction or occurrence that is the subject matter" of the suit a broad realistic

interpretation in the interest of avoiding multiplicity of suits. ***Note: It's okay to challenge federal jurisdiction for the first time on appeal, even if it’s the people who initiated the

federal jurisdiction in the first place. ***Court is far more likely to grant ancillary jurisdiction to a claim asserted by the D rather than the P because the P

chose the court in which to bring their case whereas the D was forced into the P's choice of legal forum. Usually: if it is a compulsory counterclaim

(Rule 13(a) = “arises from same transaction/occurrence”) the court will also have supplemental jurisdiction over the counterclaim

(1367(a) = “so related to claims in the action that they form part of the same case or controversy” – see also “same nucleus of operative facts”)

The consequence of failing to assert a compulsory counterclaim is that it is precluded U.S. v. Heyward Robinson

Two contracts between GC and SC; one govt. and one not D'Agostino (SC) sued Heyward (GC) for payments due; GC-H counterclaimed against SC-D for breach for failure to

pay EE liability and compensation and brought fed. claim; SC-D counterclaimed GC-H for breach for cancelling K. - SC-D got money at trial

Claims were joined at trial; GC-H claimed that federal court didn't have jurisdiction over non-govt. contract, and since both claims were joined, they must both be thrown out.

Under Rule 13 - Counterclaim is compulsory if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim BUT this does not need to be and absolute factual relationship…only a logical relationship

It was designed to prevent multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of common matters.

Claims were compulsory within the meaning of the rule - there was a close and logical relationship between the two contracting jobs

Same parties, same type of work, same time-frame Heyward had right to terminate both Ks in event of breach Heyward had right to withhold $ from one to apply to damages due for another Lump sum and progress payments Single insurance policy, etc. Heyward cold not have litigated claims against it on Navy job w/o including other job

If D’s Stelma counterclaims were compulsory [i.e., arise from same transaction or occurrence] the court will also have supp jurisdiction

o Permissive Claims A pleading MAY state as a counterclaim against an opposing party any claim that is not compulsory.

Huh? i.e., any claim that does NOT arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

o Determining Compulsory or Permissive (1) Identify P’s claim

and facts surrounding that claim (2) Identify D’s counterclaim(s)

and facts surrounding that claim Does D’s claim arise out of the same transaction or occurrence as P’s claim? Rule 13 allows parties to assert counterclaims But Rule 13 does not confer SMJ

The federal court must also have SMJ over the counterclaimo A pleading MAY state as a crossclaim any claim by one party against a coparty IF:

the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a

claim asserted in the action against the crossclaimant.o Rule 13(g) does not only apply to D's claims

If a P asserts a claim against a fellow P, § 1367 may present any obstacles to the assertion of supplemental jurisdiction over such crossclaim..

EX: If two Ps sue jointly under Rule 20, and then one P asserts a crossclaim against the other §1367(b)'s language withholding supplemental jurisdiction over certain claims by Ps against parties joined under Rule 20 may come into play.

JOINDER OF PARTIESo Rule 20. Permissive Joinder of Parties

(a) Persons Who May Join or Be Joined.(1) Ps. Persons may join in one action as Ps if:

(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all Ps will arise in the action.

(2) Ds. Persons--as well as a vessel, cargo, or other property subject to admiralty process in rem--may be joined in one action as Ds if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all Ds will arise in the action.

(3) Extent of Relief. Neither a P nor a D need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more Ps according to their rights, and against one or more Ds according to their liabilities.

(b) Protective Measures. The court may issue orders--including an order for separate trials--to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party.

o Gist - A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternate claims, as many claims as it has against an opposing party.

P (NY) sues D (NY) in fed. court based on federal discrimination law (no diversity but fed question) P joins a claim based on D's unrelated destruction of P's property Can P join two claims? NO…has to be a thread tying them all together

o Mosley v. General Motors Corp. (8 th Cir. 1974) 10 Ps joined to allege race and sex discrimination and retaliation (12 counts) D. Ct. severed each of the 12 counts and ordered separate trials for each (see Rule 42) Joinder is appropriate because the right to relief arises out of the same transaction/occurrence; all Ps alleged that they

were injured by the same general policy of discrimination which came out of the same series of transactions or occurrences AND to establish relief, court must discern same questions of fact

It is a question of law or fact common to all parties must arise in the same action Identicality of events is not required, it can be a series of events that are logically related Single trials lessen delay, expense, and inconvenience to all involved.

o MORE RULES Rule 21 allows the court to sever claims Rule 42(a) allows the court to consolidate multiple actions pending before it into a single action

THIRD PARTY PRACTICE - IMPLEADER (DONE BY A D)o Rule 14. Third-Party Practice

(a) When a Defending Party May Bring in a Third Party.(1) Timing of the Summons and Complaint. A defending party may, as third-party P, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party P must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.

(2) Third-Party D's Claims and Defenses. The person served with the summons and third-party complaint--the “third-party D”:

(A) must assert any defense against the third-party P's claim under Rule 12; (B) must assert any counterclaim against the third-party P under Rule 13(a), and may assert any counterclaim against the third-party P under Rule 13(b) or any crossclaim against another third-party D under Rule 13(g); (C) may assert against the P any defense that the third-party P has to the P's claim; and (D) may also assert against the P any claim arising out of the transaction or occurrence that is the subject matter of the P's claim against the third-party P.

(3) P's Claims Against a Third-Party D. The P may assert against the third-party D any claim arising out of the transaction or occurrence that is the subject matter of the P's claim against the third-party P. The third-party D must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g). (4) Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately. (5) Third-Party D's Claim Against a Nonparty. A third-party D may proceed under this rule against a nonparty who is or may be liable to the third-party D for all or part of any claim against it. (6) Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a third-party complaint may be in rem. In that event, a reference in this rule to the “summons” includes the warrant of arrest, and a reference to the D or third-party P includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.

(b) When a P May Bring in a Third Party. When a claim is asserted against a P, the P may bring in a third party if this rule would allow a D to do so.(c) Admiralty or Maritime Claim.

(1) Scope of Impleader. If a P asserts an admiralty or maritime claim under Rule 9(h), the D or a person who asserts a right under Supplemental Rule C(6)(a)(i) may, as a third-party P, bring in a third-party D who may be wholly or partly liable--either to the P or to the third-party P--for remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences. (2) Defending Against a Demand for Judgment for the P. The third-party P may demand judgment in the P's favor against the third-party D. In that event, the third-party D must defend under Rule 12 against the P's claim as well as the third-party P's claim; and the action proceeds as if the P had sued both the third-party D and the third-party P.

o The original D may implead a non-party into the lawsuit But only for derivative liability; a transactional relationship will not suffice The D is now acting like a P and the impleaded party is now an additional D

o Lehman v. Revolution Portfolio Originally a default on a loan from a trust. (L and R, joint trustees). L sued bank for foreclosing b/c R had duped him and bank and bank had failed to perform due diligence FDIC substituted itself for Bank, so suit became between L and FDIC, who removed it to Federal Ct. (Federal Question) FDIC counterclaimed against L for outstanding loan balance and impleaded (joined) R on three counts (1)

indemnification…reimbursement for use to pay this, (2) contribution…we may owe but you contributed in whole or in part so you owe, too, and (3) independent claim against R as guarantor…you owe us the balance because you signed an unconditional personal guarantee of the loan and the borrower defaulted.

L eventually went bankrupt, so the court stalled proceedings and allowed them to restart later FDIC pushed for judgment on their summary judgment motion and R pushed to be stricken as a party. Court dismissed

counts 1 and 2 from FDIC and dismissed R's motion…too bad, you're in. R - Claimed that because the rule only applies to derivative liability counts are not valid because L's original

claim to FDIC/Bank didn't involve damages (if they didn't have to pay, then he isn't liable to help) AND FDIC/Court - Even though claim didn't seek damages, doesn't mean that it wouldn't have resulted in damages, so

this is pointless R - L's claim had not merit, so there was not need to implead R FDIC/Court - Whether or not his claim would have succeeded is unknown so who's to say it was meritless R - If counts 1 and 2 fail, then count 3, which was joined, must fail too. R - FDIC/Court could not have brought 3d count as a stand alone claim because if those counts weren't good

then he couldn't have been impleaded FDIC/Court - Whatever! a party can implead any non-party "who is or may be liable to the third party P for all of

part of the P's claim against the third-party P 14(a). AND as for joining 1 and 2…once you have impleaded a 3d party, Rule 18(a) authorizes a third party P to

join, either as independent or as alternative claims, as many claims, legal, equitable, or maritime as the third party P has against an opposing party as long as it meets jurisdictional and venue requirements

Rule is liberal and should be allowed as long as it will not cause "undue delay or otherwise prejudice the ongoing proceedings"

o EXAMPLE: Parker (MA) sues Douglas (VT) for negligence in causing an automobile accident. Douglass asserts a third-party claim

against Tina (VT) seeking contribution on the negligence claim against him. Parker then asserts a claim against Tina for negligence in the same accident that was the basis for his claim against

Douglas. Parker also asserts a claim against Tina seeking damages for an unrelated breach of contract. May Douglass assert his claim against Tina? May Parker assert his claims against Tina under the Federal Rules? P->D (neg.) - OK; D->T (contr.) - OK; P->T (neg. for same accident); P->T (unrelated br. of k) Douglas can implead Tina - under rule 14(a); Parker may assert a joined claim against Tina for negligence under 18(a);

Parker may even assert an unrelated claim against Tina under 18(a).o Joinder may be proper under a joinder rule

But joinder rules do not confer SMJ – the court must still determine whether it has SMJ over these new parties and their claims

The claim may independently have SMJ, or we may need to look for supplemental jurisdictiono Supplemental jurisdiction may apply

But remember – 1367(b) has exceptions for diversity cases . . . Federal courts SHALL HAVE supplemental jurisdiction over:

“all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Art. III . . .”

Including “claims that involve the joinder or intervention of additional parties.” Federal courts SHALL NOT HAVE supplemental jurisdiction

§1367 (b): applies ONLY to diversity cases Prohibits supplemental jurisdiction over 2 categories of claims

(1) claims by Ps against persons joined under certain rules . . . (2) claims by persons proposed to be joined as Ps under Rules 19 or 24

No Supp Jurisdiction over CLAIMS BY PS against persons who are joined under these rules: 14 (third party Ds) - Ex. Owen Equip. v. Kroger 19 (necessary parties) 20 (permissive joinder) 24 (intervening parties)

Also prohibits suppl. jurisdiction over claims by certain proposed PS: Ps proposed to be joined as a P under Rule 19 [necessary parties]

or Ps seeking to intervene as a P under Rule 24

o EXAMPLE: Same facts as Hypo 7.3. Parker (MA) seeks $100,000 in damages in his negligence claim against Douglas (VT), while

Douglas seeks $50,000 in contribution from Tina (VT) on his third-party claim. Parker seeks $100,000 in damages on his negligence claim against Tina and $25,000 in damages on the breach of

contract claim. The action is brought in Vermont federal district court. Does the court have subject matter jurisdiction over each of these claims?

There is SMJ for Parker's claims against Douglas; There is SMJ for Douglas' claim against Tina; There is SMJ for Parker's claim against Tina for negligence; There is SMJ for P's claim against Tina for breach of contract

REQUIRED JOINDER OF PARTIESo Rule 19. Required Joinder of Parties

(a) Persons Required to Be Joined if Feasible.(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

(2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a P may be made either a D or, in a proper case, an involuntary P.

(3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.

(c) Pleading the Reasons for Nonjoinder. When asserting a claim for relief, a party must state:(1) the name, if known, of any person who is required to be joined if feasible but is not joined; and (2) the reasons for not joining that person.

(d) Exception for Class Actions. This rule is subject to Rule 23.o Basically… a person who is subject to service of process and whose joinder will not deprive the court of SMJ must be joined if

certain criteria are meto Joinder is feasible if the court has PJ and SMJ over that party (and if venue is OK)o if not feasible to join a “required” (“necessary”) person under Rule 19(a), court determines in equity and good conscience

whether action should proceed or be dismissed. Note – we are not covering the details of Rule 19(b) “indispensible” parties in this class

o Temple v. Synthes Corp (1990) - Were the doctor and hospital “necessary” parties under Rule 19(a)? The non-parties are joint tortfeasors and are joint and severally liable:

Under joint and several liability, a claimant may pursue the full amount of the obligation against any one party and can leave it to the Ds to sort out their respective proportions of liability and payment

Temple filed suit against Synthes (mfr), Dr. and Hospital for faulty plate and screw implanted into his spine Synthes filed for dismissal for failure to join necessary parties, arguing

Joinder was in the interest of judicial economy Separate litigations were prejudicial to Ds because the claims overlapped

District court ordered that suits be combined Court held that non-parties were permissive parties not compulsory – efficiency is not the type of prejudice or interest

that Rule 19(a) was designed to address; It is not necessary for all joint tortfeasors to be named as Ds in a single lawsuito EXAMPLE:

Pedro (SC) sues Laurel (NC) in North Carolina federal court to recover a stolen coin collection worth $100,000. Laurel is alleged to have stolen the collection along with his colleague, Hardy (SC), and the two currently are holding the collection in their safe deposit box.

It takes a key both from Laurel and from Hardy to open the box. Also, Laurel and Hardy claim to be the rightful joint owners of the collection and simply recovered it from Pedro who previously had stolen it from them.

Should Hardy be treated as a necessary party under Rule 19(a)? If so, is his joinder feasible? Hardy is a necessary party but joinder is not feasible

INTERVENTION

Rule 24. Intervention(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

(c) Notice and Pleading Required. A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.

o Basically...If you’re timely, you shall be allowed to intervene where you claim an interest such that if you’re left out that interest could be impaired, unless you’re already adequately represented by someone who is already there.

o BUT if existing parties are interested in mandating the joinder of a non-party, then they must avail themselves of the compulsory joinder Rule 19

o As in other joinder contexts, claims asserted by or against intervenors must satisfy SMJ requirements. If no independent basis for SMJ exists, then supplemental jurisdiction may be available under terms of 1367.

No supplemental jurisdiction over claims by Ps against persons made parties under Rule 24 o Analyze by asking:

Whether the applicant claims an interest relating to the property or transaction which is the subject of the action? Whether the claimants are so situated that the disposition of the action may, as a practical matter, impair, or impede

their ability to protect that interest. Whether their interest is not adequately represented by existing parties

o Natural Resources Defense Council v. US Nuclear Regulatory Commission – Have to have a truly impacted interest to intervene.

Court found that, since action was to stop licenses, and Kerr’s was the only one currently pending, they had the most valid “impairment” or reason to intervene, and could adequately represent everyone else who wanted licenses, too.

They were motivated as much as anyone to defend the licenses being granted…and theirs was the one that started the big broohaha

o Permissive intervention is very discretionary - Not Covered in this class

SO NOW WE'RE IN COURTDISCOVERYo Rule 26. Discovery

(b) Discovery Scope and Limits.(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). (2) Limitations on Frequency and Extent.

(A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36. (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. **********************************************************************

o ***Note - Pre-2000 - scope was any matter relevant to the subject matter involved in the pending action but the court now only makes this available after a showing of "good cause" to the court.

o Discovery Generally: Relevance - Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to

lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). Unless otherwise limited by court order , the scope of discovery is as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense . . .

— including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.

For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.

All information relevant to a claim or defense of any party is within scope BUT Privileged information is not discoverable AND Scope may be expanded by court to cover any matter relevant to the subject matter involved in the action rather than

simply a claim or defense of a party Relevant material under the rule does not have to admissible but must be reasonably calculated to lead to the

discovery of admissible evidence. There are limitations applicable that are detailed in 26(b)(2) Discovery from nonparties is more limited For any discovery request:

identify the claims/defenses in the lawsuit (i.e., the “substantive ‘ issues in the case) Identify the information requested Is it privileged? Is this information “relevant” to the claims/defenses? Is the request otherwise objectionable under Rule 26(b)(2)?

o Undue Burden EXAMPLES

Technological burden Potential loss of trust/goodwill Trade secret Cumulative and duplicative (privacy concerns)

Frequently asserted and often litigated Court will balance burden against need for info Conf. issues can be dealt with using a protective order Cost issues can be dealt with by shifting costs of production to the requesting party

o Gonzales v. Google – Substantial burden and public policy for privacy outweigh initial benefit when other materials are avail. Iissue: 50,000 URLs from Google's search index and 5,000 search entries by Google users

ATTORNEY-CLIENT PRIVELEGEo Elements

The asserted holder of the privilege is or sought to become a client; The person to whom the communication was made

is a member of the bar of a court or his or her subordinate, and in connection with this communication is acting as a lawyer

The communication relates to a fact of which the attorney was informed by his client without the presence of strangers for the purpose of securing primarily either

an opinion of law, or legal services, or assistance in some legal proceeding, and

not for the purpose of committing a crime or tort; and the privilege has been

claimed and not waived by the client

o Protects communications rather than information or facts…the client must be communicating with the attorney for the purposes of securing legal advice, and the privilege does not hold if it has been waived.

o Privilege applies to organizations, too, not just to communications with key managers. Specifically, Court held that the privilege applied to internal employee communications engaged in for the purpose of

supplying the corporate counsel with a basis for legal advice so long as the communications concerned matters within the scope of the employees' duties and was treated as confidential within the corporation.

o Attorneys keep a Privilege log WORK PRODUCT DOCTRINE - Similar to attorney-client that protects materials prepared in anticipation of litigation from being disclosed to a certain extento Rule 26(b)(3). Discovery Scope and Limits; Trial Preparation: Materials

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. (C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:

(i) a written statement that the person has signed or otherwise adopted or approved; or

(ii) a contemporaneous stenographic, mechanical, electrical, or other recording--or a transcription of it--that recites substantially verbatim the person's oral statement.

o Privileges are governed by federal law or state law in a diversity case (Erie)o "Opinion Work Product" - Rule 26(b)(3)(B) If court orders discovery of those materials [prepared in anticipation of litigation]

it MUST protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other rep. concerning the litigation.

o "Anticipation of Litigation" Some courts say protected if prepared primarily or exclusively to assist in litigation Majority of courts say that this definition is unsupported by language of the rule and follow the "prepared because of

litigation" approach - Document is deemed prepared "in anticipation of litigation" if in light of the nature of the document and the factual situation in the particular case, the document can fairly e said to have been prepare or obtained because of the prospect of litigation.

o "Substantial Need" Party must demonstrate an inability to obtain equivalent evidence without undue hardship

o Privilege Waiver Could be waived by disclosure to a 3d party (including inadvertent waiver by producing to the opposing party - so

watch out) Waiver of a privileged communication may constitute waiver of all other communications regarding the same matter

(subject matter waiver). if information is produced in discovery that is subject to a claim of privilege or protection as trial-preparation

material, the party making the claim may notify any party that received the information of the claim and the basis for it.

After being notified, a party is required to promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved.

A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party is required to preserve the information until the claim is resolved.- Rule 26(b)(5)(B)…NEW RULE

Could be waived but if it is, then it can jeopardize not only the confidentiality of the disclosed communication but the confidentiality of all communications relating to the same subject matter.

o Expert Testimony Must disclose identity of all experts that a party intends to call at trial and expert must prepare report detailing

expected testimony, basis for opinions, data, or other information considered in forming opinions, as well as qualifications, etc.

“disclosure” includes expert’s written report if the expert is: Retained or specially employed to provide expert testimony in the case OR Whose duties as the party’s employee regularly involve giving expert testimony Rule lists what needs to be in the report And gives the timing - Rule 26(a)(2)

Be careful because anything disclosed to experts in course of litigation must be disclosed if it factors into their opinions. Even material disclosed to a non-testifying expert may not be protected from discovery in exceptional circumstances.

Testifying experts are fully discoverable - Be really careful about drafts that go back and forth Rule 26 (b)(4)

(A) A party may depose any person who has been identified as a testifying expert and whose opinions may be presented at trial. [“testifying expert”]

(B) Ordinarily, a party may NOT . . . discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial [unless exceptional circumstances] [“non-testifying expert”]

DISCOVERY DEVICESo Rule 26. Duty to Disclose; General Provisions Governing Discovery

(a) Required Disclosures.(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party--who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

o All parties are required to make initial disclosures w/o waiting for a discovery request - Specific and short deadlines apply ID persons likely to have knowledge of disclosing party's claims or defenses Provide copies or description of documents/ESI/tangible things supporting claims/defenses Damage computations and supporting docs Copies of liability insurance agreements

o E-Discovery Requires that parties, without awaiting a discovery request, provide to other parties a copy of, or description by

category and location of, electronically stored information. - Rule 26(a)(1)(A)(ii) Need not provide discovery of electronically stored information from sources that the party identifies as not reasonably

accessible because of undue burden or cost. - Rule 26(b)(2)(B) On both a motion to compel discovery or for a protective order, the burden is on the responding party to show that the

information is not reasonably accessible because of undue burden or cost. Even if that showing is made, the court may nonetheless order discovery. - Rule 26 (b)(2)(B)

Parties must confer to discuss any issues relating to disclosure or discovery of electronically stored information. Including:

form in which electronically stored information should be produced - Rule 26 (f)(3)(c) Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide

electronically stored information lost as a result of the routine, good faith operation of an electronic information system. - Rule 37(e)

o American Roller v. Foster Adams Leasing Rule 26(c) authorizes a court to issue a protective order to protect a party or person from annoyance, embarrassment, P argues that evidence isn't relevant - no involvement in this transaction and in both instances, CM is one of several

investors/D's argue that testimony could give insight into intent, plan and motive and provide evidence of pattern Court says even if this is true, doesn't show how plan, intent or motive are relevant to the "claim or defense of any

party"o Rule only obligates parties to disclose documents that they may use to support it's claims or defenses (excluded if they hurt

claim)o Rule 26(f) - Discovery Conference - If you don't actually make disclosures, you make plans to do so

Initial disclosures to be made w/in 14 days of conference BUT parties can agree to a different schedule as part of their discovery conference

o Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):

(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:

(A) any designated documents or electronically stored information--including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations--stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or

(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

(b) Procedure.(1) Contents of the Request. The request:

(A) must describe with reasonable particularity each item or category of items to be inspected; (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

(C) may specify the form or forms in which electronically stored information is to be produced. (2) Responses and Objections.

(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. (B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons. (C) Objections. An objection to part of a request must specify the part and permit inspection of the rest. (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form--or if no form was specified in the request--the party must state the form or forms it intends to use. (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.

(c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.

o Types of Discovery - Requests for document production, ESI - electronically stored info, tangible things or entry onto land (Rule 34)

Any party can serve any other party a RPD (but need a Rule 45 subpoena for non-parties) Has to be items in the responding party's "possession, custody, or control" Production = To inspect, copy, test or sample Documents = Writings, drawings, graphs, charts, photos, tel. records, and other data

Written interrogatories (Rule 33) / Requests for Admission (Rule 36) Oral Depos (Rule 30) / Written Depos (Rule 31) Physical and Mental Exams of Persons (Rule 35) Non-parties (Rule 45) - Subpoena req'd to compel…add Rule 45 to each of the above rules for non-parties

o Documents/ESI must be produced “as they are kept in the usual course of business” OR organize and label them to correspond with the categories in the request - What form should ESI take (native format or converted? metadata?)

o If there is a dispute, parties must meet and confer; If they cannot resolve, they can ask the court to intervene Responding party – motion for Pr Order/Requesting party – motion to compel

INTERROGATORIES o Rule 33. Interrogatories to Parties

(a) In General.(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2). (2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.

(b) Answers and Objections.(1) Responding Party. The interrogatories must be answered:

(A) by the party to whom they are directed; or (B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.

(2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. (3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. (4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.

(5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.

(c) Use. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence.(d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:

(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.

o Interrogs GENERALLY Written questions Responding party answers under oath Can ask about facts, opinions, contentions, application of law to fact Presumptive limits [can serve 25] If they take too long/too expensive - can file objection which could lead to another motion to compel or a motion for

protective order…could produce biz records, but want to be careful, b/c what if there's too much info in there (more than they need, but enough to hurt your side?)

Remember K-I-S-S…eliminate or consolidate where you can; ask yourself what you're actually going to get from the answer and what objections your opponent will raise?

o Rule 36(a) - Requests for Admissions Similar to interrogs but CANNOT ask non-paries Admit or deny - applies to facts or application of law to the facts Ouch - If you fail to admit/deny…deemed admitted

o Rule 30 - Oral Depos (Rule 31 - Written depos are hardly used) Oral q+a's to party OR non-party under oath Recorded by stenographer Limited to 1 day of 7 hrs unless court allows add'l time Generally you object but then you keep going Can only instruct not to answer when necessary to preserve a privilege, to enforce a limitation ordered by the court, or

to present a motion (for bad faith, etc.)o Rule 35 - Physical and Mental Exams - Applies only to parties where condition of a party (or person under party's custody or

legal control) is in controversy Court order upon motion and with "good cause"

Party must affirmatively put their mental or physical cond. into issue (part of case or def.) Court must make a "discriminating application" of the rule

Notice to persons examined AND all parties Copy of rpt to examined person upon request and any examining party may request any like rpts.

o Rule 37(a)(1) - Motions to Compel On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.

The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

Purpose of sanctions? Court has discretion to make such orders “as are just” Types of sanctions?

Order that facts shall be established Ordering discovery/striking discovery Contempt, dismissal or default Attorney’s fees

(a)(3) - Specific Motions (A) to compel disclosure (B) to compel discovery response

o Preservation and Spoliation Spoliation - The destruction or significant alteration of evidence, or the failure to preserve property for another's use as

evidence in pending or reasonably foreseeable litigation. ..duty to preserve Duty to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party

should have known that the evidence may be relevant to future litigation …includes emails

May also be stat. duty to preserveo Poole ex rel. Elliot v. Textron – Major discovery abuses

Document production / overproduction Incomplete interrog answers Failure to ID corp. designee Refusal to answer depo questions Insufficient answers/objections to RFA

PROTECTIVE ORDERSo Rule 26(c) Protective Orders.

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending--or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery; (B) specifying terms, including time and place, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.

o Upon motion by party or person from whom discovery sought Certification of conference required (meet and confer) For good cause and as justice requires To protect a party or person from:

annoyance, embarrassment, oppression, undue burden or expenseo FYI - losing party may be ordered to pay expenses of motion [Rule 37(b)(5) ]o Highly discretionary

Examples: Confidentiality order Prohibit/narrow scope of the discovery Specify format in which the material/information is produced

TRIAL BY JURYo Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved

and no fact tried by a jury, shall be otherwise re-examined in any Court of the US, than according to the rules of the common law.

o Rule 38. Right to a Jury Trial; Demand(a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution--or as provided by a federal statute--is preserved to the parties inviolate.(b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by:

(1) serving the other parties with a written demand--which may be included in a pleading--no later than 14 days after the last pleading directed to the issue is served; and (2) filing the demand in accordance with Rule 5(d). (c) Specifying Issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may--within 14 days after being served with the demand or within a shorter time ordered by the court--serve a demand for a jury trial on any other or all factual issues triable by jury.(d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.

(e) Admiralty and Maritime Claims. These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h).

o Trial - Right to jury trial (Less than 2% actually go to trial vs. 11.5% that went to trial in 1962) Common law suit at law is a tort (money damages) vs. Equitable issues Assert jury trial in complaint or answer…if you don't demand it, you waive it

Suit at "at common law" - 7th Amendment Preserves the right to a jury trial to those suits that were at common law in 1791. i.e., actions at "law" (Not Equity, admiralty, or maritime)

Historical analysis, if the action did not exist in 1791- Right to jury trial, if the statute creates legal rights and remedies enforceable in a court of law [versus an equity court].

o Chauffeurs, Teamsters, and Helpers Local No. 391 v. Terry , - Right to a jury trial provided by the 7th Amend. encompasses more than the common law forms of action recognized in 1791 (when the Bill of Rights was ratified); it involves any lawsuit in which parties’ legal rights were to be determined as opposed to suits which only involve equitable rights and remedies.

1. Compare statutory action to the 18th century actions brought in the courts of England prior to the merger of the courts of law and equity; then (Not clear here, but normally) – Is there a comparable COA?

Closest to an anti-trust case; PARTLY LEGAL/PARTLY EQUITABLE COA2. Examine remedy sought to determine whether it was legal ($ tort=Jury) or equitable (Judge) in nature.

The only remaining remedy the Ps sought against the union was compensatory damages, which are the traditional legal remedy; LEGAL REMEDY

Brennan’s concurrence – Relief is most important Can Congress provide for a right to a jury trial in a statute YES / Can Congress limit the jury right by statute? NO!

JURY SELECTION/VENIRE/VOIR DIREo Rule 48 - Jury Selection

(a) Number of Jurors. A jury must begin with at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused under Rule 47(c).

(b) Verdict. Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members.

o Venire - Court randomly selects panel for jury service This is the venire panel that arrives at the courthouse From this panel, the court and the parties select the jury via voir dire

o Voir Dire - to see to speak = the questioning of prospective jurors by a judge and/or attorneys in court Used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror

to serveo 28 U.S.C. § 1865 - Statutory grounds for juror disqualification:

Non-citizen/cannot read or write/non-English speaker/felon/mentally or physically infirm For cause dismissals

Evident bias/acquainted with lawyers or parties Challenges - During voir dire the lawyers may ask the judge to excuse a juror from sitting on the case. This is called

"challenging a juror". Two types of challenges

Challenge for cause - A challenge for cause means the lawyer has a specific reason for thinking that a juror would not be able to be impartial...No limit to the number of jurors who may be excused for challenge for cause.

Peremptory challenge - Peremptory challenges do not require the lawyers to state any reason for excusing a juror... intended to allow lawyers, both prosecution and defense, to do their best to assure that the trial is fair. Peremptory challenges are limited to three per side in most cases…Each attorney exercises at END OF VOIR DIRE

JEB v. AL - Extended to gender-based strikes Purkett - OK to strike based on looks (long hair/facial hair) Religion - OK to strike based on religion MUST BE RACE NEUTRAL though - Batson clarified for crim/Edmonson added civ

o Batson v. Kentucky , was a case in which the Supreme Court ruled that a prosecutor's use of peremptory challenge—the dismissal of jurors without stating a valid cause for doing so—may not be used to exclude jurors based solely on their race. The Court ruled that this practice violated the Equal Protection Clause of the 14th Amendment.

o Edmonson v. Leesville Concrete Co., Inc. – Kennedy – racial discrimination in civil jury selection Court had never indicated discrm’n was permitted in civil trial, but holds that fed law restrains govt. not private actors.

1. Is state govt. the source of the alleged deprivation of rights? - peremptory challenges' shape a jury!

2. Is the private party, D and its counsel, acting as a "state actor"? In determining whether the Leesville was acting as a state actor, Kennedy considered three issues

i. Did the actor rely on governmental assistance? Jury selection clearly exists w/in sphere of judicial proceedings and would not be possible

without the assist. of judge and all other constituent elements of the institution. Why else would we have preemptory challenges?

ii. Was the actor performing a traditional function of government? Jury was performing a trad function of govt by serving as the fact finder in a civil trial. Jury selection similar to elections, (choosing juries…like reps at primary elections). Judge is a state actor in mediating issues Jury selection is like no other govt. function.

iii. Was the injury caused aggravated in a unique way by the incidents of governmental authority? racial discrm’n inside crtroom diminishes integrity of cts & "compounds racial insult" of discrm’n.

BUT - Whose rights were being violated? - the party can ONLY assert their own rights and interests, not the rights and interests of a 3d party

o To make an Edmonson challenge look at "neutral" explanation offered by opponent…is it pretextualo Trial Phases

Opening Statements P calls case-in-chief (P presents Witnesses/D cross-examines) P rests D may seek JMOL (Rule 50(a)(1)) If JMOL denied, D proceeds with case-in-chief D rests both parties may seek JMOL P rebuttal Closing Arguments Judge instructs jury on law (JI) Jury deliberates and renders a verdict

DIRECTED VERDICT - Now called Judgment as a Matter of Law (JMOL)o Rule 50(a) -

(a) Judgment as a Matter of Law.(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.

JURY INSTRUCTIONS / VERDICTSo Rule 51 - Jury Instructions

Court sets time to make JI requests (Rule 51(a)) Court must give parties an opportunity to object ON THE RECORD and OUT OF JURY’S HEARING to proposed JI BEFORE

instructing jury and before final jury arguments (Rule 51(b))o Verdicts

After the close of all evidence, judge instructs jury (JI) Jury retires and deliberates – confidential Rule 48 - Verdicts must be unanimous unless parties agree otherwise Deadlocked jury = mistrial = dismissal = new trial Three types:

General Verdict - Simple finding in favor of P or D Not possible to determine whether jury properly considered and resolved each of the necessary issues to

reach its result or if they simply found in favor of party based on their own instincts, emotions, or general sense of the case.

Make it more difficult to discern whether an erroneous instruction tainted the verdict when multiple grounds for a given result exist…If there are 3 bases and court's instruction on one was wrong, it will be unclear whether verdict was based on wrong one or right two.

Special Verdict (Rule 49(a)) - A special verdict in the form of a special written finding on each issue of fact…

General Verdict with Answers to Written Questions (Rule 49(b)) - Mixture of general verdict with answers to written questions on one or more issues of fact.

o Relief from Judgments Rule 60(b) - Grounds for Relief from a Final Judgment, Order, or Proceeding

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

(c) Timing and Effect of the Motion.(1) Timing - A motion under Rule 60(b) must be made within a reasonable time — and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.

o Rule 60(b) motions are rarely granted BUT a Rule 55(c)/Rule 60(b) motion to set aside a DJ is more liberally granted - But I wouldn’t want to take that risk and have to explain my default!

DEFAULT & DISMISSALo Rule 55. Default; Default Judgment

(a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.(b) Entering a Default Judgment.

(1) By the Clerk. If the P's claim is for a sum certain or a sum that can be made certain by computation, the clerk--on the P's request, with an affidavit showing the amount due--must enter judgment for that amount and costs against a D who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals--preserving any federal statutory right to a jury trial--when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter.

(c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b)

o Applies if defending party fails to plead (answer) or “otherwise defend”

e.g., a Rule 12(b) pre-answer motion to dismiss a two-step process

Rule 55(a) – clerk enters default Rule 55(b) – default judgment

(1) clerk – under limited circumstance If defending party has not appeared if amount is certain if the defaulting party is not a minor or incompetent

(2) court – in all other cases If a party has appeared, must give at least 7 days written notice of hearing on DJ At the hearing, Defending party can appear and demonstrate why court should not enter the

DJ...What arguments will work for a Def? / What type of inaction warrants a DJ? Rule 55(c) - setting aside default or DJ

The court may set aside an entry of default for good cause Was the default willful? Will setting it aside prejudice P? Does D have a meritorious defense?

and it may set aside a default judgment under Rule 60(b) Clerical mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc.

o Rule 54(c) - A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.o Rule 41 - Dismissal

(a) Voluntary Dismissal.(1) By the P.

(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the P may dismiss an action without a court order by filing:

(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared.

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the P previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the P's request only by court order, on terms that the court considers proper. If a D has pleaded a counterclaim before being served with the P's motion to dismiss, the action may be dismissed over the D's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

(b) Involuntary Dismissal; Effect. If the P fails to prosecute or to comply with these rules or a court order, a D may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits.(c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant's voluntary dismissal under Rule 41(a)(1)(A)(i) must be made:

(1) before a responsive pleading is served; or (2) if there is no responsive pleading, before evidence is introduced at a hearing or trial.

(d) Costs of a Previously Dismissed Action. If a P who previously dismissed an action in any court files an action based on or including the same claim against the same D, the court:

(1) may order the P to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the P has complied.

o Voluntary By P

May dismiss b/fore D files answer or SJ, or if all parties stipulate Usually w/o prejudice, unless P has prev. dism’sd action based on same claim-P may get only 1 bite at the apple

By court On Ps request on terms that the court considers proper Usually w/o prejudice D can object and keep the lawsuit open if D has filed a counterclaim

o Involuntary D may move to dismiss the entire action or any claim for failure of the P

Unless the court orders otherwise, or unless it's a dismissal for lack of jurisdiction or improper venue or failure to join a Rule 19 party

Such a dismissal operates as an adjudication on the merit…(dismissal W/PREJUDICE) Basis for filing - P failed to prosecute action, comply w/rules, or comply w/any order of the court

SUMMARY JUDGMENTo Recap - When does a party make a Rule 56 Summary Judgment motion?

Rule 12(b)(6) motion to dismiss attacks the sufficiency of the allegations in the complaint take all facts alleged as true

Rule 12(c) Once pleadings are closed, if parties agree on all facts and only questions of law remain, Rule 12(c) is the proper

motion

o What is "summary judgment"? SJ = a pretrial disposition, by motion, on the merits, in favor of any party, following a consideration of the pleadings and

other evidentiary materials Remember – the function of the trial and the jury in our system is to resolve FACTUAL disputes If there are no facts in dispute, no need for a trial – judge can apply law to the undisputed facts

o Rule 56 - Summary Judgment(a) By a Claiming Party. A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim.(b) By a Defending Party. A party against whom relief is sought may move, with or without supporting affidavits, for summary judgment on all or part of the claim.(c) Time for a Motion, Response, and Reply; Proceedings. - AMENDED 12/09

(1) These times apply unless a different time is set by local rule or the court orders otherwise: (A) a party may move for summary judgment at any time until 30 days after the close of all discovery; (B) a party opposing the motion must file a response within 21 days after the motion is served or a responsive pleading is due, whichever is later; and (C) the movant may file a reply within 14 days after the response is served.

(2) The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

o Anyone can bring a motion to dismiss the entire action or any claim (partial summary judgment) OR any part of any claim (again, partial summary judgment)

o Practically speaking, motion usually can't be made until discovery is subst. completed (late in proceed.)o Adickes v. S.H. Kress & Co. - Movant [Kress] had the burden of coming forward with evidence that refuted the opposing

party’s case and ONLY THEN would opposing party [Adickes] have to come forward with supporting informationo Celotex Corp. v. Catrett – Movant [Celotex] could meet SJ burden by either – Negating Ps claim OR showing that P has

inadequate evidence to support her claim…and there is no req. that the movant MUST produce materials to negate P’s claim.o Rule 56(e)(2) - What are the non-movant/opposing party's obligations?

Can’t rest on own allegations or denials in her pleadings / must set out specific facts showing a genuine issue for trial Using affidavits OR other materials and non-movant is NOT limited to using only admissible materials If she can't show genuine issue - then SJ is granted to the movant

o In Summary Moving Party - Law's on your side…you get SJ if:

If D - Show that P can't prove claim OR go ahead and disprove Ps claim If P - Prove claim with facts, affidavits or other materials (they don't have to be admissible)

Non-movant/Opposing Party - Law is not on your side…you have the burden…you get SJ if If D - Moving party failed to meet initial burden as to facts OR If P - The existence of specific facts showing that there is a genuine issue for trial

Comparison with Rule 12(b)(6),(c) Rule 12(b)(6) - Complaint only Rule 12(c) - Complaint + answer Under either, if other materials are considered, move to Rule 56

JURISDICTIONAL ANALYSIS

Analysis Were contacts casual or isolated? Specific jurisdiction requires fewer contacts. (McGee v. Int'l Life Insurance)  If it is a corporation under general jurisdiction, the minimum contacts must be especially substantial…HQ-Type

activity (Perkins v. Benguet Consul. Mining);( Helicopteros Nacionales v. Hall) Were contacts systematic and continuous? General jurisdiction requires more contacts. (Hanson v. Denckla) Did D purposefully avail itself of the benefits and protection of the forum State's laws? (purposefully directed

product into stream of commerce, if sales) **O'Conner(Worldwide VW v. Woodson); (Asahi Metal Industry Co. v. Sup. Ct.)*Brennan said only required awareness

Should D reasonably foresee that they could be haled into court in the forum State? (Kulko v. Sup. Ct.) Or has D been pulled in as a result of the unilateral activities of a third party? (Hanson v. Denckla) If it is a contract, does it meet the "Contracts-Plus" minimum contacts? Contracts alone are not sufficient. (BK v.

Rudzewicz) Are there sufficient internet contacts? (Conduct same analysis) (Inset Systems v. Instruction Set)

(Zippo Mfg v. Zippo Dot Com) - Sliding Scale A passive Web site that does little more than make information available to those who are interested in it

is not grounds for the exercise of personal jurisdiction Intermediate - Interactive web sites where a user can exchange info with the host computer. In these

cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the web site

Fully Interactive - Website accepts payment for services, etc.

FAIR PLAY AND SUBSTANTIAL JUSTICE FACTORS Burden on D to have a "compelling" argument for inconvenience (BK v. Rudzewicz)  Burden on D to show that it is unreasonable under fair play and substantial justice.  Forum State's interest in adjudicating the dispute (their money for hospitals, ambulances, etc. P's interest in obtaining convenient and effective relief Interstate judicial system's interest (practicality - where are the parties located?) Shared interests of all States (state's sovereignty) Foreign policy concerns if applicable (Asahi Metal Industry Co. v. Sup. Ct.)