my civ pro outline

8/3/2019 My Civ Pro Outline

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Civil Procedure Outline

Personal Jurisdiction

Step 1 - Long Arm Statutes

1) Gibbons v. Brown P tried to sue 2 years after D had been involved in lawsuit in foruma) A court may exercise jurisdiction over a non-resident defendant only when:

i) the state/federal government has authorized it to do so; andii) the authorization is constitutional as applied to the case in question.

2) State Legislature composes a list of the specific types of contacts that the D may have withthe forum state.

a) Doing Businessb) Causing Injury

3) Federal LAScan go to the borders of the country Rule (4)(k) See notice.a) Any contact with the sovereignb) Generally subjects parties to jurisdiction within the boundaries of the state they are

found in.

4) Unlimited Long Arm Statutesa) CA is one of the few states that gives their courts power over any persons or property

which the state can constitutionally exercise jurisdiction over.

5) Limited (or Specific) Long Arm Statutes:a) Most states specify in detail the situations in which their courts can exercise jurisdiction.b) When it comes to tortious acts: Courts are split.

i) Some courts say that the act occurred where the product was manufactured or theactual act took place.ii) Some courts say that the tort occurred where the harm occurred.

iii) ARGUE BOTH ROB!Step 2: Due Process Fairness Test Trad. Basis / Minimum Contacts1) Traditional Bases: International Shoe v. State of WA

a) Presence: Did the defendant receive the summons in the state while physically present.i) No Entrapment: Must be voluntary. D must have purposefully availed themselves of

the state. (Recd benefit from laws of the state, and foreseeable to be sued within

the forum state) ie making money, owning property.

ii) Burnham v. Superior Ct. Wife servedhusband with summons while in state.WARNING: NO MAJORITYOPINION4-4Split

Scalia Presence alone gets you to fairness, no minimum contacts necessary.

Minimum contacts is a substitute for Presence (Pennnoyer v. Neff).

Brenan Presence in the state is purposeful availment ofthe benefits ofthe state

(Shoe,Shaffer). JX is proper because of benefit/obligation trade off.

Satisfy Brennans 4and yougetScalias 4. Argue Brennans position.


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b) Domicile: Residence + Subjective intent to remain for the indefinite futurei) This can also serve for diversity 1332 jurisdiction.

c) Consent: The D consents to the action, waiver of personal jurisdiction (failing to raise infirst responsive pleading after having received effective notice). B/C the goal is fairness,

consent means that you agree to the fairness of the courts jurisdiction over you.

i) Consent by Contract: D must be aware of what they are signing.(1)Clauses: Choice of Forum

(a) Carnival Cruise Lines(i) A forum selection clause may be upheld if it appears to have reasonable

justification and does not appear to discourage litigation.

1. Justifications: limiting fora of D that could be subject to PJ in multipleplaces / simplifies pre-trial procedure for P and D / Reduced costs of

litigation are passed onto customers.

(ii) Heighten scrutiny. No fraud or overarching to get consent.(2)Choice of Law

(a) Carnival Cruise Lines(b)Burger King

ii) Consent by Implication: Appearing in court and defending w/o raising the issue of PJ(1)Shaffer D made a special appearance to challenge P.J.

iii) Consent by Waiver(1)Failure to raise an objection

(a)12(b)(2)(b)Special Appearance: Motion to Quash Service of Summons (CA).

2) TheTest: Case-by-Case Basis: Minimum Contactsa) General Jurisdiction

i) Can sue D on any claim if:(1)D is domiciled within the state(2)D has Substantial andPervasive contacts(3)D has Systematicand Continuous contacts

(a)Essential considerations to the exercise of fairnessii) Helicopertos Crash in Peru. 4 Amcnss killed, no LAS for SJX, wentafter GJX.

(1)You must exceed the amount of contacts in this case to have a show at GJX.(2)Contacts: Contract negotiated in TX, D bough 80% of helicopters from TX (money

IN not money out), D never authorized to do business in TX, never sold product

in TX, never signed contract in TX, never solicited in TX. Contract was in Spanish,

signed in Peru, and said that controversies w/b submitted to Peruvian courts.

iii) Perkins Company business conducted from Ohio,Pres sued on dividends.(1) If you can meet this level of contacts you are golden.(2)Contacts: Conduct business on behalf of company, sustained substantial bank

accounts, forum banks act as a transfer agent, salary checks and general duties

discharged from within the forum.


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b) Specific Jurisdiction Highly related, low frequency.i) General Questions:

(1)Contacts highly related to the claim?(2)Who went to Whom? Did the D reach out? (McGee/Hanson/BK)(3) Is the Ds conduct such that he should foresee being hauled into court there?

c) Purposeful Availment?Hanson / McGee/ WWVW / Burger Kingi) Foreseeable that he would be sued there?

(1)Hanson Unilateral act by third party do not create foreseeability.(2)McGee Mailing policy and collecting premiums creates foreseeability.(3)WWVW Mobile nature of a finished product does not establish foreseeability.(4)BK Reached out to headquarters by attending training, entered into a long

term and substantial contract with a business in the state.

(a) Note: Additional considerations: Burdensome on D to travel there? Onemodest purchase would not have been enough.

ii) DidtheDavail himselfto the laws and benefits ofthe state?(1)Hanson No benefits received from state where 3rd party moved.(2)McGee Took money out of the state for premiums.(3)WWVW Percentage of profit derived from a state maintaining roads thus

making a car useful in that state is not enough.

d) Real Stream of CommerceTheory(Ashai v. Superior court)i) Brennan - Reasonable, foreseeable, knowledge that the products would end up in

the market they did.

ii) OConnor Awareness Plus Substantial Connection Something More(1)The substantial connector between t the defendant and the forum state

necessary to find min. contacts must come about by an action of the defendant

purposefully directed toward the forum state.

(a) Directed advertising(b)Designing a Product for the Market(c) Marketing through an Agent.

e) Calder Effects Test (Pavolvich): If tortious conduct is directed at a party or entity orindustry in the forum state, with knowledge of the act towards the party, this can

equate to personal availment under the forum states laws.

f) In rem or Quasi in Rem: (absorbed by Shaffer): If the D owns property in the state thenthe states power over the property gives them the power over the person up to the

value of that property.

g) QIR is used to satisfy a judgment when the lawsuit is not over the thing or propertyi)

Now it is just another minimum contact.h) Shaffer v. Heitner QIR is BS, stock is notenoughto confer JX over non-resident.i) All assertions of JX must meet minimum contacts analysis. (Consent/Presence?)

i) Minimums and Limitations (McGee and Hanson)i) FOLLOW THE MONEY

(1)Where was the money made? That will show you where the min contacts teststhreshold is. (Injecting money in No; Taking money out Yes)


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(2)Benefiting by selling products in a state would add to purposeful availment.Distinction between USE (not availment, save stream of commerce) and Sale.

(3)Unilateral acts do NOT count as purposeful availment.3) Other Considerations: Asahi v. Superior Court (Brennan v. OConnor)

a) Reasonableness is an Addition Consideration Only actual rule of law from Asahi.Reasonableness includes:i) Purposeful Availment

(1)Did the D take advantage of the laws of the state?(2)Did the D foresee being sued there?(3)They reach out and connect with the forum state?

(a) Brennan mere awareness that the product will reach the forum state(b)OConnor something more is required (promotion, marketing)

(i) Argue to OConnor, it will get you 8 justices.ii) Burden to theD (Burger King MN-Dtaken to FL)

(1)Asahi is in Japan, Cheng Shin is in Taiwan, the burden of the physical distanceand the submission to foreign legal system is substantial.

iii) Interest oftheForum State(1)Once Cali resident had settled his case, the remaining parties had little to do with

CA. Therefore CAs interest was slight.

iv) ThePlaintiffs Interest in obtaining relief(1)Cheng shin has not indicated that it is more convenient to litigate their

indemnification in CA court.

v) The Interstate Judicial Systems interest in obtain the mostefficient resolution ofcontroversies

(1)Neither party is a CA resident, so CAs interest is greatly diminished.vi) The shared interest ofthe several States in furthering substantive social policies.

(1)Great care and reserve should be exercised when extending our notions ofpersonal jurisdiction into the international field.

4) Defenses: KNOW THESEa) Challenging (Attacking)Personal Jurisdiciton

i) Option #1:(1)Default (do nothing, dont show up) then collateral attack (very risky, must be

very sure that you can win the judgment on P.J. because you forfeit the option to

argue on the merits)

(a) Collateral Attack: The no-show party issues a collateral attack stating that itwas not fair (due process was not satisfied, no personal or subject matter

jurisdiction). Therefore there is no power over me because the court did nothave jurisdiction over me in the first place. Judgment is impotent because

Full Faith/Credit clause only applies to valid judements.

(b)An enforcement action would take place, notice must be given to allow Dtheir day in court.

(2)Full Faithand Credit Clause:(a) States uphold the rulings of other states on VALID judgments


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(i) Only if the judgment was proper and fair under Article 4 of theConstitution.

ii) Option #2(1)Direct Attack: Rule 12.

(a) Challenging personal jurisdiction ONLY file a 12(b)(2) motion on PJ. Must beraised in first responsive pleading (beware of removal petitions: some courtsconstrue that to be FRP); You can only appeal P.J. if it is in the pre-answer or

answer; otherwise it is waived.

(i) 12(b)(2-5) Must be in first responsive pleading. If not the rights arewaived.

iii)Option #3(1)Special Hearing: Only in personam (in state only). I am coming into fight the P.J.

count only. You do not subject yourself to in personam jurisdiction.

(2)Limited Appearance: Same only it pertains to In-rem suits.(3)General Appearance: IF YOU ARGUE ANY OF THE SUBSTANTIVE MERITS OF THE

CASE, YOU HAVE CONSENTED TO JURISDICTION. ONLY ARGUE P.J.

Subject Matter Jurisdiction1) Article III ofthe Constitution

a) Arising Under: Broad Construction.i) Article 3 is broadly construed to allow claims into federal court which arise under

any: US Treaty, the Constitution or Federal Statutes

ii) Fed Question can arise in the Ps complaint of the Ds answeriii) Broad construction allows for hearing in State court which may then be appealed to

SCOTUS. However, cannot start out in Federal Court.

b)

28 U.S.C. 1

331

Federal Questioni) Arising Under: Narrower Construction(1)A claim arising under a U.S. Treaty, the Constitution or Federal Statutes, but

must be on the face of the well pleaded complaint.

(a) Rule: For a federal trial or appellate court to grant subject matter jurisdictionunder federal question, the federal question must first arise in the well

pleaded complaint (Mottley).

(b)Look at the remedy. If P is to get relief, what will the remedy be based on?ii) Cannot be waived. Rule 12(b)(1) may be raised at any time, even on appeal.

c) Exclusive Jurisdictioni) ????

2) Diversity Jurisdiction 28 U.S.C. 1332a) Generally:

i) Diversity is based on the citizenship of the parties at the time the claim was filed.b) Article III

i) Broad Scope: Allows diversity but does not include amount in controversy.c) 1332(a) (1-4) Complete Diversity

i) Allow for citizens of different U.S. States; State A v. State B.


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ii) Citizens of State v. Foreign Stateiii) Citizens of State A + Alien (51) v. Citizens of State B + Alien (51)iv) Alien + State A v. State B

(1)Note: Must have complete diversity.d) Perm Res Alien Issue

i) Seen to have to domiciles for diversity purposes. If the perm res alien were to sue aforeigner this would be ok. But if a perm res alien were to sue a citizen of their

state, this would not work.

ii) The Split(1)Courts have a split on 1332(a)(3). Some feel as if all Aliens are from the 51st

state, and thus are not diverse, some feel that they dont matter because only

true blue U.S. Citizens matter.

(a) Policy: the aliens may not matter because we are not worried about theprejudice under the sovereign towards them.

(b)Trend: The modern trend is to constrict diversity (Saadeh approach).iii) Citizen of the State:

(1)Rule: For purposs of determining whether diversity JX exists, a person is acitizen of the state in which he or she is domiciled. For adults, domicile is

established by physical presence in a place in connection with a certain state of

mind concerning ones intent to remain there. (Redner v. Sanders)

(a) Domicile: Residence, plus the subjective intent to remain for the indefinitefuture. (Hawkings v. Masters Farms -)

(i) Ways to establish (Objective Evidence)1. Drivers License, Registered to Vote, House, Bank Account, Job.

iv) 1332(b) Amount in Question(1)Currently the amount in question is $75,000.01 to meet the requirements for

diversity jurisdiction.(2)Must be exclusive of interests and costs.(3)Courts will only reject the amount if, from the face of the complaint, it is a legal

certainty that the P could not recover that amount.

(4)Determining that Amount: when the remedy is not pecuniary.(a) Injunctive relief

(i) How much is the injunction worth to the P(ii) How much would it cost to get the D to stop his actions from the POV of

P.

(iii)What would the cost be to D.v)

1332(c) Domicile for Corporations(1)Corporations can have two domiciles:

(a) Place of incorporation(b)Principle Place of Business Only one of these

(i) Brain: HQ Decisions are made there(ii) Muscle: Where the actual work is completed(iii)Total Activities Test: Look at them combined and see which has the most

activity or carries on the most important activity.


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vi) 1332(c)(2) Citizenship for represented parties:(1)Decedents, incompetents and minors(2)Look to the citizenship of the represented party.(3) Insurer v. Insured? Look at the domicile of the person insured.

Supplemental Jurisdiction 28 U.S.C. 13671) General

a) First step, look at the main claim (anchor), is it 1331 or 1332?b) The anchor is used to supply the lacking SMJX for additional claims.c) When trying to supplement jurisdiction for a joined claim, go down the rule like a

funnel.

d) Remember Supplemental,there must be morethan ONE claim.2) 1367(a)

a) Expressly extends federal jurisdiction from the anchor claims within the originaljurisdiction of the federal court to supplemental claims that are so relatedthat they

form part of the same case of controversy under article III of the Constittion

i) Leaves the scope for the exercise of 1367 over transactionally unrelated but logicallyrelated claims in rare cases where that may be appropriate.b) BasicProcess

i) Is there an anchor for an the existing claim? Yes Proceedii) Are there additional claims that are part of the same case or controversy as the

main claim? Yes? Proceed to (b) for diversity and (c) for federal question cases.

3) 1367(b)Diversity Anchora) For claims arising under 1332 in which the ORIGINAL P brings an additional claim, if the

joinder claim destroys diversity, the claim cannot be added.

4) 1367(c)Federal Question Anchora) Even if all other prongs are met, the court has in its discretion the power to not hear the

supplemental claim when;

i) the claim raises a novel or complex issue of State lawii) The sub claim dominates the others and there is no original jurisdiction over it (tail

wagging the dog)

iii) The district court has dismissed all other claims for which there as originaljurisdiction.

1367(a) Does it arise out of the same case or controversy ?

1367 (b) Does the joinder destroy 1332?

1367 (c) Does the courtwant to hear the case?


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5) 30 Day Grace:

a) If there is a remaining State claim, which the Fed court does not want to hear, after themain claim based on 1331/1332 is dismissed. The P must re-file the claim in State

court.b) IF the SOL has run with the state claim, the court grants the P a 30 day grace period to

re-file.

c) Policy: The reason for the SOL, is to prevent fraudulent claims, in this case the Stateclaim was not fraud. It was brought into court under the 1331/1332, which was then

dismissed. The P thought he was doing everything right, thus he should not be

penalized for going through the correct steps in the system.

6) Aggregation of Claims to Meet the Amount in Controversya) Single P against Single D may aggregate all claims (Even if unrelated)

i) P1(C1) D1 = 45,000 +ii) P1 (C2) D1 = 45, 000 = 90,000 good to go!

b) Multiple parties on either side may not aggregate their separate and distinct claims:i) P1 (C1) D1 = 45,000ii) P1 (C2) D2 = 45,000 = 2 claims STOP no good

c) Multiple Ps joint claims, common and undivided interest, do not have to be split evenly.i) P1 (C1) D1ii) P2 (C1) D1 All together = 76,000 Good to go! iii) P3 (C1) D1

d) Class Actionsi) Each P must meet the diversity Amt. in Controversy Separatelyii) Statutory amount? 5 million gets it into federal court?

7) Article III Dismissal of Main Claima) Article 3 says that at the time of filing, if the claims are to be heard together, if the main

claim gets dismissed the State claim can be remanded to State court or the Fed court

can continue to hear it.

i) Judicial economy! If the proceedings have been going on for a long time, then thecase will most likely be heard. If the proceedings have just begun the case will most

likely be remanded.

Removal 14411) Generally:

a) Only D can removeb) Must remove to the federal court in the district that the state court sitsc) Case must have been able to have been filed in Federal Court to begin with.

2) Reasons why D would wantto remove:a) There could be local prejudice against out-of-state Ds, or if in-state maybe against his

position (corporation, celebrity, etc)

b) There may be more favorable procedural rules in the Fed Ct.c) Fed court may be more familiar with that type of claim.d) Time it takes to get into court, Fed may be faster


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e) Judges bias, or why a judge is in his seat (elected v. appointed)3) Concurrent Jurisdiction

a) The claim at the state level could have originally been heard in Federal Court.4) Home Court Advantage 1441(b)Only Applies in Diversity Cases

a) If the out of state P sues the D in his home state, remove is NOT allowed. For reason(b)(i) above there is no likely prejudice against the D.

b) This is true even if there are multiple Ds. Even if one is from forum state then noremoval.

c) Removal is proper where 1332 and D is from out of state OR there is 1331 SMJ.5) Timing 1446

a) 1446(b) Removal must happen within 30 days of receipt of complaint by D.i) If the complaint is amended to where Removable is now available, D has 30 days

from the date of the amended complaint to remove.

b) 1446 (c) Allows separateand independentclaims to be removed with 1331and/or1332 claims.

i) Unconstitutional Not allowed under Art IIIii) Unnecessary 1367 can probably be argued to get separate claim included.

c) 1446 (d)-Diversity - The clock ticks from the day the complaint is filed under 1332.You cannot remove 1332 if it becomes available after the claim has been alive for 1

year.

(1)Hypo: If 1332 is gained 5 days before the year mark, do you still get the 30 daysgrace?

(a) Policy: The reason for the one year mark is to prevent more diversity claimsin Fed court. Opponents of Diversity want to use it strictly to limit the

number of actions based on 1332 in Fed Court.

(b)Counter Argument: The D should be allowed the 30 Day grace period b/cdiversity has been met within the time period and the 30 days is just anallotment to get the papers filed with the court, not an additional extension.

(c) Caterpillar Case Became removable right before one year mark. Caseerroneously removed. Courtdid not vacate judgment becausetheerror

was cured beforeadjudication.

(i) Goes against the rule. Bumbled and stumbled into result.(d)Capron P improperly invokeddiversity JDto getto federal court lost. P

appealed,pointed out12(b)(1) no diversity,and won. So no JX.

(i) In this case, diversity was never satisfied.d) 1447 (c) Remand

i)

On the basis of any defect other than lack of subject matter jurisdiction.(1)Problems that would prevent removal but would not have destroyed federaljurisdiction for example, if one or more Ds

ii)e) 1448: If service of 1 or more D is not perfected or given, P can serve process according

to Fed Rule.


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Notice ofProcess : 2 Stepprocess

Constitutional Test-5th

and14th

Amendment

1) Mullane v. Hanover Bank Notice must be reasonably calculated,under thecircumstances,toa) apprise the interested parties of the pendency of the action andb) afford them an opportunity to present their objections.c) It must be of a nature as to reasonably convey the required information andd) it must afford those interested parties a chance to make an appearance.

i) Iftheseconditions are met,constitutional requirements are satisfied.Statutory Test Rule4 (or Stateequivalent)

a) Contentsb) Issuancec) Service

1) In General.A) A summons must be served with a copy of the complaint. The plaintiff 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.A) 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.A) At the plaintiffs 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 plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. 1915 or

as a seaman under 28 U.S.C. 1916.

d) Waiver1) Request2) Failure If a D located within the US, w/o good cause, does not sign and return a waiver

requested by a P in the US, the court must impose on the D

A)

the expenses imposed in making the serviceB) The reasonable expenses, including attorneys fees, of any motion required to collect those

services expenses

(i) Good cause not to sign = incapacitation, or the argument that signing a waiverforfeits the right to contest sufficiency of process. (D can have a special hearing

to challenge this)

incapacitation, signing a waiver forfeits the right to contest sufficiency

of process.

3) Time to Answer WaiverA) From date of sending: 30 days to someone in US / 60 days to someone outside US.

4) Results5) PJ and Venue Not Waived

Waivers effect on theTimingOf Answer (1st responsivepleading):

6) 60 days for U.S. from the day waiver sent.7) 90 days for defendant outside the U.S.

Policy Reasons: Why do wehavethis?

8) Saves costs, easier9) Discourages game-playing in avoiding service10)Can be a part of getting personal jurisdiction11)Why would the d sign?


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A) Buy time. (30 -60 extra days for getting answer together)Waiver Challenges: Rule4and Rule12(b)(4-5)

12)12(b)(4)insufficiency of processA) Violation of Rule 4(a-b) the actual documents

13)12(b)(5) insufficiency of service of processA) Violation of Rule 4(c)-(n)

e) Serviceto Individual Within US1) 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:

A) following state law (no ERIE analysis) for serving a summons in an action brought in courtsof general jurisdiction in the state where the district court is located or where service is

made; or

B) doing any of the following:i delivering a copy of the summons and of the complaint to the individual personally;ii leaving a copy of each at the individuals dwelling or usual place of abode with someone

of suitable age and discretion who resides there; or

iii delivering a copy of each to an agent authorized by appointment or by law to receiveservice of process.

C) All costs incurred by the plaintiff to serve process in this manner would be transferred to thedefendant. If a 4 (d) Waiver has been sent first.

f) Servingan Individual in aForeign Country1) 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:

A) by any internationally agreed means of service that is reasonably calculated to give notice,such as those authorized by the Hague Convention on the Service Abroad of Judicial and

Extrajudicial Documents;

B)

if there is no internationally agreed means, or if an international agreement allows but doesnot specify other means, by a method that is reasonably calculated to give notice:

i as prescribed by the foreign country's law for service in that country in an action in itscourts of general jurisdiction;

ii as the foreign authority directs in response to a letter rogatory or letter of request; oriii unless prohibited by the foreign country's law, by:

(a) delivering a copy of the summons and of the complaint to the individual personally;or

(b) using any form of mail that the clerk addresses and sends to the individual and thatrequires a signed receipt; or

(c) by other means not prohibited by international agreement, as the court orders.g) Serving Minor or Incompetent

1) A minor or an incompetent person in a judicial district of the United States must be served byfollowing state law for serving a summons or like process on such a defendant in an action

brought in the courts of general jurisdiction of the state where service is made.

2) A minor or an incompetent person who is not within any judicial district of the United Statesmust be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).

h) Business, Corporations or Partnerships -Unless federal law provides otherwise or the defendantswaiver 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:


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1) in a judicial district of the United States:A) in the manner prescribed by Rule 4(e)(1) for serving an individual; orB) 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 defendant; or

2) at a place not within any judicial district of the United States, in any manner prescribed by Rule4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

i) ServingtheUS or its Agenciesj) ServingaForeign Statek) Territorial Limits

1) Serving a summons or filing a waiver of service establishes personal jurisdiction over adefendant:

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

B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the UnitedStates and not more than 100 miles from where the summons was issued; or

C) when authorized by a federal statute.2) For a claim that arises under federal law, serving a summons or filing a waiver of service

establishes personal jurisdiction over a defendant if:

A) the defendant is not subject to jurisdiction in any states courts of general jurisdiction; andB) exercising jurisdiction is consistent with the United States Constitution and laws.

l) ProvingServicem) Time Limit for Service

1) If a defendant is not served within 120 days after the complaint is filed, the court on motionor on its own after notice to the plaintiff must dismiss the action without prejudice against

that defendant or order that service be made within a specified time. But if the plaintiff 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).n) ServingProperty or Assets.Service by Publication (Constructive Notice) If no other means is available.a) Additional measure allowed when

1) D is evadingb) For those whose interests or whereabouts cannot be ascertained

1) Must allow reasonable time to make appearance.ERIE DOCTRINE

1332 Claim; Or1367- Claim brought with a 1331 claim, b/c thestate claim needs to be evaluated by state law.

Pure Federal Question 1331 ClaimFederal Procedural lawFederal Substantive law

Erie Doctrine Applies hereCourt should be applying State Substantive Law &Federal Procedural LawErie helps to resolve conflicts in the law when theline between Fed procedural law and state

Non Erie (All Fed Law)There is no conflict here to be resolved.Both Federal and State Procedural and SubstantiveLaw.


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FEDERAL COURT SUBJECT MATTER JURISDICTION (Limited Jurisdiction)State Court Subject Matter Jurisdiction (General Jurisdiction)

ERIE & PRODGENY

substantive law blur

State Matter in State Court Federal Question in State CourtState Law and State Procedural

Non- Erie, no conflict in Laws

Reverse Erie: THIS IS A NONISSUE

Applying Fed Substantive Law (Fed Question)& State Procedural.When conflict Erie will help resolve.


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1) Swift v. Tyson a) If there is no federal statute or applicable state law, apply the gen com. law of the place where

court sits.b) Laws are written statutes, not common law.

2) Origins: Erie Railroad v. Tompkins Tomkins injured while walking along the railroad tracks.a) Rule: You apply the substantive law of the forum pursuant to choice of law principles (ie Swift v.

Tyson is not good law. Federal Courts must apply substantive law that is promulgated by State courts indeciding diversity issues).

b) It is unconstitutional for federal courts to find or make-up state substantive law (that power isreserved to the states).

c) Concurrence: Not unconstitutional, just a reinterpretation of Sec 1652.3) Constitutional decision or just a statutory clarification 1652

a) Congress does not have the power to make substantive law; Constitution will not allow it.4) Erie Generallya) Easy part:Always apply the procedural law of the forum (state law in state court, fed law in fed court).b) Purpose: To help curb forum shopping for substantive law & to avoid inequitable admin of laws.a) Note: That the prudent lawyer can still shop for conflicts of lawb) Rules Enabling Act 2072

i) (a) Authorizes the Supreme Court to prescribe general rules of practice & procedureii) (b) Such rules shall not abridge, enlarge, or modify any substantive right

c) Rules of Decision Act 1652 (fed common law) = in a 1332 action, the court applies State law to asubstantive issues.i) Fed Rule ofCiv Procedure Wrong, relationship or room then Substantive law.ii) Round and Round

(1) Some court say to apply conflict rules once, others say to apply it twice.2) Substantive or Procedural Step by Step Analysisa) Useful Definitions

i) Substantive Law (1) Pertains to rights and responsibilities; legal duties and remedies (Rules of Society)

ii) Procedural Law (1) Operation of the courts and the process of litigation (Rules of Lawsuits)

b) F Can the conflict between the federal and state law be harmonized??? Then both are applied.Is there a clear state substantive law and clear procedural law that do not conflict?

NO YES

YesNo.

Apply S-Sub

and F-Pro

law to case

US Constitution v.

State Law

Federal Statute v.

State Law

FRCP v. State Law Fed CL v. State CL

Can you harmonize

the conflict?

Source of Federal

Law in conflict?

Apply the harmonized

ro and state sub laws


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Federal Common Law/General Practice v. State Law -Tests:1) Hanna Test: Is a FRCP, Constitutional Law, or Statute on Point?

a) State Law Loses2) York Test: Outcome Determinative Test

a) If the federal procedural rule determines the outcome of the case, then it is considered substantive law State Law Wins.

b) Outcome determinative = This particular case for Erie purposes (ie outcome determinative with regards tothe ability pursue the litigation in that forum).

c) If you get FRCP do not apply this testi) Reagan Statute of Limitations isALWAYS substantive b/c Rule 3 has a forward looking prospective

focus; and, to hold otherwise and allow rule 3 to determine when a case was commences wouldabridge enlarge or modify the state substantive law.

3) Byrd Test: Balancing Test Federal practice of having juries decide factual questions = fed wins.a) Modified Outcome Determinative Test

i) Outcome determinative test could apply to almost any procedural law. So, modify:ii) Is state law bound up w/ the state substantive law (rights, and privileges) in question?

(1) Balance the bound up state interest against the interest of the federal court.(a) Are the Fed interest that outweigh the state interest?(b) Does the state even have a stated interest?

(2) Bound Up Test(a) How important is the state rule(b) how important is the underlying state policy with respect to making sure the state rule is

followed.(c) Does the state legislature feel the rule is necessary or important to be used.

4) Hanna v. Plumer Rule Serves wife instead of D: Ok under FRCP, not ok under Mass. Law.a) If the state law at issue conflicts with a FRCP (not just general federal practice [Erie, York, Bird])i) Federal rule applies over the state law pursuant to REA, unless the Federal rule cannot, abridge

enlarge or modify the state law.ii) Rule: Where there is direct rule conflict between State andFederal rules, unless the Fed rule would

lead to inequitable results or forum shopping, the federal rule will dominate pursuant to federal statute.iii) Harlans Concurrence: test for substantive law should be whether the rule would cause people to flock

to the federal court or modify peoples expectation of the law. It doesnt make sense for the federalgovernment to be able to say than anything is procedural.

5) Burlington N. R. v. Woods Fed. R. App. Proc. 38 v. AL Statute of affirmance penalty = Fed P wins.6) Stewart Org. v. Ricoh AL forum selection case law v. 1404 = Federal Practice wins.7) Gasperini v. Ctr. for Humanities NY statute v. 7th Amendment interpretation = Modify federal practiceTest Hint: If you want to get the state law to apply over the federal law, you need to make the argument thatthe source of the federal law is federal common law orfederal common practice and that state law is boundup with important state interest.8) Example:

a) Rule 8+11: Lawyer and/or the party have to sign the complaint (malpractice)b) State: State is worried that there are frivolous lawsuits so another doctor has to sign off on the complaint.c) Analysis:

i) For State: Violates REA, abridges modifies or enlarges the rights of plaintiffs as against doctors whichthe state has expressed an interest in shielding from frivolous suits.

Constitution

Wins!!!

Federal Statute

WINS!!!

FRCP wins; unless

abrid, enlg, mod

sub state rights

No Winner: Apply

tests below.


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ii) For Fed: Rule 8 and 11 say nothing about a doctor signing a complaint, there is no conflict. Harmonize:Not an exhaustive list of requirements.

Semtek v. Lockeed St. Ct. Breach of K. Removed to Federal Court. Dismissed on CA SOL. refiled on

Maryland state court which had a 3 year SOL.

y Federal common law governs the claim-preclusive effect of a dismissal by a Federal courtsitting in diversity, which in turn will apply the claim- preclusion laws of the state in which the

Federal court is located.

y Upholds the twin aims of Erie that a P should not be able to get a different result from State orFederal law; if refilling was available in State court, it should be available in Fed Court.

y Adjudication on the merits for the purposes of res judicata, 41(b)-Involuntary Dismissal,requires that the court examine and adjudicate the facts of the case and come to a final result.

1) TheThought Experiment: Federal Courts Pretending Likethey areState Courtsa) Must apply state substantive law the same way the state court would.b) Follow state statutes, state cases; unless, Fed Court is predicting State Supreme Court.c) Like a state trial court (following precedent) or the way the State Supreme Court would

(predicting precedent).

d) Is a state law binding or persuasive in a federal court diversity (1367) case?i) Binding; unless, they are acting like a State Supreme Court 1652

e) Federal Court precedent applying state law binding or persuasive in state court?i) Persuasive only.

f) Should we reopen federal cases based on state law where Fed case guessed wrong onstate law?

i) No P should have gone to state court.g) Certification

i) Ask a State Supreme Court to answer a special question about state law beingapplied in federal court.

h) Abstention

8 Steps of Erie Analysis

1. Apply the procedural law of the forum2. Apply federal substantive law in questions in 1331 cases.3. Apply state substantive law in diversity cases (and state supplemental jurisdiction)pursuant to

state conflict of law principles.

4. If state and federal law conflict, then try to harmonize the conflict (avoid having to choose betweenthe two).

5. If you are unable to harmonize, check the source of the federal law.6. U.S. Constitutional provision Federal law controls7. Look for constitutional federal statute or rule that is even arguably procedural that does not abridge

enlarge or modify Federal law wins.

8. If federal practice or common law, then do an Unguided Erir-York-Byrd outcomedeterminative/bound u balancin test


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i) Postpone the federal ruling if the state is about to decide the issue (just wait); thencourt will apply the new state precedent. (Justice delayed is justice denied).

Conflict of Law Which States Laws should be applied?1) Lex Fori: Apply the law ofthe forum

a) If there is P.J. over the D then it is fair to use that States substantive law.i) Pros

(1) Judges know their states laws; ease of administration(2)Bright line predictability(3)No game playing to work around rules.

ii) Cons(1)Leads to forum shopping

2) Multilateralism: Lex Loci Most useda) Apply the substantive law of the situs of the wrong (Where the action or omissions

happened or where the property is located).

i) Pros(1)No forum shopping(a) Because neither party can choose where the wrong took place.

ii) Cons(1)Assumes, incorrectly, that all conflict principles from state to state are the same.(2)Even if they were the same, the courts interpret laws differently.(3) Judges are not familiar with other states laws and misapply them.

iii) Support(1)Comity: Pay respect to another courts jurisdiction and sovereignty(2)Vested Rights: If the wrong happened there, then the legal remedy is tied to the

country where it emanated.

3) Unilateralism:a) What, generally, seems fair.b) Apply the law of the forum that is the place with the most significant relationship

Similar to minimum contacts analysis.

i) Pros:(1)Flexible, more realistic, approach

ii) Cons:(1)No predictability or consistency(2)Open to manipulation by skillful counsel in persuading judge.

4) Harmonizationa) Focus on the commonalities rather than differences

i) Pros(1)Governments have attempted to obtain uniformity this way(2)May also be accomplished by a rational agreement in a contract dispute that law

of the state where the contract was formed should apply.

(a) CA uses govt interest test weighs the interest of each state, or foreignstate, has in the dispute. It will also enforce choice of law provisions in

contracts but will only enforce if the law has a substantial relationship to the


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parties or their transaction, or any other reasonable basis for the parties

choice of law provision.

ii) Cons(1)Seems unrealistic to expect people to hold hands and be friends

Venue28 U.S.C. 1391 Venue: The most convenient and proper locality.

Subject Matter JX (1) (2) (3) (only if no 1 & 2)

Diversity 1391(a) Judicial district where

any D resides, if all Ds

reside in the same St.

Judicial District in

which a substantial

portion of the events

or omissions giving

rise to the claim

occurred, or a

substantial portion of

the property that is

the subject of theaction is situated.

Judicial district in

which the D is subject

to personal

jurisdiction at the

time the action is

commenced.

Fed Q 1391(b) Same as above Same as above Judicial District in

which any D may be

found.

5) 1391 (c)a) Residence of a Corp is the U.S. Judicial district where it would be subject to P.J.

i) Residence = incorporated or PPOB(1)PPB = Brain or muscle.

6) 1391 (d)a)

For a foreign D alien - venue will be in any U.S. District (Dee K)7) Judicial Districts

a) Distinct boundary lines that usually go to the boundaries of the state. ie Nevada hasone district boundary lines that co to its state borders.

b) Largely populated states have more districts ie California has 4 (North East CentralSouth)

c) Divisionsi) Districts will further be subdivided into divisions for even more convenience and

locality.

8) Transfer of Venue: UsethePublicandPrivate factorsa) A suit is brought in on judicial district, but the claim may transferred to another district

by either party, but usually the D. Transfer is improper if the court transferred from wasimproper.

i) 1404 Transfer between two proper courts. 3 rings are met; substantive law of thefirst court/forum applies.

ii) 1406 Transfer from an improper court because there is no venue to a proper court,substantive law of the second court applies.


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iii) 1631 Transfer from an improper court because of a lack of personal jurisdiction toa proper court that has PJ The substantive law of the second court applies.

9) Forum Non-Conveniens (Piper Aircraft v. Reyno)a) FNC is when the D asks the court to transfer the case, it is at the courts discretion to

grant or deny.

b) FNC needs to demonstrate that the balance of the factors are sufficient to overcome theinterest of the P in choosing the forum, because, almost always, it is the D that applies

for FNC. Use the public and private factors.

i) Private Factors Wonderful-CAPE(1)Ease of access to evidence(2)Witnesses ability to appear(3)Costs of witnesses to attend trial(4)Ability to view place where facts occurred(5)Practical consideration such as costs and logistics.

ii) Public Factors(1)Court too congested(2)Local interest in adjudicating local case(3)Familiarity with applicable law(4)Avoiding problems with conflict of law or application of foreign law(5)Unfair burden on the jury

c) Special note: If the move of FMC moves the action into a kangaroo court one thatoffends traditional notions of justice, the court (exercising its discretion) will not transfer

the case.

Access to Counsel1. Civil Cases

a. Lassiter v. Department of Social Services.i. In Lassiter, the Court held that the Fourteenth Amendment does not require

an absolute right to counsel in parental rights termination proceedingsan

indigents right to appointed counsel is only recognized where physical

liberty is at stake. The Court then weighed the presumption that there is no

right to counsel against the factors set out in

b. Mathews v. Eldridge.i. The factors are: the nature of the private interests affected; the states

interest, including the fiscal and administrative burdens that the additional

procedures will entail; and the risk that the procedures used will lead to

erroneous decisions. Unless the individual's interests are strong, the state's

interests weak, and the risk of error high, due process does not require theappointment of counsel.

c. The Exceptioni. Forty states require, either statutorily or judicially, appointed counsel for

indigent parents in proceedings affecting the parent-child relationship,

including dependency, termination of parental rights, child removal, child

placement, child abuse, or child neglect proceedings. The states that do not


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have such a requirement are Delaware, Hawaii, Illinois, Michigan,

Mississippi, Nevada, Rhode Island, South Dakota, Tennessee, and Vermont.

Financing Litigation1. Generally

a. Methods ofPaymenti. Retainer: Cash paid upfront to the attorney in order to keep their services

when required.

ii. Hourly Rate: Attorney gets paid by increments of time.iii. Flat Rate: Attorney must guess at amt of time it will take to complete a case

and charges accordingly.

1. Difficult to predict litigation costs/fees.iv. Contingency Fees: Acts like basic credit, attorney extends services & and only

receives payment if awarded a settlement or award during the case.

1. Typically increases as the case proceeds, up to 50% on appeal.v. Pre-Paid: Insurance pre-pays and retains a lawyer that will fight on your

behalf.1. Potential conflict of interests between insured and insurer, incentive

just to settle instead of conduct vigorous defense.

vi. Pro-Bono: Legal Aid, provides access to the court system for the poor forfree.

b. English Rule v. American Rule (how payment is distributed)i. English Rule: requires the losing party to pay awards, and attorneys fees

(both his and the winning partys)

1. Pro:a. Encourages strong but low damage cases.b. TheP is fully compensated

2. Cona. Discourages highcost law reform cases (law changingcases)

ii. American Rule: Eachparty has to pay its own fees1. Pro:

a. Encourages law reform cases2. Con:

a. Discourages meritorious low-damage suits. Prevailing side hasto pay attorney out of the award, so P does not get full

compensation but does get court fees (Witnesses, reporters)

3. Rule 68: This is a rule that gives people the incentive to settle. Therule allows the D to make an offer to the P up to 10 days before trial.

a. If P takes the offer and case settles, they file proper offer andacceptance notices with the court and the case is dismissed

b. If P does not accept offer the case proceeds to triali. If the award is less than the offer, the offeree (P) must

pay the costs of incurred by the trial.


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4. Rule 54(d): Allows prevailing party to recover costs other thanattorneys fees.

iii. FeeShifting: Exceptions to the American Rule1. Contract for attorneys fees: Parties can always agree beforehand in

an K who will pay for attorneys fees. This provides an incentive no to

breach K.2. Common law shifting of fees: If it is found that there has been

malicious prosecution from the outset or that litigation has been

continued once it became so, courts will shift fees on their own.

3. Statute shifting fees: Legislature can pass laws that shift fees incertain kinds of cases or situations.

a. There are MANY of these.4. 1920: Permits judges ofclerks to tax:

a. Clerk and marshal feesb. transcript costsc. fees and disbursements for printing and witnessesd. fees for copies necessarily obtained for use in the casee. docket fees under 1923 andf. compensation of court appointed witnesses and interpreters

c. Contingency Feesi. Pros:

1. Allows poor to mid class client w/o $ to pay for hourly fees to getrepresentation w/o cash on hand.

2. Attorney will collect 30%-50% but only if you win.ii. Cons

1. Attorneys will only take cases that they find will be a slam dunk.Financing Agreement Whos in Risk Pool How is CostSpreadLiability Insurance Other policy holders

will be paying for

your court needs as

you for theirs

Non accident drivers

premiums subsidize

those who have

accidents

Contingency Fees Other clients of the

lawyer, some who

sill nor recover

damages (hrly or

retainer)

Fees recovered from

winning cases

subsidize costs of

losing cases.

d. Things to consider before suing:i. Possibility for award

1. Does the D have insurance or personal wealth to pay for the awardii. Will the insurance company want to control the defense?

1. The insurance company will control the defense b/c they are payingfor it?


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2. Ins. Co.s want the ability to settle if the cost is going to be higherthan they want.

a. Shows a possible conflict of interest between the insured andthe insurer, lawyer is supposed to vigorously defend the client

e. Duties to the Clienti. The lawyer has the duty to explain all costs and fees associated with

representation, including methods of payment.

f. Other ways to finance litigationi. Mandatory Pro Bono

ii. Common Fund: Shares fees among similarly situated persons rather thanshifting them to the opposing party. (class action).

Provisional RemediesUseless if too late, worse than useless if it required costs to procure. Especially when the medial

time to trial is more than 18 months.

TheProblem: Must be granted or denied before the case has been heard on the; decision isbased on incomplete information.

1) How should a court decide whether to grant temporary relief when all the relevant

information is not yet available?

2) When does the curtailment of ordinary procedures in granting provisional relief

amount to denial of due process?

The focus: On the harm that final relief cannot repair.

1292(a)(1) Allows for interlocutory appeals from orders granting, continuing, modifying,

refusing, or dissolving injunctions or refusing to dissolve or modify injunctions PIs qualify

as an injunction under this statute.pp 320 Note 7.

Appellate Review Grant or denial of a injunction is subject to reversal only fi the lower court1) Based its decision upon an erroneous legal premise

2) Abused its discretion (When a court does not apply the correct law or bases its

decision on an clearly erroneous finding of material fact.

Rule 65: Preliminary Injunction andTemporary RestrainingOrder Emergency situations

(a) Preliminary Injunction:

(1) Notice: Requires notice of the Preliminary Injunction to the adverse party. States a

hearing will be held to enjoin adverse party.

- Notice can be very informal. Not Rule 4 Notice, can be as much as calling up the

adverse party that day to inform them of the hearing and mentioning the issue.

(2) ConsolidatingHearing oftrial on the Merits: May advance trial on the merits.

(b): Temporary RestrainingOrder for 10 days Dire circumstances ONLY!

(1) - TRO may be issued w/o notice (ex parte) if:

(a): Affidavits show the moving party will suffer serious injury before the adverse

party has time to defend at a hearing; AND

(b): the movants lawyer must state in writing any efforts to give notice and why

notice should not be given at this time (helps to prevent people from hiding

funds in offshore account before they are frozen by the court.


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(3) - Expediting the Preliminary Injunction (Lasts longer than 10 days): If the order is

issued w/o notice, then you must have a hearing ASAP, the only hearings that will take

precedent over such a hearing is a hearing of like kind. The moving party must proceed

with the motion or the court will dissolve the order.

(c) Security Bond Both TRO and PI required a security bond to be paid when filed. To insure it

is a legitimate PI or TRO. The price is usually set at 2x the price of the amount of the property.Exceptions Some courts exempt a P from posting a bond when they show a hardship

(e.g. true indigence or cash needs for running a business); Other courts have allowed the

amounts to be very low (like a few hundred dollars). pp.320 Note B.

Notes: IftheP loses on the merits,theDs later action can only beagainstthe bond, not

action for separatedamages exists (Russell v. Farley). pp. 320 Note C.

Rule 64: Seizingaperson or property

This ruleallows the issuedparty to seizetheperson, money or property. Important to make

sure that money or property at issue is not hidden or destroyed.

a) Remedies Under State Law In General

1)All remedies providing for Seizing a person or property (in order to secure the

satisfaction of an ultimate judgment) are available pursuant to the state law in

which the district court sits.

2) A federal Statute governs to the extent applicable

b)Specific Kinds of remedies

1)The remedies available under this section include

i. Arrestii. Attachment

iii. Garnishmentiv. Replevinv. Sequestrationvi. Other Corresponding or Equivalent Remedies

2)These remedies are available whether or not

a) The remedy is ancillary to the state action

b) The remedy must be obtained by an independent action

Fuentes v. Shevin Doublecase, writ replevin let retailer seize stoveand stereo when dispute

over servicearose. Court foundtheFL andPNprocedures violated14th AmendmentDP.

- Prejudgment replevin statutes, whichdeprive individuals oftheir property mustcomplywithprocedural dueprocess.

- Dueprocess requires noticeandan opportunity to beheard beforeany depravation oftheir possessory interest in property takes place in a meaningful timeand meaningfulmanner.

- Thereareextraordinary situations that justify postponing noticeandthe opportunity for ahearing. Seizure ofproperty without notice or ahearing is allowed in a few limited

situations.

o First,the seizure must be necessary to securean importantgovernmental interest.o Second,there must bea special need for very promptaction.


24/53

o Third,theperson institutingthe seizure must beagovernmental official responsiblefor determiningthat it was necessary and justified in theparticular instance.

Examples: Seizure in bank failure, mislabeleddrugs,taxes, national war effort,etc.

Matthews v. Eldridge Test: Whether a individuals has received DP of law for propdeprivation

1) The private interest that will be affected by the official action

2) The risk of erroneous deprivation of such interest through the procedures used/The

probable value, of additional or substitute procedural safeguards

3) The Govts interest, including the function involved and the fiscal and administrative

burdens that the additional or substitute procedural requirement would entail.

When would the court find a PI or TRO should be granted.

c. Iglis v. ITT Antitrust BreadBelow CostPricing Case.i. Prelim Test1: Iglis v. ITTDistrict CourtTest

1. TheP will suffer irreparable injury ifthe injunctive relief is notgranted

a. Something that cannot be repaired over the time it takes toget to trial, so the injunction is needed now.

2. TheP will probably prevail on the merits.a. Issuing a TRO or PI is a big deal, must show that you are likely

to win b/c if the granted the PI or TRO could injure the D.

3. In balancingtheequities,theD will not beharmed morethan thePis helped by the injunction (no disproportionate injunctions)

a. Weigh both sides when granting the injunction4. Grantingthe injunction is in thepublic interest

a. Make sure that the public interest in the long run is served.ii. Prelim Test 2: Iglis v. ITT- Circuit CourtTest

5. Wheretheharm theP faces is sufficiently serious,there only needsto bea fair chance of succeeding on the merits ofthecase.

Remedies At Law

Substitutionary Remedy A remedy such as money damages, which serves assubstitute for the harm (where the harm is related to something other than money);

there can be a problem in valuing the harm, however. Compensatory Damages Money damages designed to put the wronged plaintiff in

the position she would have been absent defendants wrong.

LiquidatedDamages A sum certain amount of damages (or formula fordetermining a sum certain) established in a contract in the event there is a breach of

the contract; that amount, however, cannot be so much that it is actually a penalty.

PunitiveDamages Hybrid of criminal and civil law. Damages to punish a defendantand to serve as a deterrent for willful, wanton and particularly egregious behavior


25/53

(as such, in Ca, fraud, oppression, or malice). Punitive damages are paid in

addition to Ps general compensatory damages (usually available only in tort, not

contract).

Replevin Taking property form a party and giving it to a rightful owner.j Process:

A writ allowing a party to reclaim property to which they believe belongsto them, just have to file a motion with the court and show there is a

possessory interest in the property.

j Notice: Parties are entitled to notice: Due process concerns exist here too. It

requires that a person be given notice and an opportunity to be heard

BEFORE any deprivation of property takes place. It must give meaningful

time and be given in a meaningful manner.

Ejectment- Get persons or items off of certain property or out of certain areas. Equity (A jury is not available for equity actions)

Specific Remedy Ct orders a party to do something or not to do something oftentied to a specific piece of property or an objectionable, political, or economic

arrangement.

Injunction/Enjoin An injunction n. means the court enjoins v. --- orstops/prohibits a party from doing something; such as taking ownership of

property, consummating a contract or a business deal, running a segregated school

system, ect.

j Interlocutory Appeals: (Rare): 1292(a)(1)permits an interlocutory appealsfrom injunctive relief.

ContemptProceeding Cts power to make sure equitable remedies are compliedwith the disobedient party can be fined or put in jail. A court at law does not have

this power. By Substantive Branch of Law

Contractsj Rescission nullify contractj Restitution pay back or return specific items to put pty back in position b4

K.

j Reformation create, add, change, or delete erroneous contract terms sothat the contract reflects the actual agreement reached by the parties.

Propertyj QuietTitle determine rightful owner of propertyj Forced Entry Detainer landlord ejectment of tenantj Remove Cloud from Title remove subordinate names recorded on

deed/title.

Businessj ConstructiveTrust control over funds D wrongfully converted.j Accounting partnerships or corporations official declaration of assets and

liabilities (and owners equity).


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Governmentj Writ of Mandamus order for public official to do or not do something.

FRCP Remedies Declaratory Judgment (R.57/2201) Order by the court declaring the respective

rights and duties of the parties to that they can continue their legal relationship w/o

breaching any duty because they are unaware of their specific duties. It is neitherat law or equitable; instead it is a statutory remedy as area awards of

attorneys fees.

Examples and ImportantPoints Newspaper fears libel suit (Invoking 1st Amendment Freedom) injunctive relief?

y Plaintiff Defendant switch in name only.y Therefore courts are very hesitant to grant injunctive relief because the actual

suit (person suing the newspaper, would mean that the 1st Amendment freedom

was brought up in the defense to the well pleaded complaint).

Patent infringement / Injunctive Reliefy Immediate 1331 Fed Question Jurisdiction.y Value of the injunction is what it would be worth to P or what it would cost the D

to cease the activity.

The Process of Litigation: The Rulesg. Rule 3: Commencement of Action: Just states that you have to file a complaint with

the court.

h. Rule 8 Pleadings - Claims for Reliefi. (a)(1): A pleading must include: Grounds for SMJii. (a)(2): The grounds for relief

1. If no proper grounds D can file a 12(b)(6) motiona.

2 ways, incorrect law, or incorrect facts (not all elements arethere)

2. Legal theories must be stated (Negligence, Breach of K)iii. (a)(3): damages sought (prayer for relief)iv. Inconsistency of Claim Rule 8(d)(2-3)

1. Pleading in the alternative is necessary in some cases to cover bases.It is allowed.

i. Rule4: Service of Processi. D must serve P process within 120 days of filing the complaint.

j. Rule12: Pre-Answer Motionsi. If Pre-Answer motion is denied, Answer must be filed within 14 days.ii. 12(b) Motions

1. Motion to dismiss for lack of subject matter2. Motion to dismiss for lack of personal jurisdiction3. Motion to dismiss for lack of venue4. Motion to dismiss for insufficient process5. Motion to dismiss for insufficiency of service of process


27/53

6. Motion to dismiss for failure to state a claim upon which relief can begranted.

a. Even if what you say is true, there is no basis under law inwhich you can obtain relief Only in the complaint

7. Motion to dismiss for failure to join a party required under Rule 19iii. 12(h) Timing:

1. Motions in red must be filed in Ds first responsive pleading2. Motions in black may be filed at any time during lawsuit.3. 12(b)(1) can be filed for the first time on appeal.

iv. 12(h)(3) The court can move to dismiss a case for lack of subject matter JXon its own motion (sua sponte)

v. 12(c) Motion for Judgment on the Pleadings1. Takes into account the: complaint, answer and any other motions

filed at this time.

vi. 12(e) Motion for a more definite statement: for a poorly written complaint1. Rarely successfully invoked, given liberal notice pleading.

vii. 12(f) Motion to strike improper material (can strike parts of defense orpleading/affirmative defense).

k. General Notes on Pre-Answer Motionsi. E and F - Trying to get the complaint altered (both rarely invoked)ii. Good things about PRAs: Buy time, saves money, cheap fast easy, increase

burden on the P.

iii. Generally simple, only undisputed matters, if they are disputed/complex,then often denied.

iv. Denied, case goes forward: 14 days to Answerv. Granted, case ends with Dismissal w/ prejudice

l. Answer Motionsi. Responding to the Pleading: Rule 8(b)

1. In response a party musta. State in short, plain terms its defenses to each claim assertedb. Admit or deny the allegations asserted against it by an

opposing party.

2. Denials: A denial must fairly respond to the substance of theallegation

3.

General v. Specific Allegations: A party may in good faith deny allallegations even jurisdictional grounds in a general denial. Otherwise

must specifically deny allegations or generally deny all those except

those specifically admitted.

4. DenyingPart ofan Allegation: A party can admit part and deny otherpart.

5. Lack of Knowledge: May state you lack the knowledge to respond toan allegation


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6. Failingto deny Rule 8(b)(6): results in admittance.ii. Affirmative Defense: Rule 8(c): Confession and avoidance (Must be in FRP)

1. In response to a pleading, a party can file an AD including:a. Accord and satisfaction; arbitration and award; assumption of

risk, contributory negligence; discharge in bankruptcy; duress;

estoppel; failure of consideration; illegality; injury by a fellowservant; laches; license; payment; release; res judicata; statute

of frauds; statute of limitations; and waiver.

2. In response to an affirmative defense a P would file a 12(f) motion tostrike, not a 12(b)(6) motion.

3. Affirmative defense CANNOT surprise the P.iii. Counter Claims: Rule 7(a)(3)

1. Requires a reply if the counterclaim.iv. Notice of Answer: Rule5(a,b,d)

1. D must serve a copy for the answer with the Ps attorney and mustfile a copy with the court within a reasonable time.

v. Default Rule55-Entry ofDefaultDefault Judgmenta. TO be entitle to a Default Judgment, P must prove:

i. D failed to respond to Ps complaintii. Sum certain, damages were for a specific amount

1. There could be a separate hearing for damagesiii. Affidavit showing that the amt is still owediv. The Di is not an incompetent or an infant/coma

vi. D and Rule 60(b)1. D files a motion to say that Rule 55 Motion should be set aside due to

some mistake (But only if the judgment had not been rendered yet).


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Pre-Trial Timeline

Timeline

y Complaint 120 days to servey Answer or Pre-AnswerMotion

o 21 Days with regular serviceo 4d Waiver (60 days in US/90 if outside)

y If nothing Rule 55 entry ofdefault that a P will attempt to turn into a judgment.o Rule 60(b)

y If Pre-AnswerMotion Duty to answer postponed.y P has 21 days to respond to the Pre-AnswerMotiony D is often allowed by courts to Reply to Ps Response as part of a briefing. (Probably 14, but its at

the judges discretion).y Parties can set hearing on motion before trial 12(i), which Judge can set, rule ordefer to later

o Rule from the bench or take under advisement.y IfDenied - D has 14 days toAnswer to the complainty

If Granted

C

ase over.y If theAnswer contains Counterclaims, then same timing in reverse.Pleadings Filing the Complaint

Rule 3: Commencement ofAction Just states that you have to file a complaint with the court. Rule 8:Claims for Relief

(a)(1):A pleading must include: Grounds for SMJX


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(a)(2): The grounds for reliefy If no proper grounds, hit with a 12(b)(6)

j 2 ways incorrect law, or incorrect facts (not all elements are there)y Legal theories must be stated (negligence, Breach of K)

(a)(3): the damages sought (prayer for relief) Inconsistent in claim: Rule 8(d)(2)-(3) Arguing for the alternative is necessary in some cases to cover all bases; thus it is allowed.

Rule 7 Pleadings Allowed (a) Only these pleadings are allowed

(1) a complaint (2) an answer to a complaint (3) an answer to a counterclaim designated as a counter claim (4) an answer to a crossclaim (5) a third-party complaint (6) an answer to a third party complaint; and (7) if the court orders one, a reply to an answer.

Service Must serve process within 120 days of filing the complaint

Answer Motions Responding to the Pleading: 8(b)

(b)(1): In a response a party must.y (b)(1)(a) State in short, plain terms its defenses to each claim asserted;Andy (b)(1)(b) Admit ordeny the allegations asserted against it by an opposing party.

(b)(2): Denials: a denial must fairly respond to the substance of the allegation (b)(3): General v. Specific Allegations: a party may in good faith deny all allegations, even

jurisdictional grounds, in a general denial. Otherwise must specifically deny allegations orgenerally deny all those except those specifically admitted. (b)(4): Denying part of an Allegation: a party can admit part & deny the other part (b)(5): Lack of Knowledge:May state you lack the knowledge to respond to an allegation (b)(6): Failing to Deny: results in an admittance

Affirmative Defenses: Rule 8(c): (confession and avoidance) Must be plead in the first responsive pleading or waived (c)(1): In response to a pleading, a party can file anAD including:

y accord and satisfaction; arbitration and award; assumption of risk; contributory negligence;discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injuryby fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute

of limitations; and waiver. In response to an affirmative defense a P would file a 12(f) motion to strike, not a 12(b)96). Affirmative Defense Cannot Surprise the P.

Notice of Answer: Rule 5 (a, b, d) D must serve a copy for the answer with the Ps attorney and must file a copy with the court

within a reasonable time.

Amendments of Pleadings: Rule 15


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y Parties can amend or supplement their pleadings w/in 21 days before the D hasresponded, or by consent, or otherwise by court permission as justice so requires.

y Judge usually freely allows. As long as the amendment is not 1)in bad faith 2)prejudicialy This applies to ALL pleadings from beginning to end.y The earlier the amendment, the more likely it is to be granted.y 15(c)SOLand Amendment: Even if the SOL has run, if the amended claim arises out of

the same conduct, transactions, or occurrence, then amendment is considered filed at

the time of the earlier filing.

o There are different ways to calculate when statue begins and ends running. When accident occurred OR when P discovered injury or should have

discovered.

o Does not change the statute of limitations, it relates back to the originalcomplaint

1) Settlement The closer that it gets to trial, the more exposure the D has and the more incentive hehas to settle; at the beginning parties need to project strength.2) Peremptory Pleas forces pleader to take a position on the merits of the suit

3) Dilatory Pleas Response that delays the suitHaddle v. Garrison At will employee fired in order to deter participation as witness in federalcriminal trial.

y App Level - Appeals from FRCP 12(b) (6) motions are not reviewable where bindingprecedent renders the complaint without legal recourse.

y SCOTUS - Third-party interference with at-will employment relationships states a claim forrelief under42 USC Section: 1985(2); because the focus of the statute is to providepunishment for those who interfere, or attempt to interfere with federal court proceedings.

John Doe PleadingCalifornia allows for anonymous defendants.

Conley v. Gibson No facts presentedThe standard of a short plain statement is very broad; the FRCPs do not require a claimantto set out in detail the facts upon which he bases his claim. Notice pleading is madepossible by the liberal opportunity for discovery and other pretrial procedures set forwardby the FRCP/s

Exception: Conspiracy/Fraud/Defamation require that the plaintiff allege specific facts to pass muster.

Ethical Limitations and Procedure

Rule11 Responsibility to Sign Pleadings

a. Requires every paper filed with the court be signed by at least one attorney withthe signers address, email and ph #.

b. Dos and Do Nots.


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i. Lawyer must sign pledging that the pleading is not filed for some improperuse i.e. to harass or delay litigation

ii. Based on existing law, an non-frivolous arguments for extending, modifyingor reversing existing law or establishing new law.

iii. Pleadings have or will have evidentiary support.iv. Any denials of allegations are warranted.

c. Sanctionsi. if violated. Lawyer can be subject to sanctions, attorneys fees, dismissal ect

the court can in its discretion impose the sanctions (usually fine but can be

anything).

ii. 21 day safe harbor to correct: Esq get 21 days to correct any offendingpleading before the court finds out.

1. Procedure: Letter to confirm call, email to confirm letter and call(copy of relevant law and motion). When you file the R.11 motion,

append the paper-trail.

iii. Order to show cause; why an esq action does not violate rule 11(b)iv. Scope: sanctions are limited to what suffices to deter repetition of

comparable conduct by others similarly situated.

v. Limitations on Money Sanctions: A court cannot assess sanctions against theclient for his attorneys violation of 11(b)(2).

d. Discovery: Rule 11 do notapply to discovery materials under Rules 26(g)-37.Note: Cannot be sanctioned if you are not an attorney or if the improper conduct is in

words spoken, only applies to written documents.

Some have challenged that it violates 2072 REA but as it was held in:

Burlington v. Woods:Rules which incidentally affect litigants substantive rights to not violate this provision(2072) if reasonably necessary to maintain the integrity of that system of rules & Rule 11is reasonably necessary to maintain integrity of the judicial system.

Walker v. Norwest Corp Pleaded facts that tended to show that there was not complete diversity

y A court in review of Rule 11 sanctions does not abuse its discretion where the offendingcounsel has not done sufficient research to accurately plead the citizenship of parties inattempting to invoke diversity jurisdiction.

y It is not the obligation of the court to do the research that rightful falls upon counsel indetermining if complete diversity exists among parties when attempting to invoke diversity

jurisdiction.y Where the objecting party does not argue the point, a court is under no duty to inquire into

the financial circumstances of an attorney which it is sanctioning with monetary fines.

Christian v. Mattell, Inc. Stupid lawyer didnt inspect Cool Blue Barbie and refused to withdrawhis complaint on behalf of a party who believed there was patent infringement where there wasnone. Remanded for lack of specificity of what sanctions pertained to writings.


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y Rule 11 sanctions are limited to paper(s) signed in violation of the rule; Conduct indispositions, discovery meetings of counsel, oral representations at hearings and behaviorin prior proceedings do not fall within the scope of Rule 11.

y In order to support sanctions under inherent court authority, a district court must make anexplicit finding that the counsels conduct constituted or was tantamount to bad faith.

Trial Definitions -

y Pleading - The formal presentation of claims anddefenses by parties to a lawsuit. The specificpapers by which the allegations of parties to a lawsuit are presented in proper form; specifically thecomplaint of a plaintiff and the answer of a defendant plus any additional responses to thosepapers that are authorized by law.

y Motion -A written or oral application made to a court or judge to obtain a ruling or orderdirectingthat some act be done in favor of the applicant. The applicant is known as the moving party.

y Points and Authorities - The legal and factual basis for an argument in a lawsuit. A party whowants the judge to rule a particular way on a motion often must submit a memorandum of pointsand authorities, in which the party argues that the facts, statutes, and relevant precedents support

that party's position.y Affidavit Witnesss sworn statements or testimony; more official under pains and penalty of

perjury.y Order- Direction of a court or judge normally made or entered in writing, and not included in a

judgment, which determines some point ordirects some step in the proceedings.o (Proposed Order) User friendly order for a judge.

y Verdict Finding of fact by a jury.y Finding Finding of fact by a judge.y Ruling Any decision a judge makes during the course of a lawsuit.y Judgment opinion: the legal document stating the reasons for a judicial decision.

Zielinski v. Philadelphia Piers Injured fork-lifter Company denied whole paragraph whensomething ( owned forklift) in that paragraph was true, court held that denial was ineffectualas a result. Under Rule 8(b) of the Federal Rules of Civil Procedure, allegations in a complaint that are

not specifically denied are deemed admitted. You cant be misleading in your denials; complaints should contain only one allegation per

paragraph. Ends may have justified the means and the fact that the RPII was the same insurance

company makes it a little easier to digest. FSLIC v. Suggs Conservator FDIC try to collect on 2.9m loan.

When the government takes over an insolvent institution you cannot rely on affirmativedefenses involving oral misrepresentation

Punitive damages are not available as against the government w/o govt consent.Discovery Pretrial Conference Rule 16(b)

Generally: Held several times throughout a lawsuit to ID issues for trial and avoid wasting time incourt on trivial or irrelevant isues.


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Timing: The 1st conference will be held 90 days after the D appears, or 120 days after service

(whichever is first). Later conferences will establish lists of experts, witnesses, evidence, exhibits, ect. At final pretrial conference court will order a Pretrial Order that governs the trial.

Types of Discovery Three Official Categories

R.26 What you are entitled to and wheny (a)(1)(iv) Insurance coverage is a mandatory disclosure

R.27-36 How you can get what you are entitled to. R.37 What to do when the other party wont produce what you are entitled to.

Informal Discovery you can always call up and just ask questions. Mandatory Discovery Rule 26

Rule 26(a)(1)(A)(i-iv): Each party must produce initial disclosures of the following without the other partys request.

y (i) Name &Address, Phone # of each individual likely to have discoverable information.j Must use for support to claims ordefenses, unless used solely for impeachment.y (ii) Copy of ordescription of where to find all documents that P can use for support ofclaims ordefenses.j You only have to initially give your good cards; well ask for your bad ones.j If its not in your control its not yourduty to initially produce things not in your

possession; argument can be that you werent sure if a particular evidence existed.j Some judges have said that control means: readily accessible/obtainablej Only list the witnesses that YOU want to call; you can get away with not calling

someone if you can argue that they do not support a claim ordefense.j Paperdocuments, or electronic information.

y (iii) Totaling of each category ofdamages claimed (the P discloses this)j must make available for copying and inspection UNLESS privileged into or protected

from disclosure.j includes materials bearing on the nature and extent of injuries suffered

y (iv) Copy or inspection of Insurance agreement that may cover the alleged liability of theparty (usually the D produces this).

Note: Rule 26(e) requires a party to supplement or correct disclosures made under26(a)(1)(A)(i-iv) w/in a timely manner

Note: Rule 26(a)(1)(b) exempts from mandatory small claims and those in which either a well-developed record or the absence of counsel make disclosures unnecessary or potentiallyunfair.

Rule 26(f) Conference The party must confer about discovery at least 21 days before the 16(b) pretrial conference Mandatory discovery material is due at this 26(f) meeting w/in 14 days thereafter. This is where the parties will discuss the 26(a) disclosures (or bring them) and then make a

discovery plan. Witnesses and Exhibits

Rule 26 (a)(2)(C)(ii): Expert Testimony: Parties must disclose experts 90 days before trial or30 days afterdisclosure by the other side.y (1)A written report must accompany disclosure of expert witnesses detailing


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a) his opinons b) the data upon which they are based c) exhibits d) his qualifications including publications of the previous 10 years e) a list of trials at which he testified as an expert over the past 4 years, and

f) compensation This provides potential impeachment material for opposing counsel (is the expertwitness working for the client?Conflict of interest issue)

y (2) You do not have to disclose other expert consultants and they cannot besubpoenaed.

y (3) Do not have to be an initial disclosure because they are not a fact witness. Rule 26 (a)(3): Pretrial Disclosure:All witnesses and trial exhibits must be disclosed at least

30 days before trialy (1) Timing:At least 30 days before trial parties must disclose, unless intended solely for

impeachmentj a complete witness lestj witnesses whose testimony will be presented by depositionsj all documents and exhibits

y (2) Rule 26(a)(3)(B) Objections:A party may object to any of the above 14 days after theyare disclosed.

The Scope of Discovery Rule 26(b):

Anything relevant to a claim ofdefense is discoverable even if the evidence is not admissible incourt, so long as it appears reasonable calculated to lead to the discovery of admissibleevidence.

Davis v. PreCoat Metals P sought information about discrimination against differentkinds of employees.

y Discovery that is narrowly tailored to the allegations of a complaint is discoverable,even if it involves the personnel files of employees other than the parties to the suit.j Upon a showing of good cause the court may expand the scope ofdiscovery to

anything related to the subject matter Exception 26(b)(2)(C): a court must limit the extent ofdiscovery if it determines that:

y (1) it is reasonably cumulative orduplicative or can be obtained from a moreconvenient/less burdensome/less expensive source

y (2)the party seeking discovery has had ample opportunity to obtain the information bydiscovery on the action

y (3) the burden or expense of the discovery outweighs the benefit. Privilege Rule 26(b)(5)

Protects the sacred and solemn confidences (m*arriage, attorney-client, 5th amendment rightagainst incrimination)

Elementsy A communicationy In confidencey between attorney and client (employees of an attorney are considered an attorney)y For the purpose of facilitating a legal service.

Privilege Log


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y All documents removed from production must be listed in the privilege log. Waiver of Privilege

y Disclosure to a 3rd party of any privileged information, email, document, constitutes awaiver of privilege.

y If the privileged information becomes an issue in the dispute: Exp: the P cannot claimDr/Patient confidentiality regarding the severity of his injuries when he is suing based onthose injuried

y Privilege is waived if the client sues the attorney for malpracticey Privilege does not apply to ongoing crimes or future conduct. (WTF?)

Mistake of Production of Privileged Info: Rule 26(b)(5)(B)y After being notified, a party must promptly return, sequester, ordestroy the specified

information and any copies it has, must not use ordisclose the information until the claimis resolved.

Corporate Contexty Privilege applies to persons, and corporationsy Privilege will exist between an attorney and any level of employee so long as they make

statements to attorney, in confidence, and regarding their employment, for the purpose offacilitating legal service.

Attorney Work Product: Rule 26(b)(3) Documents and tangible things: prepared for in anticipation of litigation are usually protected as

attorney work product Exception: Rule 26(b)(3)(ii) An opposing party can only obtain attorney work product if it has

substantial need and cannot, without undue hardship, obtain the substantial equivalent by anytother means.y Exception: Mental impressions and trial strategy, however, are neverdiscoverable.

What is a client?y Can extend to a person or corporation

What is an attorney?y In Lawfirms:Can extend from top management middle management

lower level employees if made to a LL attorney within the context of theiremployment

y Only in the context of giving legal advice (no money need to have beenpaid)

y Must be made in to attorney in anticipation of specific ligationsy Belongs to the client and can be waived by

j publication if client talks to third party about it the communication must be made in circumstances where there

is an objective reasonable expectation of privacyj client sues for malpractice.

y Includes agents/reps for attorney and or client (secretary, investigators,associates)

y Facilitating Legal Servicesj purpose or confidential communicationj cant hide by having a lawyerdo non-legal work/task (just a fact

witness)


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j Courts disagree on tax preparation done by an attorney Hickman v. Taylor Tugboat sank, opp lawyer interviewed witnesses; protected.

Preserve privacy of opposing counsels thought processes/trial strategy no borrowingfrom the wits of your adversary or their hard work.

Rule 26(b)(3)(C) permits any party or other person to obtain their own previous writtenstatements or transcripts of an oral statement.

Protective Order - Rule 26(c) permits, the court, upon showing of good cause to issue an orderprotecting a party or person from annoyance, embarrassment, oppression, or undue burden orexpense (trade secret, Confiedntial)

The Duty to Preserve Evidence: Spoilation spoliation refers to the destruction or material alteration of evidence or the failure to preserve

property for anothers use as evidence in pending or reasonably foreseeable litigation

RULE: One has a duty to preserve material evidence when the party reasonably shouldknow that the evidence may be relevant to anticipated litigation.

y When this is impossible b/c one does not own or control the evidence, one still has anobligation to give the opposing party notice of access to the evid