totally awesome civ pro outline alfieri.pdf

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1 Civil Procedure I Outline Professor Alfieri Themes 1. Doctrine (Rules / Statutes) 2. Litigational Strategy 3. Public Policy (Fairness / Efficiency) 4. Ethics 20 Questions 1. Lawyer Identity / Role 2. Attorney / Client Relationship 3. Interviewing / Counseling 4. Fact Investigation Facts become facts when they are brought into evidence (otherwise, they are just allegations) 5. Litigation Planning a. Theory of Proof o Testimonial Evidence o Documentarial Evidence o Real Evidence o Demonstrative Evidence b. Theory of Case i. Procedural (eg. What you’ll find in ct, remedies, judge shopping, issues to pursue…) ii. Substantive claims or COA that will be brought into the case 1. Torts (Theory of Case: Negligence) a. Prove the issues i. Duty ii. Breach iii. Proximate Cause iv. Injury 6. Remedies and Fees a. Remedy at law i. Compensatory Damages ii. Punitive Damages b. Equitable Remedy i. Injunctions [R.65] ii. Declaratory Judgments [R.57 / § 2201 / § 2202] iii. Provisional Remedy [R. 64] c. Fees i. 42 USC § 1988 ii. 28 USC § 1915 iii. 28 USC § 2412 7. Pleadings [R.7] a. 3 Types of Pleadings: i. Complaint ii. Answer iii. Reply b. 4 Types of Claims: (framework for your theory of proof) i. Constitutional State & Fed ii. Statutory State & Fed iii. Regulatory State & Fed iv. Common Law (tort) State 8. Forum Shopping and Judge Shopping a. Judge shopping i. Quick rotation pick (thru IFP) ii. Wheel system b. Forum shopping i. Vertical b/w Fed and State ii. Horizontal venue: b/w counties and districts

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Civil Procedure I Outline Professor Alfieri

Themes

1. Doctrine (Rules / Statutes) 2. Litigational Strategy 3. Public Policy (Fairness / Efficiency) 4. Ethics

20 Questions

1. Lawyer Identity / Role 2. Attorney / Client Relationship 3. Interviewing / Counseling 4. Fact Investigation

à Facts become facts when they are brought into evidence (otherwise, they are just allegations) 5. Litigation Planning

a. Theory of Proof o Testimonial Evidence o Documentarial Evidence o Real Evidence o Demonstrative Evidence

b. Theory of Case i. Procedural (eg. What you’ll find in ct, remedies, judge shopping, issues to pursue…)

ii. Substantive à claims or COA that will be brought into the case 1. Torts (Theory of Case: Negligence)

a. Prove the issues i. Duty

ii. Breach iii. Proximate Cause iv. Injury

6. Remedies and Fees a. Remedy at law

i. Compensatory Damages ii. Punitive Damages

b. Equitable Remedy i. Injunctions [R.65]

ii. Declaratory Judgments [R.57 / § 2201 / § 2202] iii. Provisional Remedy [R. 64]

c. Fees i. 42 USC § 1988

ii. 28 USC § 1915 iii. 28 USC § 2412

7. Pleadings [R.7] a. 3 Types of Pleadings:

i. Complaint ii. Answer

iii. Reply b. 4 Types of Claims: (framework for your theory of proof)

i. Constitutional à State & Fed ii. Statutory à State & Fed

iii. Regulatory à State & Fed iv. Common Law (tort) à State

8. Forum Shopping and Judge Shopping a. Judge shopping

i. Quick rotation pick (thru IFP) ii. Wheel system

b. Forum shopping i. Vertical à b/w Fed and State ii. Horizontal à venue: b/w counties and districts

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Federal

Circuit Districts Counties (w/in FED) (w/in STATES)

State

9. Subject Matter Jurisdiction [§§ 1331, 1332]

Supplemental Jurisdiction [§ 1367] Removal [§ 1441]

10. Personal Jurisdiction Venue Service

11. Choice of law (ERIE) 12. Alternative Dispute Resolution 13. Pretrial Conference [R.16] 14. Discovery

à Process of getting factual allegations admitted into evidence 15. Pre-Trial Motion [R.12 / R.56] 16. Trial (Theory / Theme) 17. Trial Motion [R.50a / R.52] 18. Post Trial Motion [R.60 / R.59 / R.52 / R.50b] 19. Appeal [§ 1651 – writs / § 1291 / § 1292] 20. Judgments [R.59e / R.52b / R.60]

a. Claim preclusion b. Issue preclusion

BOOKS:

Civil Action: Jonathan Harr

Facts: Πs = 6 families (Anderson, et al.) Δs = Cryovac (div. of W.R. Grace) / Riley (div. of Beatrice Foods) / XYZ Company (ies) à Unifirst Court: Massachusetts STATE court Corporation Incorporation PPB Riley Massachusetts Massachusetts Grace Connecticut New York Beatrice Delaware Illinois Cryovac South Carolina Massachusetts Unifirst Massachusetts Massachusetts Theory of proof:

1. They had chemicals 2. Chemicals were dumped 3. Chemicals got to the ground water 4. It leaked into the wells 5. It caused the leukemia

Remedies: Ø Compensatory is difficult à how do you replace lives? Ø Declaratory remedy: for the companies to admit they were wrong and apologize Ø Writ of mandamus to clean up (costly to Δs) & Writ of prohibition to shut the wells and stop TCE

• It is easier to balance the harm v. hardship (prong of equitable relief) if you use a Writ of Prohibition • If by Writ of Mandamus, it will be harder b/c since clean up is so costly, the Co. can argue that it is not in the public

interest b/c they will have to lay off many people

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Buffalo Creek Disaster: Gerald Stern

Facts: Feb. 26, 1972, 118 killed, 523 injured, 625 Π’s including adults and children Court: West Virginia FEDERAL court Corporation Incorporation PPB Buffalo Mining Company West Virginia West Virginia Pittston Coal Company Delaware New York Theory of Case: Tort à Negligence

Ø Design 2. Maintenance 3. Construction • No Federal claims were plead but the following were considered:

- Coal Mining Health and Safety Act - Federal Navigable Streams Act

Remedies: Ø Compensatory damages to replace real & personal property and to compensate for wrongful death. Ø For Punitive damages their conduct is reprehensible b/c people are dying Ø Declaratory relief: you want to declare that Pittston is the Parent to BMC, to pierce the corp. veil (goes back to theory of case) Ø If PCC wanted a TRO or injunction to bull doze, then Notice to the Πs if required (form of notice is imp b/c mailing them

would not be adequate form of notice b/c they have no house. Hand deliver is an adequate form.

Rule 11 (Serve – Safe Harbor Provision)

(a) Signature: Pleadings, written motions, and other papers shall be signed by at least 1 attorney & must include address and telephone #. No need to accompany pleading w/ affidavit. If the signature is missing, court may strike the pleadings, unless it is signed promptly after the omission is brought to the pleader’s attention.

(b) Representations to Court: A signature implies that, to the best of the signer’s knowledge, w/ reasonable inquiry the pleading is:

(1) Made w/ proper purpose – Not to harass, cause delay (2) Warranted by Existing Law – non-frivolous argument to change existing law (3) Well grounded in Fact – likely to be reasonably supported by facts (4) Based on Evidence – Denials of factual contentions are based on evidence or reasonable based on lack of belief/info

(c) Sanctions: If R.11(b) is violated, the ct may impose sanctions of an attorney’s signers. Law firms, or parties.

(1) How to initiate Sanction: (A) By Motion:

à Motion must be made separately from other motions à Motion must state violation of R.11(b) à Motion may only be filed if the pleading is not corrected w/in 21 days = “The Safe Harbor Provision” à Court may award the winner reasonable expenses and fees incurred in making or opposing the motion. à Law firms will be held jointly liable – absent exceptional circumstances

(B) On the Court’s Initiative: If the ct initiates the sanctions, the burden of proof will fall on the pleader to show that it is not in violation.

(2) Limitation on Sanctions: Limited to what is sufficient to deter repetition of conduct. May include: Equitable damages, penalties paid to the ct, Payment for another parties fees Money damages shall not be awarded for:

(A) Violations of R.11(b)(2) (B) When initiated by the Ct [R.11(c)(1)(B)], unless the ct issues an order to show cause for either: à a voluntary dismissal (made by or against an attorney to be sanctioned) à a settlement of claims (made by or against an attorney to be sanctioned)

(3) Order: When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule & explain the basis for the sanctions imposed.

(d) Inapplicability to Discovery: This rule does not apply to disclosures, discovery request, responses, objections, and motions

subject to provisions in Rules 26 – 37. (e) The crux of Rule 11 is its implied certifications. Whenever an attorney or unrepresented party presents a matter to the court, he is

deemed to have certified things concerning that matter. If these certifications are not accurate, the party is subject to sanctions. *Note: 21 day “Safe Harbor Provision” to fix, amend, or withdraw

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Remedies & Attorney’s Fees REMEDIES

• Remedies @ law à “substitutionary remedy” i. Compensatory Damages

1. works to make a party whole 2. Theory of MITIGATION à to make less severe

a. Prudence: act as a reasonable person would (objective) b. Timely: by waiting, you just incur more loss

Ø US v. Hatahley à Navajo horses taken by US gov and sold to glue factory - establishes the purpose of compensatory damages – to make the party whole - lay testimony insufficient to award Punitive damages - Sets up Objective Standard for determining Compensatory damages:

(1) Market Value (at the time of taking) (2) Interim Value (b/w time of taking and reasonable time of replacement) (3) Mitigation (what is done to diminish damages / Loss of profits)

Ø Norfolk v. Ayers à Asbestos case, plaintiffs could collect for fear of cancer if they had actionable disease of asbestosis. - If Π’s in buffalo creek were in water they could collect, but if they were watching they could

not.

ii. Punitive Damages 1. works to punish or deter willful or reckless behavior 2. it’s a compensation for things lacking replacement value 3. 3 GUIDEPOSTS: (BMW)

a. Reprehensibility (how bad it was) b. Proportionality (Harm done / punitive damage award) c. Comprehensibility (Diff. b/w the remedy and Civil penalty)

Ø Browning-Ferris Industries v. Kelco Disposal = held that punitive damages did not violate the Eighth Amendment (cruel and unusual punishment) because due process places outer limits on such damages, however defendants did have a due process claim under the 14th amendment

Ø Honda v. Oberg à Oregon State Const. prohibited judicial review of punitive damages

- Judgment overturned – violated 14th Amendment (relates to state action due process violation) - State statute cannot bar judicial review - Imposes substantive limits on the size of punies so as not to make them excessive

(1) Haslip - trial and appellate ct review of punies began w/ this case - established need of procedural safeguards to guard against violation of

due process

Ø Cooper Industries, Inc. v. Leatherman Tool Group, Inc. = held that appellate review of punitive damages must be done de novo (in the new). This meant that the appellate court was to review the entire case & facts not just the damages award. This is expensive & time consuming. In Buffalo Creek, Pittston would be happy with such a review bc they have deeper pockets and this would make the case draw out longer. Pittston would hope that some of the plaintiffs could not wait any longer and may settle for less before the appeal was reviewed

Ø Carey v. Piphus = held that A deprivation of constitutional rights entitles a person to nominal damages, even in the absence of injuries and where a deprivation of constitutional rights causes injuries, substantial compensatory damages are appropriate, the amount of which is dependent on the type of constitutional right that is deprived. As well, although mental and emotional distress caused by the denial of procedural due process itself under 1983, the difficultly

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in proving such damages is not so great as to warrant awarding compensatory damages without proof that such injury was caused.

Ø BMW v. Gore à guy got $4 mil in punies for a bad paint job which was found grossly excessive - Sets out Grossly Excessive Standard for punitive damage award (see…3 GUIDEPOSTS) - 14th Amendment provides judicial review of Punitive damages awarded by jury

• Remittitur: Process by which a ct reduces damages awarded by a jury - Allowed in STATE and FED

• Additur: ct increases damages awarded by jury to avoid new trial - Allowed only in STATE

Ø Phillip Morris v. Williams = held that extreme reprehensibility does not negate the other 2 guidelines in BMW, all 3 are required. A jury can look to reprehensibility in determining whether to allow punitive damages, but cannot use reprehensibility to punish the defendant for non-parties who haven’t sued

Ø StatefarmàCar accident, statefarm refused to pay after saying they would. Court upheld gore

guide posts. Ø Exxon Shipping v. Baker = Held that the amount of such damages should not be excessive in that

if the compensatory damages are significant a 1:1 ratio of punitive to compensatory damages is acceptable and does not violate the due process clause.

• Statutory Damages à Damage minimums and maximums are outlined by federal or state statutes Ø Feltner v. Columbia Pictures Television = established statutory damages (before Feltner damages

were only available via common law) • Equitable Remedies à “specific remedy” – preserve the “status quo”

iii. Injunctions 1. Rule 65

a. Temporary restraining Order (TRO) i. Comes before discovery

ii. You do not need other party present to obtain iii. Have to show damage and injury are imminent and that notice was either

attempted, unnecessary or too dangerous iv. Valid for 10 days, unless extension is obtained

b. Preliminary injunction i. Must notify the other party and give them a chance to respond

ii. Thus, hearing is needed iii. Obtain while the case is pending

c. Security i. Must issue a bond at a value the court deems appropriate to compensate losing

party for costs and damages. ii. Can only issue a bond for TRO, and prelim injunction

Permanent injunction i. Granted after a final hearing on the merits

ii. It’s included in the pleading as a remedy

2. Injunctions can be issued when: (Harris) a. No other adequate remedies @ law or equity b. Risk of irreparable injury c. Probability of success (prevail on the merits) d. Δs will not be harmed more than Π is helped (balance of equity b/w injury and hardship) e. It is in the public interest

3. Injunctions can be monetized to meet amount in controversy requirements for diversity jurisdiction purposes

Ø Sigma v. Harris à injunction against an e-ee who gave away company secrets

- established 4 prongs (balance of equities) when issuing injunctions - no adequate legal remedy at law

Ø Inglis à little bakeries sued big baker for antitrust violations requesting preliminary injunction

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- Burden of Proof falls on the applicant / movant - Revlon Alternative test, reasonably certain to fair chance for prong c. - Established 5 prongs

1. Burden of Production 2. Burden of Persuasion 3. Balance of Hardship

Ø LA v. Lyons à black guy choked by police till he was unconscious - Ct denied issuing an injunction b/c

1. failure to show irreparable injury 2. no proof that all cops behaved in this manner 3. failure to establish case or controversy of him being choked again

( see…Art. III standing) Ø O’shea à To satisfy “case and controversy” plaintiff must show that he has sustained or is

immediately in danger of sustaining some direct injury as a result of the challenged official conduct. “real and immediate”

Ø Zwickler à Abstract allegations are not enough, cannot be conjectural or hypothetical must be “real and Immediate”

Ø Ebay v. Mercexchange à Four factors to determine permanent injunctive relief must be granted and applied with equal force to patent

Ø Grupo Mexicano à Π wants an injunction to prevent Δ from moving money to Mexico and rendering itself judgment proof

- Ct says it lacked the remedial power to issue the injunction 1. Breach of K, therefore remedies are limited 2. Timing / Sequence – not enough evidence of liability 3. Provisional Remedies would do.

Ø In Re Managed Care à Physicians sought a preliminary injunction against managed insurance companies from settling with plaintiffs in another federal court.

- Court granted injunction because settlements will cause irreperable hrm to Π’s and undermind MDL.

iv. Declaratory Judgments (R. 57)

1. created by 28 USC § 2201 and § 2202 2. 3 prong eligibility

a. Actual Controversy (Art. III standing) i. Injury or imminent injury (cite to lyons)

ii. Traceable iii. Redressable

b. Rights, Obligations, relationships c. Interest

Ø Wilton à Insurance case where Fed ct and State ct where hearing the same issues - Sup ct held that the Declaratory Judgment Act gives the Fed Cts discretion in deciding

whether to declare the rights of litigants. - In this case, the discretion to not grant declaratory judgment due to avoiding duplicate

hearings and form shopping was held to be valid Ø American Machine & Metals à fan patent case

- Manufacturer is seeking declaratory judgment to see if he could terminate his K w/ a patent holder and manufacture fans under the holder’s patent

- Sup Ct held that irreparable injury was not in and of itself sufficient to prevent otherwise lawful termination of a K. The only remedy available for alleged breaches is to recover damages

v. Provisional Remedies (R. 64) 1. Can be prejudgment or post-judgment seizure of property 2. Due Process Clause

a. 14th Amnd’t à applies to STATE actions b. 5th Amnd’t à applies to FEDERAL actions

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3. Examples a. Garnishment (attachment of wages) b. Attachment (custody of property) c. Liens (asserting legal right or interest in another’s property) d. Seizure (taking of another’s property) e. Sequestration (tangibles or intangibles are taken away)

4. 3 requirements a. Preseizure NOTICE and HEARING b. Some limits on judicial discretion c. Look at the private law factors

i. PRIVATE INTEREST affected by prejudgment remedy ii. RISK of erroneous deprivation

iii. Probable VALUE of safeguards iv. INTERST OF PARTIES seeking action v. GOV INTEREREST / PUBLIC INTEREST

1. Burden and cost of protection 2. How much it is going to cost society

Ø Fuentes v. Shevin à ct reviews constitutionality of state replevin statutes

- Ct held that in order to comply w/due process, NOTICE and HEARING must be provided prior to any deprivation of a property interest protected by the 14th Amendment

Ø Mettimunne v. Genetechà Patent license is not required to terminate its license agreement before seeking a declaratory judgment that the subject patent is invalid, unenforceable, or not infringed

Ø Matthews v. Aldridge à Due Process Test i. Private Interests ii. Risk of erroneous deprivation iii. Interest of party seeking the hearing iv. Probably value of additional safeguards v. Government interests

Ø Wilkinson v. Ohio State à Due Process Test for Prisoners i. Prisoner’s interest

ii. Risk of erroneous deprivation and probable value of additional safeguards iii. Government interests

Summary Chart:

(@ Law) (@ Equity)

FEES

• 2 methods: - American Rule à each side bears its own costs (prohibits fee shifting) - English Rule à “Lodestar” = rate x hrs

• Codes: - 42 USC § 1988: provides fees in Civil Rights Actions (§ 1983)

Ø prevailing party may be awarded reasonable attorney’s fees (IOW, “you lose, you pay”) Ø have to establish prevailing party and reasonable attorney’s fees

ð Note: Anti-Clan Act: 42 USC § 1983 § 2 provisions

• wrongdoer must be acting under the color of law

Compensatory Punitive Damages Injunction (TRO, preliminary, permanent)

Declaratory Judgment

Provisional

*works to make the party whole (substitutionary) *Mitigation: Pudence/Timely

*To punish or deter * 14th Ammendment *3Guidposts

1. Reprehensability 2. Proportionality 3. Comprehensability

*Can be issued when: 1. no other adequate remedies 2. Irreparable injury 3. prevail on merits 4. balance of equities 5. public interest

§§2201-2202 1. actual

controversy (Art. III)

2. relatnshps 3. Interests

1. notice 2. hearing 3. private interests 4. risk of deprivation 5. value of safeguard 6. parties / remedies 7. gov/public interest

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• deprivation of Fed. Rights - 28 USC § 1915: IFP (in forma pauperis)

Ø this is a waiver provision Ø Petitions filed in Fed Dist. Ct. that allow the waiver of a filing fee Ø this allows for JUDGE SHOPPING…

(a) There is a quick rotation of Judges for cases requiring a waiver (1) To get IFP signed, you can track the rotation (2) Sometimes you can get your IFP signed and your petition heard, depending on

the Judge (“know the system”) (b) “Wheel system” à Judge is picked randomly

- 28 USC § 2412: EAJA (Equal Action to Judgment Act) Ø Get attorney’s fees and costs when the US is a party and their position is either substantially

unjustified or b/c of bad faith conduct

Ø Evans v. Jeff D à lawyer given a settlement offer contingent on the waiver of his attorney’s fees - Sup Ct held that this is not illegal

• There is no statute or legislative history that demand a ban of settlements conditioned on fee waiver (R.68 = encourages settlements)

Ø Marek v. Chesney à guy who got less of a jury award than he was offered at settlement - Chesney then sought attorney fees under § 1988 - Sup ct held that Δs were not liable for attorney fees incurred by the Π after the officer’s pretrial offer of

settlement, where the Π recovered judgment less than offered Ø Buchannon v. West Virginia

a) Plaintiff is not allowed to recover if the desired action was brought about voluntarily on part of Defendant, instead of prevailing lawsuit

b) Rejected catalyst c) To get around this rule, P should also ask for fees, then judgment must be made and fees can be recovered

Ø Traveler’s v. PGE à Federal bankruptcy law does not disallow contract-based claims for attorney’s fees based solely on the fact that the fees were incurred litigating bankruptcy law issues.

Ø Arlington v. Murphy à Fee shifting doesn’t authorize prevailing party to recover expert fee. Ø Hensley v. Eckerhart à Where plaintiff’s fail of a claim unrelated to the successful claim they do not get the money

for it. Success of related claims the fee should not be reduced because court did not adopt each contention raised Ø Sole v. Wyner à A plaintiff who secures a preliminary injuction, then loses on the merits as the case plays out and

judgment is enteree against her has won the battle but lost the war. A preliminary injuction does not qualitfy for an award of counsel fees under statue 1988

Ø Richlin v. Chertoff à paralegal fees are a part of attorney’s fees (modern day- they separate paralegal from attorney/ but when the bill was enacted it was a given that paralegal was included in the reimbursement for the attorney’s fees.

Ø Aleyeska à Supreme Court refused to create a generalized common law doctrine shifting fees in public interest cases but the legislature is free to do so

Ø Blanchard v. Bergeon à Courts should ordinarily award fees unless special circumstances render it unjust Ø Christianburg à Court interpreted statutes to permit routine attorneys fees awards to prevailing plaintiff but no

defendant with exception that plaintiff claim was frivolous and groundless

Pleadings & Pre-Trial Motions Litigation Continuum:

§ 1291 Prov. § 1441 R. 12(e),(f) R. 52 R. 59 § 1292 Rem.

No Discovery xxxxxxxxxxxxxxxxxxxxxxxxxx Post-verdict Pre-verdict R. 11 R. 12(b),(c) R. 56 R. 50(a) R. 50(b) § 1367 § 1331 § 1332

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PLEADINGS • RULE 7: Pleadings allowed; Forms of Motions

(a) complaint, answer, reply (b) Motions and other papers:

(1) An application to the ct for an order shall be by motion, which shall be in writing, state the grounds, set forth relief (2) The rules apply to all motions (3) All motions shall be signed in accordance w/ R.11

(c) Demurrers, Pleas, Etc., Abolished à Replaced by R.12(b)(6)

• RULE 8: General Rules of Pleading (a) Claims for relief: all claims shall contain a short and plain statement showing:

(1) Statement of Cts Jurisdiction (2) Statement of Claim showing pleader is entitled to Relief (3) Demand for Judgment

(b) Defenses; Form of denials: a party shall state in short and plain terms the party’s defenses to each claim asserted…When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder…the pleader may do so by a general denial subject to the obligations set forth in R.11

(c) Affirmative Defenses (d) Effect of Failure to Deny (e) Pleading to be Concise and Direct; Consistency:

(1) Each averment of a pleading shall be simple, concise, and direct (abolishes common law form of pleadings) (2) A party may state as many separate claims or defenses as the party has regardless of consistency (can have more than

one COA) (f) Constructions of Pleadings: All pleadings shall be construed as to do substantial justice.

• RULE 9: Pleading Special Matters

(b) Fraud, Mistake, Condition of the Mind: In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity

- you need a lot of details - typically dismissed w/ prejudice - doesn’t apply to § 1983

Ø D.O.T. à car accident where Πs used a form complaint that was not specific - Form complaints are not invulnerable to a demurrer [R.12(b)(6)] - One common problem w/ the pleading of complaints : Sufficiency

• Movant still needs to state proper COA Ø Haddle v. Garrison à whistleblower e-ee was fired for co-operating w/ a criminal investigation of his e-er

- E-ee included in his complaint relief under 42 USC § 1985 - Motion to dismiss granted under R.12(b)(6) by District Ct

• Permits Δ to move to dismiss for failure to state grounds upon which relief can be granted • Ct can’t dismiss for failure to state claims (most provide leave to amend under R.15)

- Sup. Ct reversed saying firing an @will e-ee does cause injury b/c it interferes w/ the employment relationship

Ø Conley v. Gibson à Negro e-ee’s sue their union for discrimination and the union files a R.12(b)(6) - Trial and App Ct granted motion to dismiss b/c complaint failed to set forth specific facts - Sup ct reversed b/c R.8(f) says claim just needs short and concise statement and give Δ fair notice - See…Conley Presumptions

Ø Swierkiewicz à e-ee says he was fired for age discrimination (ADEA) - Sup ct held that an employment discrimination complaint need not contain specific facts, but instead must

follow R.8(a)(2) = only need a short and plain statement showing pleader is entitled to relief Ø Dura Pharmaceuticalsà Complaint’s legally insufficient when contain only allegations but does not provide notice to

defendant of relevant information (loss or causal connection, in this case) The statutes/codes seek to avoid, namely the abusive practice of filing lawsuits with only a faint hope that discovery might lead to some plasuable cause of actions. Affirms rule 8 low pleading stand, a π must show some indication of the economic loss and causal connection between the fraud and the loss

Ø Ashcroft v. Iqbalà A complaint needs to plead suffienct facts to state a claim for purpose and unlawful discrimination (Complaint fails to plead sufficient facts to state a claim for purposeful and unlawful discrimination must plead sufficient factual matter to show that defendants adopted and implemented the detention policies at issue not for neutral, investigative reason, but for the purpose of discrimination on account of race.

Ø Twombly-interpreted and applied rule 8*specificity case. Court wants more factual matter to show entitlement for relief (this is a Sherman Act case), short and plain taken to a new level, raised pleading standard

Ø Pardesà Court reversed Rule 12b6 motion on grounds that support fair notice standard in Conley

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Ø Leatherman v. Tarrantà Preserves rule 8 (rule supportive) No heightened plead stand Ø Jones v. Block à The Standard of pleadings cannot be changed by court, have to amend via legislation

• -standard of pleading cannot be raised by the court rules. • In Jones §1983 was inconsistent with the state statute • §1983 says that person has a claim if rights have been violated • statute says that the prisoner has to exhaust other means before filing a complaint

o The exhaustation of means does not need to be proven in the pleading but is a affirmative defense Ø Stradford v. Zurichà ∆’s counterclaim for fraud was insufficient. In fraud under heightened pleading Rule 9b which

requires the pleading with particularity. The case must be dismissed if ∆ doesn’t amend counter-claim to meet heightened pleading requirement

SANCTIONS

• RULE 11 o Applies to everything written, filed and argued or later advocated to the court o Does not apply to discovery (R.26) o Applies to attorneys and firms

• 28 USC § 1927: Counsel’s liability for Excessive Costs o Sanctions attorney’s who increase costs unreasonably o Overlaps with R.11(b)(1) in both unnecessary delay and needless increase of costs

• Sources of Sanction Powers: o Rule 11 o § 1927 o Inherent Powers (Chambers) o Equitable Estoppel (Layman / Zielinski) o § 1988 – Ethics o Rule 37 / Rule 26 – available only in discovery

Ø Buisness Guide v. Chromatic à Case of the fake “seeds”

• Π filed a frivolous copyright infringement action w/out investigation • Sup Ct held a represented party may be sanctioned in addition to or instead of its attorney for violating the

R.11 requirement that all info in signed documents submitted to the ct be reasonably accurate • The standard of conduct = “objective reasonableness” as to the claim

Ø Gerbode à Δ brings a R.11 motion against Π for costs and attorney fees for filing a frivolous lawsuit • Δ also moved for sanctions under 28 USC § 1927 – applying to attorney’s who multiply proceedings and

increase costs unreasonably • R.11(c) – “amended” – lets sanctions be imposed on firms as well as on attorneys who sign the offending

pleading. (note… Clients may also be sanctioned for everything EXCEPT frivolous arguments) Ø Lee v. American Airlines à the wanna-be kick-ass attorney

• The ct can sanction attorneys through its inherent powers by decreasing § 1988 fees and adjusting the lodestar

Ø Chambers à client gets in trouble for misconduct outside the courtroom • R.11 did not apply b/c the client’s wrongful actions were not filed or argued before the court b/c they were

done outside the courtroom • 28 USC § 1927 did not apply b/c the attorney did not act badly • Ct used its inherent powers to sanction the Δ for bad faith conduct (it can do this even if the state laws don’t

recognize “bad faith exceptions” to fee shifting • Inherent powers can be used to sanction either the client or attorney

Ø Business Guides v. Chromatic Commmunications Enterprises- Rule 11’s purpose is to deter baseless filings in distr court and thus, consisten with the Rule Enabling Act’s grant of authority, streamline the administration and procedure of the federal courts

Ø Christian v. Mattelà Rule 11 permits the district court to sanction an attorney for conduct regarding “pleadings[s], written motion[s], and other paper[s]” that have been signed and filed in a given case, it does not authorize sanctions for, among other things, discovery abuses or misstatements made to the court during an oral presentation”

• To impose sanctions under its inherent authority, the district court must “make an explicit finding that counsel’s conduct constituted or was tantamount to bad faith.” (Primus Auto. Fin. Serv., Inc v. Baltrase)

• Holding that misconduct committed “in an unreasonable and vexatious manner” that “multiplies the proceedings” violates § 1927(B.K.B. v. Maui Police)

• Sanctions may be imposed under the court’s inherent authority for “bad faith” actions by counsel, “which includes a broad range of willful improper conduct (Fink v. Gomez)

Ø Exparte Young à covers official and personal capacity – prosecutors are immune in court room, but policies you set in

your office are not immune

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MOTIONS • RULE 12: Defenses and Objections – When and How Presented – by Pleading or Motion – Motion for Judgment on

the Pleadings (a) When presented:

(1) Δ shall serve and answer (A) Within 20 days after being served w/ the summons and complaint (B) If service of the summons has been waived … w/in 60 days in the US … or within 90 days

outside the US (2) a party served w/ a cross-claim shall serve an answer w/in 20 days (3) (A) The US shall serve an answer w/in 60 days

(B)An officer or e-ee of the US shall serve an answer w/in 60 days (b) How Presented: the following defenses may at the option of the pleader be made by motion:

(1) Lack of SMJ (2) Lack of PJ (3) Improper VENUE (couplet w/ § 1404) (4) Insufficiency of PROCESS (summons and complaint) (5) Insufficiency of SERVICE of process (6) Failure to state a claim upon which relief can be granted (7) Failure to join a party (R.19)

(c) Motion for Judgment on the Pleadings (d) Preliminary Hearings (e) Motion for More Definate Statement: w/in 10 days (f) Motion to Strike: w/in 20 days (g) Consolidation of Defenses in Motion (h) Waiver or Preservation of Certain Defenses

Ø Rules 12(b)(1),(6), and (7) are the only ones which are NON-WAIVABLE Ø Ct may raise question of jurisdiction sua sponte (on its own)

• Pre-Trial Motions: o Rule 56 à Summary judgment o Injunctions o Declaratory Judgments o Rule 11

• Conley Presumptions: [R.12(b)(6) / R.56] 1. Presume allegations to be true 2. Facts construed most fav. to Π 3. Can’t dismiss unless proven beyond a doubt that Π can prove no set of facts

Ø Olsen v. Pratt – e-ee claims fraud for being fired when his e-er convinced him to drop out of his early retirement plan

• Allegations of fraud [R.9(b)] must be plead with particularity o should include what, when, where, how, and why

Ø Leatherman v. Tarrant County Narcotics – 2 incidents of forcible entry into homes where the manufacture of narcotics was suspected

• Πs sued under § 1983 • Dist Ct and App Ct imposed a heightened pleading standard on § 1983 civil rights claims

o They claimed a more relaxed pleading standard of R.8(a) would subject municipalities to needless discovery

• Sup Ct held that R.9(b) imposes heightened pleading standard in only 2 specific instances: Fraud & Mistake o Suits under § 1983 cannot be required to be pled w/ more particularity than the requirements of

R.8(a) Ø Zielinski – forklift operator was injured and its difficult to determine the owner of the machine

• Δ is required to give the Π insight of info about errors in the complaint • Cannot just give a general denial, have to specify which parts are true [R.8(b)] • Doctrine of Equitable Estoppel à will prevent Δ from taking advantage of S/L where Π was misled

o Ct will hallucinate the facts to be otherwise (consider it bad faith) Ø Layman v. Southern Bell à property owner sued the phone Co for trespass after it buried some phone lines under her

property • Δ answered the Π’s complaint w/ a general denial and then at trial, the theory of the Δ’s defense was that it

had a right of entry by easement • Ct didn’t allow the easement into evidence b/c it was an affirmative defense [R.8(c)]

o Affirmative defense must be pled in an answer to be used at trial o May not be plead generally but pled directly in the answer

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AMENDMENTS…

Ø Beck v. Aquaslide à slide manufacturer discovered that they were not the manufacturers of a slide being litigated and moved to amend their answer after the S/L had run out

• Ct allowed amendment of the answer à in the absence of bad faith on the part of the movant, leave to amend is fully w/in the discretion of the court

• R.15(a) – declares that leave to amend shall be “freely given when justice so requires” o Burden is on the party opposing the amendment to show prejudice

Ø Moore v. Baker à A patient who was disabled after an operation sued the Δ for violation of the informed consent law, and later tried to amend the complaint to include allegations of negligence (S/L had run out)

• Ct denied motion to amend à Issue did not relate back to the original complaint o R.15(c) – A claim is considered to relate back when the claim or defense arose out of the same

conduct, transaction or occurrence set out in the original pleading Ø Bonerb à Tort action was amended to include counseling malpractice

• R.15(a) freely grants leave to amend … however, R.15(c) states the allegations in the amended complaint must relate back to those in the original complaint

• In the relation back doctrine, the operational facts set forth in the original claim determine whether the Δ was put on notice of the claim the Π seeks to add

Ø Nelson v. Adams à ct granted motion to amend after judgment was entered and Δ did not have opportunity to be heard

• A ct cannot amend a judgment to add a party w/out violating due process, as reflected in R.12 and R.15, unless the proposed party is given an opportunity to respond and contest their personal liability

• Lesson: Give adverse party time to respond to your pleadings. To not do so, would violate due process Ø Mayle v. Felix à An amended habeas corpus petition does not rotate back when it asserts a new ground for relief when

supported facts differ in both time and type from those set forth in original pleading

SUMMARY JUDGMENT [RULE 56]

• Requires affidavits • Either party can bring it

o 20 days o has to balance w/ R.11

• Party opposing the motion, not required to file affidavits but probably should be safe and not sorry • Do affidavits have to be admissible?

o R.56(e): Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affidavit is competent to testify to the matters stated therein

Ø Visser: affidavits can be made on personal knowledge (unless they are expert witnesses) • Can be filed 20 days after commencing of the action – on 21st day, can file R.56 and serve to adverse party (b/c you can

amend during that time) • Can move on the basis of claims, counterclaims and pieces of claims • Want to end litigation early, so Δ moves first

1. cuts down on costs 2. Do not want to let information out during discovery 3. Do not want to get a verdict

• Δ must show: o Π has no genuine issue of material fact; and o JAML, you are entitled to Judgment as a matter of law (found under R.50(a)]

• 2 Kinds of JAML o directed verdicts [R.50(a) / R.52] o JNOV [R.50(b)]

Ø You can raise a R.50 3x’s • 2x @ trial (JAML) • 1x post verdict

• RULE 50: JAML – Jury Trial • RULE 52: JAML – Bench Trial • RULE 59: Motion for a new trial • Evidence is viewed in the light most favorable to the Π • Can cut off discovery, but usually comes after it à Strategic Decision!

Ø Can come any time b/w R.12 and R.50 on the litigation continuum • If no rational juror can grant for the mover, Ct grants summary judgment

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Ø Adickesàthe movant for summary judgment has the burden of foreclosing the possibility that the plaintiff can prevail at trial. Summary judgment was overturned because the movant failed to carry its burden of showing the absence of any genuine issue of fact.

Ø Anderson v. Liberty Lobby à In seeking to demonstrate a factual dispute, the non-moving party gets the advantage that the court must draw all justifiable inferences in its favor

Ø Matsushita ElectricàNon-moving party has to create more than a metaphysical doubt as to the material facts

Ø Celotex à the asbestos case • In order to prevail in SJ, you must only show the absence of evidence – you do not have to negate

the facts • This case opens the floodgates for SJ motions, especially for Corp Δs

Ø Biasà In order to withstand a summary judgment motion once the moving party has a prima facie showing to support its claims, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial

Ø Visser à Δ in a Fed Age Discrimination suit moved for SJ on the ground that there was no showing that Π was fired b/ of his age

• If R.50(b), then R.56, and if R.56, then R.12(b)(6) • All judges decisions should go the same way

Ø Jones v. Clinton à the president dropped his trousers • Paula did not make her burden of production, so he prevailed on SJ by showing the absence • Many of the claims were related, so when one fell, all the others fell

IMMUNITY

• Two Kinds: 1. Qualified

Ø Based on 2 elements: • Good faith belief by Δ • Objective Reasonableness

2. Absolute Ø Guaranteed no matter what

• Found in both the Constitution (11th Amendment) and Judge made doctrine • No municipal immunity under the constitution • § 1983 and other statutes are exceptions to immunity to sue state or government officials • Congress has tried to wear away immunity

Ø Gomez v. Toledo à Police officer was wrongfully accused of wire-tapping and then fired w/out a hearing • Sup ct held that Qualified Immunity based on good faith is an affirmative defense and thus the Δ

has the burden of pleading it – the Π is not required to plead bad faith • Only need Objective reasonableness of Δ’s actions

o HARLOW à Qualified immunity is limited to objective reasonableness Ø Richardson v. McKnight à privately employed prison guards plead qualified immunity for § 1983

violations • However, immunity doesn’t apply to privately employed prison guards

Ø Hope v. Pelzer à the Hitching Post case • Inmate was subject to cruel and unusual punishment • Guards were not entitled to qualified immunity under § 1983 b/c they had fair warning • It is a crime for a state official to act “willfully” and under color of law to deprive a person of

rights protected by the Const.

Subject Matter Jurisdiction • Found in Art. III of the Constitution

o Art. III does not require complete diversity but § 1332 limits Art. III • Goes to the competence of the courts to hear the claims

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• Concurrent jurisdiction = state and fed boundaries overlap • Issue can be raised at any time with R.12(h)(3) • 2 Con Law Claims à FACIAL and APPLIED

CONSTITUTIONAL JURISDICTION

• Federal Question claims: 28 USC § 1331 o The district court shall have original jurisdiction of all civil actions ARISING UNDER the Constitution, laws, or

treaties of the United States o Amount in controversy doesn’t matter as long as there is federal question

Ø Mottley à dispute about R.R. passes that were deemed illegal by legislature was brought into the wrong ct

• Fed ques or issue must be brought in a well pleaded complaint on its face and cannot be brought in anticipation of a defense (Artful Pleading) à “WELL-PLEADED COMPLAINT RULE”

Ø The Holmes Group à Δ filed a counterclaim and removed case to Fed Ct • Fed Ct does not have jurisdiction when the Δ’s counterclaim raises Fed Ques

o Π’s complaint needs to include the claim o Ct looked to the purpose of this rule to determine the meaning of “arising under” for §

1331 • Reasons why “arising under” does not include counterclaims:

1. Π is the master of the complaint 2. conferring this power upon the Δ would radically expand the class of removable cases 3. it would undermine the clarity and ease of administration of the WELL-PLEADED

COMPLAINT RULE

Ø Rivet à Π used claim and issue preclusion to remain in State Court (did not raise Fed Ques on purpose) • “ARTFULLY PLEADED CLAIMS” à Π may not defeat removal by omitting to plead necessary

fed questions o you can’t escape a § 1331 rule o Ct will remove it themselves if they believe there is a federal question

• Diversity: 28 USC § 1332

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

(1) citizens of diff states; (2) citizens of a State, and citizens of a foreign state; (3) citizens of diff States and in which foreign states or citizens or subjects thereof are additional parties (4) a foreign state as Π and citizens of a State or of diff States

(b) Where the Π is finally adjudged to be entitled to recover less than the sum or value of $75,000, the dist ct may deny costs to the Π and, in addition, may impose costs on the Π

(c) For the purposes of this section and § 1441 – (1) a corp is a citizen of a State in which it is incorporated or has its PPB (2) legal representative of a decedent is considered citizen of the State of the decedent

(d) The word “States”, as used in this section, includes the Territories, the District of Columbia, and Puerto Rico

o Diversity Summary § Must be complete diversity § Domicile

• Natural Person (residence and intent to stay) • Corporations (state of incorporation and PPB)

§ Amount in controversy – over $75,000 § Aggregation of claims – when you can

• Multiple claims and a single Δ • Multiple claims and multiple Δs can only aggregate when liability is

joint and severable

Ø Mas v. Perry à Married Couple v. Peeping Tom • Π’s were studying in Louisiana (1 was French and 1 was a resident of Mississippi) and the Δ was

a resident of Louisina – he tried to get a motion to dismiss for lack of diversity jurisdiction [R.12(b)(1)]

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• Ct held diversity jurisdiction was established on 2 grounds: (1) by an alien against a state citizen and (2) b/w citizens of diff states

• Change of domicile can occur when 2 conditions are met: 1. taking up residence in a diff domicile 2. w/ intent to remain there

Ø Redner v. Sanders: Citizen of New York tries to seek diversity because he resides in France and California

• To invoke diversity plaintiff must be a citizen of a foreign state not a resident • A person is a citizen of a state if they are a citizen of the United States and domiciled within a

particular state. Plaintiff did not have sufficient facts to prove domicile such as where he lives, what kind of residence, where his family is, and where he carries out business activities.

Ø Saadeh v. Farouki à Π-Greek citizen v. Δ-Jordanian citizen residing in Maryland • After litigation began, Δ became a citizen of the US • There is no diversity jurisdiction over an action b/w an alien and another alien who has achieved

permanent resident immigration o Citizenship at the time the suit was filed is the relevant test, so Δ subsequently becoming

a citizen does not create diversity Ø Strawbridge: The existence of a single party with same state citizenship as that of an opposing party will

destroy diversity. Ø Exxon v.Allapattah: Complete diversity is not mandated by the constitution but adhered to by the courts.

Complete diversity is needed by all parties in a suit in order to be moved to federal court. Ø Ankenbrandt v.Richards: suits for divorce, alimony, or child custody fall outside the scope of diversity

jurisdiction, even if the spouses were citizens of different states when suit was brought. Ø Ruhrgas àA court can decide the 12(b)’s in any order

• This case involves ques. of PJ [R.12(b)(2)] and SMJ [R.12(b)(1)] • There is no hierarchy in determining federal question à efficiency is imp!

Ø McCauley à whether an injunction can satisfy the amount in controversy requirement • Under § 1332, the party asserting diversity jurisdiction has the burden of establishing by a

preponderance of the evidence that the amount in controversy satisfies statutory jurisdictional amount.

• “EITHER VIEWPOINT RULE” – when value of Π’s potential recover is below jurisdictional amount, but the potential cost to Δ of complying w/ the injunction is above the amount in controversy, the latter represents amount in controversy

Ø JP Morgan v. BVI à whether a corp organized under the laws of the British Virgin Islands is a “citizen or subject of a foreign state” for the purposes of diversity

• Corps want to be out of the reach of the treasury and corps (no taxes / no laws) STATUTORY JURISDICTION

• Supplemental Jurisdiction: 28 USC § 1367 (a) in any civil action, the dist cts shall have supplemental jurisdiction over all other claims that are so related to claims

in the action that they form part of the same case or controversy under Art. III (b) where dist cts have jurisdiction under § 1332, the dist cts shall NOT have supp juris under subsection (a) over claims

by Πs against persons made parties under R.14, 19, 20, or 24 (c) the Dist cts may decline to exercise Supp Jurisdiction over a claim under subsection (a) if –

(2) the claim raises a ques of State law (3) claim predominates over claims which the dist ct has original jurisdiction (4) the dist ct has dismissed all claims over which it had original jurisdiction (Kroger) (5) in exceptional circumstances

(d) When a claim is dismissed, the party has 30 days to refile or the remainder of the statute of limitations, whichever is later

o § 1367 Summary:

§ allows you to bootstrap state claims in fed ct § fed cts do not have discretion w regards to fed ques claims § common law à ancillary and pendant jurisdiction § Δ would file R.12(b)(1) to try and kick state claims out of fed ct

Ø Gibbs à Π filed a state and fed claim in fed ct w/ no diversity, but w/ related facts

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• Where a fed ct has proper jurisdiction over a fed claim, it may also hear related state law claims where both claims arise from a Common Nucleus of Operative Facts

• This was the leading case regarding supplemental jurisdiction before it was codified in 28USC § 1367

Ø Kroger / Owen à the electrocution case with the boom • A fed ct does not retain jurisdiction over an action, based on diversity of citizenship, when the Π

adds a pendent party Δ who destroys complete diversity • Π (Iowa) – Δ (Nebraska) – Δ2 (Iowa Corp) = destroyed diversity

Ø Finley à woman who lost her family in an airplane crash and tried to sue San Francisco power and FAA • Even when there is the same nucleus of operative facts, the FTCA is specifically limited to claims

against the US • Since there were not FTCA claims against the addt’l parties, the state claims relating to state

parties were out • 2 things required to create jurisdiction:

1. The Const must have given the ct the capacity to take it 2. An act of Congress must have supplied it

Ø Red Cab • Deals w/ the amount in controversy for diversity purposes • You must have a good faith basis that the amount being claimed is appropriate and if the amount

collected is less than the amount in controversy requirement, diversity is NOT destroyed

• Removal: 28 USC § 1441 (a) any civil action may be removed by the Δ or the Δs (b) 1st Sent à Any civil action … arising under the Constitution, treaties or laws of the US shall be removable w/out

regard to the citizenship or residence of the parties = § 1331. 2nd Sent à Any other such action shall be removable only if none of the parties in interest properly joined and served as Δs is a citizen of the State in which such action is brought = § 1332: “HOMESTATE RULE”

(c) Whenever a separate and independent claim or COA w/in the jurisdiction conferred by § 1331 of this title is joined w/ one or more otherwise non-removable claims or COA, the entire case may be removed and the dist ct may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates [§ 1367(c)(2)]

o § 1441 Summary:

§ does not come from the Constitution but was enacted by statute in 1789 § Most removal occurs in civil cases § B/c the Δ removes, he/she has the burden of proof § Removal can only go from State to Fed ct § Under subsection (b):

• If there is a fed ques, diversity and citizenship don’t matter • Homestate rule à cannot remove if you are from the state where the

action is pending (only applies to diversity jurisdiction) § Case CAN BE REMOVED ONLY if the action could have originally been filed

in fed ct

Ø Caterpillar à bulldozer case where all claims involving non-diverse Δs were settled and complete diversity then existed

• A Dist Cts error in failing to remand a case improperly removed is not fatal to the ensuing judgment if fed jurisdictional requirements are met at the time the judgment is rendered (entry of judgment)

Ø Int’l College of Surgeons à building under landmark protection act and filed request w/ state administrative agency

• Allowed removal of both fed constitutional claims as well as the state administrative challenges even when the state claims involved a factual review

• Fed cts do not like to review the facts of a state issue, but here they allowed the ct to do that

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Ø Schacht à • Issue was whether Δ’s in a case filed in a state ct w/ claim “arising under” fed law, can remove the

case to fed ct – where some claims made against the state, are subj to an 11th Amnd’t bar o Yes – Δ’s can remove the case to a fed ct and that ct can decide the non-barred claims

Ø Lapides à university waived its 11th Amnd’t rights when it removed to fed ct • Sup ct held that state’s removal of suit to fed ct constituted waiver of its 11th Amnd’t immunity

[28 USC § 1367(c)(3)] Ø Murphy Bros. v. Michetti Pipe Stringing:

Ø Service of summons, not the earlier sending of a “courtesy copy” by counsel, is the trigger for the start of the 30-day period for removal.

Ø Rogers v. Walmart Stores: • Plaintiff cannot prevent the removal of a diversity case by filling claim in state court but asking for

less than $75,000 in damages, waiting a year, and then amending her complaint to seek the greater amount

Ø International Insurance Co. v. Duryee: • State cannot discourage removal by enacting a statute providing that any out-of –state insurer that

removed a case to federal court was barred from doing business in the state for three years. This is unconstitutional

Ø Capron v. Noorden: • Supreme court dismissed a case in which plaintiff improperly invoked diversity jurisdiction, then

lost at trial. On appeal, plaintiff pointed to the lack of jurisdiction and won dismissal of the case he had brought

Ø Wisconsin Dept. of Corrections v. Schacht: • Federal courts retains jurisdiction over state claims even if the “federal ingredient” would not

suffice for federal jurisdiction if brought separately Ø Lapides v. Board of Regents of Ga:

• A state court waivers its Eleventh Amendment immunity when it removes a case from state court to federal court

Ø Syngenta Crop Protection v. Henson: Henson tried to move case to federal court asserting federal jurisdiction under the All Writs Act §1651

• The All Writs Act does not furnish removal jurisdiction. That Act, alone or in combination with the existence of ancillary enforcement jurisdiction, is not a substitute for §1441’s requirement that a federal court have original jurisdiction over an action in order for it to be removed from a state court

Ø Beneficial National Bank v. Anderson: bank (defendant) tried to move case to federal court although the complaint of the plaintiff had no federal claim. Bank stated that the P’s claim actually arose under federal claims §85 and § 86

• Under the “well pleaded complaint rule”, removal is not permitted unless the complaint expressly alleges a federal claim. However there is an exception when a federal statute completely pre-empts a cause of action. Since P’s cause of action arose only under federal law it can be removed under §1441.

Ø Martin v. Franklin Capital Corp: Ps requested attorneys fees be paid by Ds under §1447 which states that a remand order may require payment of just cost and any actual expenses, including attorney’s fees

• Absent unusual circumstances, attorney’s fees should not be awarded under §1447(c) when the removing party has an objectively reasonable basis for removal. Conversely, where no objectively reasonable basis exists, fees should be rewarded.

• Fee awards are left to the court’s discretion and are subject to review only for abuse of discretion Ø Kircher v. Putnam Funds Trust: Seventh Circuit court of Appeals reviewed district court’s decision to

remand a case back to state court because they found the district’s court’s decision to be substantive and not covered under §1447(d)

• Orders remanding for want of preclusion under the Act are subject to §1447(d) and its general rule of nonappealability. S1447(d) states that an “order remanding a case to the State court from which it was removed is not reviewable on appeal”. It applies to all remands based on grounds specified in §1447(c), including subject matter jurisdiction

Ø Watson v. Phillip Morris: D. tried to remove case to federal court because the complaint attacked Phillip Morris’s use of the government’s method of testing cigarettes and thus that petitioner’s had sued them for “acting under” the FTC.

• The fact that a federal agency directs, supervises, and monitor’s a company’s activities in considerable detail does not bring that company within 1442(a)(1) scope and thereby permit

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removal. The removal statute applies to private persons “who lawfully assist” a federal officer “in the performance of his official duty” but only if the private parties were “authorized to act with or for (federal officers or agents) in affirmatively executing duties under…federal law”

Ø PowerEx Corp v. Reliant Energy Services Inc: Ds stated that they were wholly owned by foreign state under FISA Act but was denied removal to federal court. Circuit court reviewed remands stating that §1447(d) did not preclude it from review substantive issues of law that preceded the remand order.

• §1447(d) bars appellate consideration or review of petitioner’s claim that it is a foreign state for FISA purposes

Ø Carlsbad Technology v. HIF Bio: Ps state claims were dismissed from federal court because federal claim was dismissed, the court refused to use supplemental jurisdiction under §1367. Circuit court did not review because remand order was based on lack of subject jurisdiction and not reviewable

• A district court’s order remanding a case to state court after declining to exercise supplemental jurisdiction over state-law claims is not a remand for lack of subject jurisdiction for which appellate review is barred by §1447(a) and (c) .

• With supplemental jurisdiction, a federal court has subject matter jurisdiction over state-law claims, see §1367(a), (c) and its decision whether or to exercise that jurisdiction is purely discretionary. It can be reviewed.

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Personal Jurisdiction PERSONAL JURISDICTION

• Background: o Comes from the idea of state sovereignty o Usually w/in the confines of the state’s borders w/ the exception of the Long Arm statutes

§ The 14th amendment reinforces those borders

• 28 USC § 1738: State and territorial statutes and judicial proceedings; Full Faith and Credit Clause o The acts of legislature of a state shall be affixed by the seal of such state…records and judicial proceedings shall be

proved or admitted in other courts w/in the US…and such acts and judicial proceedings shall have the same full faith and credit in every court w/in the US.

o In personam Jurisdicion à jurisdiction over the person o In rem jurisdiction à jurisdiction over the property o Quasi in rem jurisdiction à use attachment as a form of hooking on the jurisdiction Δ

• General Jurisdiction o Based on Pennoyer-like presence o Determined by the state of incorporation and PPB o Claims may be unrelated to the contacts of the state o Fed ct derives its jurisdiction from territorial jurisdiction of the state court

• Specific Jurisdiction o Presence has to be related to the claims o Guiding case: Int’l Shoe

§ Minimum Contacts (Δs in-state conduct) • Continuous and systematic v. sporadic and casual • Related to / arise out of claim

§ Fair Play and substantial justice • Deciding Fairness

o Interest Analysis: 3. Δ 4. Π 5. State 6. Judicial 7. Interstate

Ø Int’s Shoe Guiding Principles…

§ Continuous and systematic and related to COA à YES jurisdiction § Sporadic and casual and related to COA à YES Jurisdiction (McGee) § Sporadic and casual and not related to COA à NO jurisdiction § Continuous and systematic and not related to COA à Unclear

• Complete Test for PJ 4. Purposeful availment

a. Express and Implied consent b. Instate activities

5. Litigation relatedness 6. Reasonableness

a. Fairness b. Foreseeability c. Interest Balancing Test

• Two Types of non-resident Δs: o Physically present Δs that are tagged à no need for min contacts b/c this is inherently reasonable

§ Due a Pennoyer analysis o Absent Δs à Get min contacts test

§ Due a Int’l Shoe analysis • If cts lack PJ over you à you ARE NOT amenable to service (meaning, you can’t be “tagged”)

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Ø Pennoyer v. Neff à Collateral attack on judgment where he was not properly served, he lived in another state, and property was attached after judgment and taken away

• Establishes state power over person, property or status for PJ • A state can obtain in personam jurisdiction over a non-resident only if that non-resident is

personally served w/ process while w/in the territory of the state • In rem jurisdiction can be obtained if the non-resident owns property w/in the state, and that

property is attached at the very outset of trial • Pennoyer Theory à YOU HAVE TO BE THERE! (you can be tagged)

o Cts constitutionalized state boundaries under the 14th Amnd’t § All state proceedings and judgments are subject to the 14th Amnd’t Due Process

Clause Ø Int’l Shoe àthe shoe sales men in Washington

• 2 Step Due Process Analysis: 1. Minimum contacts

i. In state activities of Δ (continuous / systematic) ii. Cause of action is related or under Δs activities

2. Fair Play and substantial justice Ø Shaffer à Greyhound shareholder’s action where their stocks where sequestered

• Quasi in Rem jurisdiction is focused on in this case b/c the property serving as the basis for jurisdiction is completely unrelated to Π’s COA

• Int’l Shoe inquiry applies to quasi in rem jurisdiction (min contacts must exist) • In this case, they found no jurisdiction b/c the claim was unrelated to the sporadic and casual

contact Ø McGee v. Int’l Life Ins. Co. à beneficiary of a life ins policy held by a TX company, brought suit in CA

when Int’l Life refused to pay • A state may exercise jurisdiction over a Δ whose contacts w/ that state consist of only a single act,

provided that that act is what gave rise to the claim for which jurisdiction is being sought, and was deliberately toward the state

Ø Hanson v. Denckla à claimants to a Delaware trust filed suit against the Delaware trustee in FL, claiming the trust was invalid under FL law

• A state may not exercise jurisdiction over a Δ is the Δ’s contacts w/ the state are negligible and non-deliberate, and the claim does not arise from those contacts

o In this case, the laws of Delaware allowed the trust to be created, maintained, and administered. Allowing FL cts using FL law to invalidate the trust is, in a way, like allowing FL cts to overturn Delaware’s laws to legislate instead

Ø WWVW v. Woodson à people driving Audi purchased in NY got rear-ended in Oklahoma • In order to be subject to a state’s jurisdiction, a Δ must have chosen to have some contact w/ that

state; considerations of fairness, convenience, and the interests of the state in overseeing the litigation are otherwise irrelevant

o Expands fairness analysis to a reasonable analysis o Looks at the Δ and his contact w/ the forum state

§ Foreseeability § Purposeful availment

o Connection b/w purposeful availment, reasonableness and foreseeability § It is not unreasonable to adjudicate a Δ who has purposefully availed itself to the

benefits of the state that it can foresee that it will be brought in court Ø Asahi à Japanese people made a part that was placed in a product that ended up in the US

• The Π must purposefully avail himself of the forum by more than just putting a product into the stream of commerce w/ the expectation that it will reach the forum state

• Fairness requirement is also not met b/c the Δ would be a non-US resident Ø Burger King Corp à BK franchise owner defaults on his payments then doesn’t want to go and defend his

case in FL • The ct has PJ as long as the long arm statutes conform w/ the 14th amendment • Once it has been established that the Δ has minimum contacts w/ a state, it is up to the Δ to prove

that being required to defend a suit there would be “fundamentally unfair”

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Ø Mink à developer of a comp. software brings action against purported competitors, alleging conspiracy to copy program in violation of patent rights (the website case)

• When a nonresident Δ challenges PJ, the Π bears the burden of establishing the Dist. Ct has jurisdiction over the Δ

• The “Zippo” decision: re: internet advertising o Categorizes the “passive website”

§ Does not satisfy PJ § AAAA falls into this category

Ø Washington Equipment à Idaho Δ obtained a certificate and appointed a registered agent in order to build roads in Washington as required by State Statute of foreign corps

• Ct held that a foreign corp does not consent to general PJ by complying w/ the state’s mandatory requirements for doing business there.

Ø Ins Corp of Ireland à insurers failed to comply w/ the cts discovery rules • B/c of discovery violations, the party was sanctioned by the ct in that it deemed that PJ had been

waived • Major lesson: If you challenge the inherent posers of the court, you will get sanctioned

Ø Burnham à Burnham was tagged w/ service of divorce papers when visiting his kids in CA • Jurisdiction based on physical presence alone comports w/ due process, regardless of the Δs

contact w/ the forum state Ø Carnival Cruise v. Shute à forum selection clause on back of ticket

• Forum selection clause was enforced b/c they had “consented” to it by purchasing the ticket • Forum selection clauses will be enforced

Ø Gibbons v. Brown à Brown gave Gibbons wrong directions and Gibbons sues him when he got in an accident

• Ct held that jurisdiction over a non-resident Δ is proper where the only contact w/ the state was filing a lawsuit 2 years earlier against a Δ not a party to the current suit

o A Δ must be “engaged in substantial and not isolated activity” w/in the state VENUE

• Created by 28 USC § 1391 (b) where jurisdiction is founded only on DIVESITY, can file

(1) where the Δ resides (easier to prove than domicile) (2) where the events occurred (where the claim arose) (3) where the Δ is subject to personal jurisdiction if there is no other district to bring the action

(c) where jurisdiction is founded on NON-DIVERSITY, can file (1) where the Δ resides (2) Where the events occurred (3) Where the Δ is subject to personal jurisdiction, if there is no other district to bring the action

(d) when suing a corporation, it is deemed to reside in any district which has Personal Jurisdiction over the corporation. If jurisdiction is had in more than one district, then look to area of sufficient or greatest contacts

(e) Aliens can be sued in any district (f) When an officer or the US is involved as a Δ, can file

(1) where the Δ resides (2) Where the events occurred (3) Where the Π resides if there is no property involved

(g) Discusses how a foreign state can be sued

• § 1404: Change of Venue o concurrent w/ R.12(b)(3) o Tells the court that if they will not dismiss on a R.12(b)(3), then it should at leas be moved to any other district or

division where action may have been brought § Applies to § 1631 – Transfer to cure want of jurisdiction

• Double Forum Shopping

o To file in a state and then transferring to another state while keeping the transferring state laws (Ferens) o Horizontal Forum shopping is okay b/c the same state law would apply in a diff court o Vertical Forum shopping is not okay b/c you get diff law to apply which may change the outcome of the case

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• Forum non convenience o It’s declining jurisdiction over a matter where, in the interest of justice, it would be more appropriately tried in

another location based upon convenience to the parties and witnesses, and the best interests of the public o Motion to Dismiss NOT TO CHANGE OR TRANSFER VENUE o Motion will not be granted if Δ cannot prove that Π has an alternative forum which can exercise jurisdiction over all

of the Δs and can allow for complete relief

Ø Dee- Enterprises, Inc. à the bungee cord manufacturers in an antitrust suit • Sup ct held that the general federal venue statute, § 1391(d) which provides that aliens may be

sued in any district, overrides any special venue provision contained in other federal statutes such as the one pertaining to antitrust actions

Ø Piper Aircraft à Scotts want to sue in the US • The fact that a substantive law being less favorable to Πs in an alternative forum should not be

given conclusive or even substantial weight in applying the doctrine of forum non conveniens Ø Ferens v. Deere & Co à this is the case of some seriously slick lawyering!

• Man lost his hand in PA but filed in MS b/c of more favorable S/L law and then moved to transfer to PA

• Transferee forum was required to apply law of the transferor ct, regardless of which party initiated transfer

o Transferor ct = where suit is originally brought o Transferee forum = where suit may have been brought but wasn’t

SERVICE

• You can serve in one of 2 ways: state law or R.4(e)(2) • RULE 4: Summons

o (e) How do you serve (1) serve pursuant to state law (2) other ways to serve

• Tag jurisdiction • Leave summons w/ individual dwelling or usual place of abode w/ some person of suitable and

age and discretion then residing therein; or • Delivering a copy of the summons and of the complaint to an agent authorized by appointment or

by law to receive service of process • In some cases, certified mail is okay

o (m) Time limit for service à if service of the summons and complaint is not made upon a Δ w/in 120 days after the filing of the complaint, the ct, upon motion or its own initiative after notice to the Π, shall dismiss the action w/out prejudice as to that Δ

Ø Mullane v. Central Hanover Bank & Trust Co. à members of a common trust were notified by publication

in a local newspaper pursuant to State statute. Mullane objected saying notice should have been given by mail b/c the newspaper was inadequate to afford due process under the 14th Amendment.

• Sup Ct held that b/c the addresses were known, notice in the paper wasn’t sufficient o The focus of this case is the phrase “reasonably calculated” under the circumstances –

b/c in some cases there really is no way of providing a party w/ notice other than by publication

Ø Murphy Bros à fax v. certified mail • 30-day removal period begins to run NOT when Δ received faxed, filed stamped copy of

complaint, but rather, when Δ was later formally served by certified mail • 28 USC § 1446(b) specifies that the removal notice “shall be filed w/in 30 days after the receipt by

the Δ, through service or otherwise, of a copy of the complaint” • R.4(a) says the summons shall state the time w/in which the Δ must appear and defend, and notify

the Δ that failure to do so will result in a judgment by default against the Δ Ø Dusenberry v. US à FBI tried to provide notice to a prison guard via certified mail

• Mullane test of reasonableness applied in this circumstance • Notice of forfeiture in this case was sent by certified mail to federal prison where arrest occurred,

and address in town where his mother lived = satisfied due process requirements

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Choice of Law (Erie)

• If there is no FED and STATE law conflict, presumably both will apply • § 1652 – Rules of Decision Act

o The laws of the several states, except where the Constitution or treaties of the US or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the US, in cases where they apply

• 3 Types of Conflict: 1. Statutory Conflict (procedural or substantive)

i. Stewart ð Guided Erie

i. Is that statute on point and controlling? ii. Is it a valid exercise of constitutional power? Always YES

2. Rule Conflict (procedural) i. Hanna & Woods

ð Guided Erie i. Is the Rule on point and controlling?

ii. It is consistent w/ the Rules Enabling Act? Always YES 3. Policy Conflict

i. Byrd ii. Gasperini

• Swift v. Tyson o In federal diversity cases, fed cts have independent power to declare rules of decision and can use or create federal

common law o This resulted in

§ Vertical forum shopping § Inequitable administration of law § Non uniformity and inconsistency § Favor to the Π

• Black and White Taxi (Corp reincorporated in diff state to use more favorable state law) o Highwater mark of gamesmanship by litigants o Swift was upheld o W/out a change or residence, a corporate citizen of the state could avail itself of the federal rule by incorporating in

another state

Ø Erie R.R. à guy got his hand cut off while on his way to visit his mom as a trespasser in a R.R. in PA and filed in NY for more favorable statute regarding trespassers

• Overrules Swift as to its federal common law assertion • Also says when there is no conflict, you can use both state and fed law • Twin Aims of Erie (Guided Erie)

1. prevent and discourage forum shopping 2. avoid inequitable administration of the law

• Does not answer the questions of what we do when we have inconsistency b/w fed and state statues, rules, and policies

Ø Guaranty Trust v. York à S/L used as a defense • NY S/L governs the matter. Disregarding it would significantly affect the result of litigation, as

compared w/ the outcome had it been tried in state court • OUTCOME DETERMINATIVE TEST à The proper method of determining if the state S/L will

be applied in fed diversity cases is to ask if th fed ct were to disregard it, would so doing significantly affect the result of the litigation (no matter if it is procedural or substantive)

Ø Byrd àStrong Federal Policy test • Where the state and fed conflict is not outcome determinative, but there is a fed policy (in this case

7th Amnd’t right to jury trial) than state interest should give way to federal policy

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Ø Hanna v. Plumer à conflict b/w fed and state rules w/ regard to service [R.4] à Guided Erie • Service of summons and complaint was left w/ Plumer’s wife at his residence • 2 imp holdings:

1. it modified the outcome-determinative test so it is applied only in those situation where the rule would encourage forum shopping or cause inequitable administration of the laws. (The Twin Aims of Erie)

2. It held that where FRCP conflict w/ state rules, the FRCP will prevail Ø Woods àAlabama allowed losing party on appeal to be penalized and FRCP didn’t

• Rule conflict • Follows Hanna and uses the same test • A governing FRCP controls over a contrary state statute

Ø Stewart à statutory conflict w/ regards to forum selection clauses (Fed ct allowed them, state ct didn’t) • Looks at state policy verses fed statute that is on point and controlling, if so we use fed statute • Ct held in a fed diversity case, the fed ct shall not apply state decisional law if a fed procedural

statute governs the statute [broadly interpreted § 1404(a)] Ø Gasperini à NY statute allowed App Ct to review size of jury verdicts, while the Reexamination clause of

the 17th Amnd’t, applying to fed cts, prevented judicial review of damages (unguided Erie) • In a fed diversity case, the Reexamination Clause of the 7th Amdn’t displaces substantive state

statute regarding excessive jury verdicts Ø Semtek à Sup ct is called to decide whether claim preclusion in one jurisdiction should extend claim

preclusion to other fed jurisdictions. • Sup Ct wants the cts in Maryland to apply its own laws rather than CA’s law

Joinder

Π ---------claim------------>Δ <----- intervention (R.24) --------Π/Δ Π<--------counterclaim-----Δ (compulsory/permissive)

Δ <-----interpleader (R.22) -------> Δ Δ é Cross-Claim ê î

Δ Impleader (R.14) î 3rd Party Δ (note: the Δ that brought in the 3rd Party Δ then becomes the 3rd Party Π)

JOINDER

• Known as complex litigation or multiple party litigation • Included in pleading section of 20 questions • RULE 13: Counterclaim and Cross-Claim

(a) compulsory counterclaims à any related claim arising out of the same original transaction (b) permissive counterclaims à any claim against an opposing party which is not related to the original transaction

(requires independent SMJ and PJ) • RULE 14: Third-Party Practice

o Requires derivative liability o Can implead another Δ that is also liable

• RULE 18: Joinder of… (a) Claims (b) Remedies

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• RULE 19: Joinder of Persons needed for just adjudication o Use R.12(b)(7) o Bring in parties that need to be joined b/c they have an interest in the action or b/ they are needed to grant proper

relief o If the necessary party cannot be joined, the ct must decide whether to proceed w/out them o Joined parties must be subject to PJ and joinder CANNOT destroy diversity for SMJ o Factors to determine whether 3rd party is indispensable

§ The extent of prejudices to the present parties that the 3rd party’s absence may bring § The extent that prejudices may be avoided or reduced by other means § The adequacy of judgment w/out third party presence

• RULE 20: Permissive Joinder of Parties (a) all persons may join if their claim arises out of the same transaction or occurrence OR common question of law or

fact (b) Court may use its discretion is separating trials (can also sever under R.42 : Consolidation; separate trials)

Ø Plant v. Blazer à Π borrows $, makes no payments, then sues the lender under the Truth-in-lending Act

• Blazer counter-claimed under R.13(a) on the note for the unpaid balance • 4 questions test to determine whether a claim or counter-claim arise from the same transaction

1. Are the issues of fact and law raised by the claim and counterclaim largely the same? 2. Would res judicata bar a subsequent suit on a Δs claim absent the compulsory

counterclaim rule? 3. Will substantially the same evidence support or refute Πs claim as well as Δs

counterclaim 4. Is there any logical relation b/w the claim and counterclaim?

• Yes to any of the questions makes it a compulsory counterclaim Ø Mosley àMosely and 9 others joined together to bring a suit against GM for discrimination against blacks

and women • Rule 20(b) commonality of transaction analysis and determined that the civil rights claims though

based on different kinds of discriminations could be heard together • Permissive joinder is applicable only when

(1) a right to relief must be asserted by, or against, each Π or Δ relating to or arising out of the same transaction or occurrence, or series of occurrences; and

(2) some question of law or fact common to all the parties must arise in the action Ø Watergate Landmark Condo à Rule 14 (3rd Party Practice) case

• A third party complaint is appropriate only where the 3rd party Δ is held liable to the Π o You cannot say “It was him, not me” o You can say “It was ALSO him”

Ø Helzberg à jewelry store sues shopping mall for violating its lease agreement • R.19(b) case –fairness and procedural device • Cts are reluctant to find that a non-party is indispensable when joinder would result in dismissal • Other jewelery store wanting t lease space at shopping mall was not deemed an indispensable

party by the court Ø Kroger à Π amended complaint under R.15 to add a 3rd party Δ that was impleaded by original Δ.

• R.14 Impleader action • Original Δ was granted SJ. Since Π and remaining Δ were from the same state, diversity was

destroyed and ct lacked jurisdiction to hear the matter. Ø Abbott à Consumers try to sue baby food manufacturers

• It allowed the ct to exercise supplemental jurisdiction over the members of a class action even though they did not all meet the required amount of controversy individually but they did as a whole

INTERVENTION • Allows a non-party who wishes to become a party to intervene if he meets the requirements of permissive intervention or

intervention of right • Intervention must be timely • A party will not be allowed to intervene if complete diversity will be taken

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• RULE 24: Intervention

(a) Intervention of Right: (1) if a US statute allows it; or (2) 3 pronged analysis:

i. timely ii. interest in property or transaction / interest at risk

iii. adequacy of representation 1. diligence and competence 2. concurrent conflicts (proper representations of named and unnamed parties)

(b) Permissive Intervention: (1) if a US statute allows; or (2) applicant’s claim is related to the main action by question of law or fact (3) Ct has discretion and should weigh any delays and prejudices to the original parties by allowing the

intervention

Ø Natural Resources Defense Counsel à environmentalists against the uranium mills • A party may intervene in an action under R.24(a)(2) if he has an interest upon which the

disposition0 f that action will have significant legal effect Ø Wilks à white firefighters allege reverse discrimination

• White firefighters challenged affirmative action plans mandated by consent decree which was entered in an action of which they had previous knowledge but had not intervened

• Ct held that a party may not be bound by a judgment rendered in which he was not a party, even if he had previous knowledge of the action

INTERPLEADER

• Allows a party, against whom two or more mutually exclusive claims relating to the same property or fund have been asserted, to join the claimants in the same proceeding and require them to litigate among themselves their rights, if any, to the property or fund

• 2 kinds of Interpleader: o Federal Statutory à § 1335

§ Other statutes pertaining to interpleader are: • § 1397: Interpleader Venue • § 2361: Process and Procedure

§ Statutory interpleader doesn’t allow cross-claim or counterclaim actions o Federal Rule à R.22

Statutory Interpleader v. FRCP 22 Interpleader

Issue Statutory (§ 1335) Rule 22 SMJ Diversity Amount

Minimal diversity; determined as b/w claimants $500 in controversy

Complete diversity; stakeholder on one side and claimants on the other (relates to § 1332) $75,000 +

PJ Service of Process

Nationwide service of process (§ 2361)

Need PJ; service under R.4

Venue Residence of one or more claimants (§ 1397)

(1)Residence of any claimants (if all from one state); (2) dist where dispute arose; (3) dist where property is; (4)dist where any claimant found if no other basis for venue (relates to § 1391)

Injunctions Statutory authority for injunctions (§ 2361)

Only basis is provision § 2283 for stay “where necessary in aid of jurisdiction”

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Ø Cohen à Imelda Marcos painting • A party has unconditional right to intervene if the party can prove a risk of practical impairment of

a relevant interest, timely application, and lack of adequate representation

CLASS ACTIONS • RULE 23

(a) Prerequisite to a Class Action: (need to meet all 4 requirements, then go to R.23(b) ) One or more of the members of a class may sue or be sued as representative parties on behalf of all only if:

(1) NUMEROSITY: class is so numerous that joinder of all members is impracticable (2) COMMONALITY: there are questions of law OR fact common to the class (3) TYPICALITY: the claims or defenses of the representative parties are typical of the claims OR

defenses of the class, AND (4) ADEQUACY: the representative parties will fairly and adequately protect the interest of the class

(concurrent representation of the parties) (b) Class Actions Maintainable: (just need to satisfy one of the 3 requirements) A class action will be maintained if

R.23(a) is satisfied AND in addition: (1) the prosecution of separate actions by or against individual members of the class would create the

risk of… [don’t get to opt out of this provision] (A) Inconsistent or varying adjudications w/ respect to indiv. class members of the class

which would establish incompatible standards of conduct for the party opposing the class; OR

(B) Adjudications for an indiv member which would substantially impair or impede other members from taking action or protecting themselves (limited fund problem); OR

(2) The opposing party has acted similarly adverse to the entire class, thereby making appropriate final injunctive relief or corresponding declaratory relief (note: damages will muck up your 24(b)(2) class); OR [don’t get to opt out of this provision]

(3) The ct finds that the question of law OR fact common to the members of the class predominate over any ques affecting only individual members, AND that a class action is superior to all other available methods for the fair and efficient adjudication of the controversy. Matters pertinent to the finding include: [if you don’t opt out, you’re in!]

(A) Interest of members of the class (B) The extent and nature of any litigation already commence by other class members (C) The desirability or undesirability of concentrating the litigation of the claims in the

particular forum; (D) The difficulties likely to be encountered in the management of a class action

Ø Communities for Equity à class action brought for discrimination in girl sports

• Ct takes into account the impracticability, commonality, typicality, and adequacy of representation when considering the issuance of class actions

Ø Heaven à Heaven leased a car from SunTrust and sued them for failure to comply w/ disclosure requirements of the Consumer Leasing Act

• Cannot certify class action for COA which includes counterclaims b/c that would involve multiple separate factual determinations which would undermine the commonality under R.23

Ø Hansberry v. Lee à black land purchaser was subject to discrimination • There must be adequate representation of the members of a class action or the judgment is not

binding on the parties not adequately represented Ø Shutts à holders of royalty interests brought a class action against Phillips Petroleum to recover royalty

payments • A state may exercise jurisdiction over absent Πs in a class action suit even if the Πs have no

contacts w/ the state • In this case, the Δs raised PJ question over the Πs (usually it’s the other way around)

Ø Amchem v. Windsor à people exposed to asbestos products created a settlement-only class to settle current and future asbestos related clams

• A class action settlement agreement may be approved by the ct if it is fair adequate and reasonable • In this case, the class did not meet the requirements of R.23 in common question

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Federal Rules of Civil Procedure Rule 1 Scope & Purpose of Rules - Govern procedure in US district courts for civil suits (exceptions Rule 81)

- Trials: Construed/administered just, speedy, inexpensive manner - merges law and equity into court

Rule 2 One form of Action - “Civil Action” Rule 3 Commencement of Action - File complaint w/ Court Rule 4 Summons (a) Form: signed by clerk, bear seal, identify court/parties, directed to Δ,

name & address of Π’s attorney/Π, time w/in Δ must appear & failure = judgment for Π - Summons allowed to be amended. (b) Issuance: after file è clerk for seal (c) A summons shall be served together with a copy of a complaint. (d)(2)(B)/(C) Service by first-class mail/reliable means, accompanied by complaint & court filed in (e) Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed may be effected in any judicial district of the United States: (1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State. (2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. (f) Δ = reasonable time to return waiver – 30 days from date which request sent/ 60 days if Δ outside US (h) delivering a copy of the summons and of the complaint to an appointed officer able to receive service, also by mailing a copy to the defendant. (m) Time Limit for Service: 120 days w/n filing complaint or there can be a dismissal

Rule 4.1

Service of Other Process (Not summons/subpoena)

(a) Served by US marshal/deputy US marshal/person specifically appointed (b)(2)(B) complete upon mailing service

Rule 5 Service & Filing Pleadings & Other Paper

(a) Everything = Served (unless otherwise provided) (c) Numerous ∆’s: ct may order that service of the pleadings of the defendants need not be made between the defendants, just notice to the plaintiff.

Rule 6 Time (a) Computation: by local rules of DC/court orders/ applicable statute - day of act/event/default designated pd or time not included - last day of pd = included, unless Sat., Sun., Legal Holiday or act = file in court and weather conditions not permit - Pd runs till end of next day - pd <11 days, intermediate Sat/Sun/legal holidays excluded

Rule 7 Pleading Allowed; Form of Motions

(a) complaint, answer, reply counterclaim, answer cross-claim, 3rd party complaint, 3rd party answer (b) Motions & Other papers: (1) motion is an application for an order. - Made @ hearing or in writing - State grounds & relief - Signed according to Rule 11 (c) Demurrers, Pleas abolished: Replaces by Rule 12(b)(6)

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Rule 8 General Rules of Pleadings (a) Claims for Relief: short plain statement (1) Jurisdiction, (2) Entitlement to relief- claim/remedy (3) Demand for judgment (b) Defenses; Forms of denials- general and specific (c) Affirmative defenses- Qualified Immunity - assumption of risk, arbitration, contrib. neg., bankruptcy, estoppel, failure consideration, fraud, duress, illegality erc. (d) Effect of Failure to Deny: if not deny in response = considered denied/avoided

Rule 9 Pleading Special Matters ( heightened pleading standard)

(b) plead particularity in fraud, mistake, and condition of the mind. - knowledge, intent, and malice can be plead generally or specifically

Rule 10

Form of Pleadings (a) Caption; Names of Parties- every pleading shall contain a caption setting forth the name of the court, title of action, file number, and a designation as in rule 7 (a). (b) ¶s; separate statements- numbered (c) Adoption by Reference; Exhibits

Rule 11

Signing Pleadings; Motions & Other Papers; Representations to Court; Sanctions

(a) Everything must be Signed by @ least 1 lawyer/party (b) Represent to court by filing- certify that to the best of the person’s knowledge, information or belief it is (1) not being presented for improper purpose (harass, delay, cost) (2) claims/defense/contentions warranted by existing law (3) evidentiary support or will after discovery/investigation (4) denials are warranted on evidence (c) Sanctions (1) How Initiated (A) Motion: “Safe Harbor Prov.” served by Rule 5, but NOT filed/presented to court unless w/n 21 days after service of motion…not withdrawn or appropriately corrected by Δ (B) Court’s Initiative: court order specific conduct (Safe Harbor not apply here) - sanctions limited to what is sufficient to deter repetition of conduct.

Rule 12

Defenses & Objection - When & How - Pleading or Motion - Motion for judgment on Pleadings Can be used in Subject Matter Jurisdiction and for Summary Judgment

(a) When presented: (1)(A) Δ shall serve an answer to a complaint w/n 20 days of being served a summons/complaint (1)(B) Timely waived on request, Rule 4(d) w/n 60 days of request for waiver = sent or w/n 90 days of date Δ addressed outside US (2) Cross-claim answer è 20 days from served, Π reply to counterclaim w/n 20 days (3)(A) US agency/officer/employee sued in official capacity answer w/n 60 days (B) sued in individual capacity – 60 days (b) How presented: every defense to a claim for relief shall be asserted in the responsive pleading; the following defenses may be made by motion (Dismissal replaced Demurrer) 1) SMJ- Constitutional competency attacks 1331, 1367, 2) PJ- power, 3) Improper Venue, 4) Insufficiency of process- need a summons and complaint 5) Insufficiency of service of process, 6) failure to state claim upon which relief can be granted (demurrer) 7) failure to join parties under Rule 19 (c) Motion for Judgment on Pleadings: - available to any party after pleadings are closed. Treated as one for

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Need to join indispensable party

summary judgment and disposed of as in Rule 56. - If matters outside pleadings presented & not excluded by court = motion summary judgment + disposed è Rule 56 parties = reasonable opp. to present material for motion (d) Preliminary Hearings: - Defenses (b)(1)-(7) & motion for judgment (c) heard + determined b4 trial unless otherwise ordered (e) Motion for more definite Statement: - Order obeyed w/n 10 days (f) Motion to Strike: (g) Consolidation of Defenses in Motion: (h) Waiver/Preservation of Certain Defenses - 1. following defenses are waived if omitted from a consolidation motion (12g) or if neither made by motion nor included in a responsive pleading (15a): lack of personal jurisdiction, venue, process, or service of process; 2. following defenses will be allowed at any time: failure to state a claim upon which relief can be granted, failure to join an indispensable party; failure to state a legal defense to a claim. 3. court shall dismiss an action for lack of subject matter jurisdiction

-*12h- waiver- if you don’t bring up affirmative defenses you waive them and you don’t get to bring them back. ,except for 1, 6, 7,

-12(b)(1)- matter of competence- court would not have competence, can’t hear - 12(b)(6)- no way relief can be granted, no basis for claim - 12(b)(7)- affecting someone’s interest but they are not there, failed to join.

Rule 13

Counterclaim and Cross Claim a) Compulsory Counterclaims: a pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. b) Permissive Counterclaims: a pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim. c) Counterclaim exceeding Opposing Claim: counterclaim can exceed the pleading of the opposing party d)Counterclaim against the US: shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims against the US g) Cross claims against Co Party: a pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counter-claim to the original action. h) Joinder of Additional Parties: Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20.

Rule 14

Third Party Practice a) When ∆ may bring in third party: A defending party, as a third party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff’s claims against the third party plaintiff. b) When ∏ may bring in third party: When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under this rule would entitle a ∆ to do so.

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Rule 15

Amended & Supplemental Pleadings

(a) Amended Pleading- pleading that replaces an earlier pleading and contains matters omitted from or not known at the time of the earlier pleading. May be amended 20 days after original service. Response within a minimum of 10 days to an amended pleading (b) Amendments to Conform to the Evidence- If evidence is objected to at trial because it was not within the pleadings, the court may allow the pleadings to be amended and the objecting party to meet such evidence. (c) Relation back of Amendments- can’t amend pleading to set forth a new and different claim or defense unless it involves the subject matter of the original pleading (d) Supplemental Pleadings

Rule 16

Pre-Trial Conferences The court can do anything motion.

Rule 17

Parties, Plaintiffs, Defendants Capacity

Every action shall be prosecuted in the name of the real party and interest. - Capacity to be sued or to sue.

Rule 18

Joinder of claims and remedies a) Multiply claims b) Multiply remedies

Rule 19

Joinder of persons needed for just adjudication

Indispensable rule; see 12 (b)(7)

Rule 20

Permissive joinder of parties (a) Multiple parties- can join as many plaintiffs and defendants (42 (a)) (b) There can be separate trials (in conjunction with 42 (b))

Rule 21

Misjoinder and Non-joinder of parties

Misjoinder: is not ground for dismissal of action. - you can add or drop parties by order of court

Rule 22

Interpleader- a party who owes something to one or more persons can force them all into court to decide issue in a single action.

Complete diversity needed; federal question must exist; amount in controversy must be at least $75,000.

Rule 23

Class Action Pre-requisites (a)(2) There has to be questions of law and fact common to the class.

Rule 24

Intervention Intervention as of a right- unconditional by statute; ability ot protect interest may be impaired directly. -a) must claim an interest relating to property or transaction which is subject matter of the action -b) discretionary with trial court; applicant’s claim or defense and the main action must have questions of law or fact in common.

Rule 25

Substitution of Parties Death or incompetency can be substituted.

Rule 37

Failure to Make or Cooperate in Discovery; Sanctions

a) Motion for order compelling disclosure or discovery 1) Appropriate Court 2) Motion reverse costs, assume facts, prohibit evidence, default/ strike. b) (2) Sanctions by court in Which Action Is Pending. (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.

Rule 42

Consolidation; Separate Trials 42 (a) in conjunction with 20 (a) 42 (b) in conjunction with 20 (b)

a) Consolidation: When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. b) Separate Trials: The court may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims as declared by the 7th amendment.

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Rule 50

Judgment as Matter of Law in Jury Trial � Alternative Motion for New Trial � Conditional Rulings a) Burden of Production b) Burden of Persuasion

(a) party fully heard on issue and there is no legally sufficient evidentiary basis for reasonable jury to find for party on issue. Therefore, court determines issue against party & grants motion for judgment as matter of law (∏’s burdern) (b) Movant renews request for judgment as matter of law by filing motion w/n 10 days of judgment entry – Rule 50 can be used in tandem with Rule 59 (for new trials) (∆’s burden) jnov- judgments as a matter of law - can bring up Rule 50 three times: (a) twice at trial (1-∏, 1-∆)(anytime before submission to the jury), and (b)once post verdict

Rule 52

Findings by Court Judgment on Partial Findings Bench Trial

(a) Effect – court finding facts w/o jury (b) Amendment – filed w/n 10 days courts amend filing or judgment (c) Court can find on issue & enter judgment as matter of law during trial (reversible only if “clearly erroneous”)

Rule 56

Summary Judgment (SJ) Burden of Production with regard to the movant

(a) Π can move for SJ after 20 days of start of action w or w/o affidavits (b) Δ may move @ any time for SJ w/ or w/o affidavits (c) Motion served w/n @ least 10 days b4 fixed hearing time - Opposing party can serve affidavits prior to hearing - 2 Grant SJ as matter of law if no genuine issue to any material fact and that moving party is entitled to a judgment as a matter of law - Interlocutory SJ on liability issue = no genuine issue as to damages amount (d) The court has a right to determine the facts that apply and the remedy that should be provided if it is not in accordance with a motion filed. (e) Affidavits made of personal knowledge, admissible in evidence, affirm affiant can testify to matters. Sworn/certified/attached. Can be supplemented. - Motion for SJ rest upon adverse party’s response by affidavits or other specifications when the facts show no genuine issue for trial. Therefore, burden is on the adverse party. (movant) (f) Affidavits = unavailable court may refuse application for judgment or order continuance to get info obtained (g) Affidavits in bad faith/delay è court order employing party to pay other party’s incurred expenses, including reasonable attorney’s fees - other party/attorney may be adjudicated guilty of contempt

Rule 57

Declaratory Judgments (DJ) - Procedure for obtaining = accordance w/ Title 28 § 2201-2202; actual case of controversy, further relief based on a declaratory judgment may be granted after reasonable notice and hearing

Rule 58

Entry of Judgment

Rule 59

New Trials (NT) Amendments of Judgments

(a) Grounds: to all/any parties & on all/any of issues (1) action where = trial by jury for any reasons US courts already granted new trials (2) action w/o jury for any reasons US courts already granted rehearing - Court may open judgment already made, take additional testimony, amend findings of fact/conclusions of law, make new findings/conclusions, direct entry of new judgment (b) Motion filed no later than 10 days after judgment entered (c) Affidavits must be filed w/ motion if = basis for NT - 10 days after service, file opposing affidavits (till 20 days) (d) Courts initiative order new trial w/n 10 days of judgment that would be justified if = motion

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- After parties = notice, opp. 2b heard court grant NT & reason not sated in motion & specify grounds (e) Motion to amend/alter judgment file no later than 10 days after entry of judgment

Rule 64

Seizure of Person of Property - have to be pursuant to state law; arrest, attachment, garnishment, replevin, sequestration, and they are available whether or not the remedy is ancillary to state action or the remedy must be obtained by an independent action.

5 factors in private law area for attacking a state statute:Fuentes 1) private interest affected by prejudgment hearing; 2)Risk of erroneous deprivation; 3) Probable value of safeguards; 4) Party seeking prejudgment hearing might be covenant in their property 5) ancillary govt interest.

Rule 65

Injunctions Needed for injunction: 1) no adequate remedy at law 2) Irreparable harm 3) Probability of success on its merits 4) Balance and equity 5)Public interest

Rule 68

Offer of Judgment It is a pre-trial rule (10 days before the start of the trial) If plaintiff rejects settlement offer by the defendant and then recovers less than the offered amount: 1) plaintiff may not collect his own costs after the offer 2) plaintiff must pay defendants costs incurred after the offer

Statutory

§1291 Final Decisions of District Courts The court of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States. The jurisdiction of the United States Court of Appeals for the Federal Court shall be limited to the jurisdiction described in sections 1292 (c) and (d)

§1292 Interlocutory Decisions- an appeal before the final decision

The court of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States thereof, granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions.

§1331 Federal Question The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Can not be an affirmative defense or a counter-claim

§1332 Diversity of Citizenship - Prejudice statute

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum value of $75,000 (excludes interest and costs) and is between: 1) citizens of different states 2) citizens of a State, and citizens and subjects of a foreign state. 3) citizens of different States and in which foreign states or citizens an in the parties. Domicile is the place of residence or intent to stay- Individual Domicile is the principal place of business- Corporation (c) (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. Dual Citizenship

§1367 Supplemental Jurisdiction When a federal court has proper original jurisdiction over a claim, it may hear all other claims that form part of the same case or controversy. The federal claim must be substantial enough to support federal question

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jurisdiction, and the federal and non-federal claims must arise from a common nucleus of operative fact such that they should be tried in one proceeding. a) In any civil action of which the district courts have original jurisdiction, the district courts shall have supp. Jurisdiction over all other claims that are so related to original jurisdiction that they form part of the same case of controversy under Article III (§1331)shall include the joinder or intervention of additional parties 12 (b)(1) would attack state claims; 12 (b)(6) would attack federal claims. b) In any civil action of which the district courts have original jurisdiction founded solely on §1332, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the FRCP, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24. c) The court may decline to exercise supplemental jurisdiction in its discretion: 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, 4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. d) The period of limitations for any claim for any claim asserted under a) and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal 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.

§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 defendant resides, if all defendants 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 (3) a judicial district in which any defendant 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 be brought in (1) a judicial district where any defendant resides, if all defendants 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. (3) a judicial district in which any defendant may be found (c) a defendant 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 (d) an alien may be sued in any district (e) Officer of the state or USA

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(f) foreign state

§1392 Defendants or Property in Different Districts in Same State

Any civil action, of a local nature, involving property located in different districts in the same State, may be brought in any of such districts.

§1404 Change of Venue (a) a district court may transfer any civil action to any other district of 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 may be transferred in the discretion of the court. Transfer of proceedings in rem brought by or on behalf of the US may be transferred under this section without the consent of the US 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.

§1406 Cure or Waiver of Defects (a)The district court of a district in which is filed a case laying venue in the wrong divison or district shall dismiss, or if it be in the interest of justice, transfer such case to any district in which it could have been brought

§1407 Multidistrict Litigation (a) When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.

§1441 Actions Removable Generally a) any civil action brought in a State court of which the district courts of the US have original jurisdiction, may be removed by the defendant or defendants to the district court of the US for the district and division embracing the place where such action is pending. b) any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution shall be removable without regard to the citizenship or residence of the parties (1331). Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought (homestate rule- no disadvantage). c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein and may remand all matters in which State law predominates. d) any civil action brought in a State court against a foreign state may be removed by the foreign state to the district court. Upon removal the action shall be tried by the court without jury. e) the court to which such civil action is removed is not precluded from hearing and determining any claim in such civil action because the state court from which the civil action is removed did not have jurisdiction over that claim.

§1442 Federal Officers or Agencies Sued or Prosecuted

a) a civil action or criminal prosecution commenced in a state court against an of the following may be removed to the district court of the US: 1) The United States or any agency thereof or any officer of the US sued in an official or individual capacity for any act under color of such office or on account of any right claimed under an Act of Congress. 2) A property holder whose title is derived from any such officer, where such action of prosecution affects the validity of any law of the US 3) Any officer of the courts of the United States, for any act under color of office or in the performance of his duties 4) Any officer of either House of Congress, for any act in the discharge of his official duty under an order of such house.

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b) A personal action commenced in a court of a State of the US against any citizen of a State who is a civil officer of the US and is a nonresident of such State, wherein jurisdiction is obtained by the State court by personal service of process, may be removed by the defendant to the district court of the US for the district and division in which the defendant was served with process.

§1443 Civil Rights Cases Any of the following civil actions or criminal prosecutions commenced in a state court may be removed by the defendant to the district court of the US 1) against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal rights of citizens of the US 2) for any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it ouwld be inconsistent with such law.

§1445 Nonremovable actions a) A civil action in any state court against a railroad or its receivers or trustees b) A civil action in any state court against a carrier or its receivers or trustees to recover damages for delay, loss, or injury of shipments unless the matter in controversy exceeds $10,000, exclusive of interest and costs. c) A civil action in any state court arising under the workmen’s compensation law of such state may not be removed. d) A civil action in any state court arising under section 40302 of the Violence Against Women Act of 1994 may not be removed.

§1446 Procedure for removal a) a defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the US for the district within such action is pending a notice of removal signed pursuant to Rule 11 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 defendant or defendants in such action. b) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant of a copy of the initial pleading setting forth the claim for relief upon which such action is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. d) promptly after the filing of such notice the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such state court, which shall effect removal and the state court shall proceed no further unless and until the case is remanded.

§1447 Procedure after removal generally

a) 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 court 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 issued to such State court. c) a motion to remand the case on the basis of subject matter jurisdiction must be made within 30 days after the filing of the notice of the removal under 1446a. Case shall be remanded if court lacks SMJ. d) an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except pursuant to 1443. e) if after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny

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joinder, or permit joinder and remand the action to the State court. §1448 Process after removal In all cases removed from any State court to any district court of the US in

which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, such process served proves to be defective.

§1631 Transfer to Cure Want of Jurisdiction

Whenever a civil action is filed in a court, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.

§1652 State Laws as Rules of Decision 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 action in the courts of the United States, in cases where they apply.

§1738 State and Territorial Statutes and Judicial Proceedings; Full Faith and Credit

The Acts of the Legislature of any State shall be authenticated by affixing the seal of such State. The records and judicial proceedings of any court of any such State shall be proved or admitted in other courts within the US by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. Such Acts, records, and judicial proceedings so authenticated, shall have the same full faith and credit in every court within the US as they have by law or usage in the courts of such State from which they are taken.

§1915 Proceedings in Forma Pauperis A prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding without prepayment of fees in addition to filing the affidavit.

§1927 Counsel’s Liability for Excessive Costs

Any attorney or other person admitted to conduct cases in any court of the US or any Territory thereof who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

§2201 Creation of Remedy In a case of actual controversy within its jurisdiction, any court of the US may declare the rights and other legal relations of any interested party seeking such declarations whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

§2202 Further Relief Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment

§2412 Costs and Fees US has to be a party and position has to be substantially justified or no fees

3 Sanctions Rule 11 1927 Inherent Powers (Chambers) Immunity Qualified immunity and absolute immunity – applies to govt entities, agencies and officials

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11th amendment – applies to states; states can’t be sued Defendant has to plead qualified immunity Objective standard in seeking immunity 5th amendment – due process applied to fed actions 7th amendment – civil jury trials 8th amendment – cruel and unusual punishment 14th amendment – due process applied to state actions II. Remedies and Attorney’s Fees