Civil Procedure II (Bockrath) Study Guide

Spring 2007
Overview Sheets Topic Rule 8... Rule 9 .. Rule 11 Rule 12 (b), (g), (h) . Rule 13 Rule 14 Rule 15 Rule 18 Rule 19 Rule 20 Rule 22 Rule 24 Rule 41 Rule 55 Rule 82 28 U.S.C. 1335 ... 28 U.S.C. 1367 ... 28 U.S.C. 1391 ... Practice problems from casebook ... Practice problems from class .. Page Number 2 7 8 12 16 20 24 28 31 35 37 38 41 45 50 51 52 57 59 74

Rule 8 General Rules of Pleadings

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the courts jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded. Rule 8(A) requires three items be in a pleading that sets for a claim for relief: o Short and plain statement of jurisdiction This refers to subject matter jurisdiction The claimant only needs to prove that subject matter jurisdiction exists; the burden is on the defending party to prove that any of the waivable defenses (personal jurisdiction, venue, process, service of process) are not proper o Short and plain state of the claim showing the pleader is entitled to relief The claimant must shortly and plainly establish that (according to him/her) all elements of the claim are met Ex: I claim you committed negligence; I have to lay out (shortly and plainly) duty, breach, proximate cause, cause in fact, and damages This must be read in pari materia of Rule 9, which establishes exceptions to Rule 8(A)(2), usually pointing to a particularity necessary for the pleading This is the section from which a Rule 12(B)(6) defense will arise If the claimant does not establish all facts necessary for the claim, there can be a failure to state a claim If the claimant establishes extra facts that prove he/she cannot win, there can be a failure to state a claim Procedural tactic: Rule 15 establishes that the receipt of a responsive pleading cuts off the right to amend, as a matter of course (this means you must ask the judge if you want to amend the pleading) Theoretically this would mean if you were going to use Rule 12(B)(6) as your defense, you would want to raise it via pleading rather than motion, because a motion does not cut off the right to amend In practice, most judges will allow a party to amend a pleading due to failure to state a claim o Demand for relief Regardless of what you ask for, you will get what you proved In other words, I may seek $75,000 in damages (my demand for relief), but I may prove I deserve $150,000 in damages; I will receive $150,000 The only time you receive only what you ask for is in a default judgment This applies to all claims for relief, regardless if they fall in claims, counterclaims, cross-claims, etc.

(b) Defenses; form of denials. A party shall state in short and plain terms the partys defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. 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. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or may generally deny all averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments, including averments of the grounds upon which the courts jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Rule 11. Rule 8(b), (c), and (d) provide the boundaries of the answer, regardless of if it includes a counterclaim or not Rule 8(b) specifically covers denials o Claimant alleges facts X, Y, and Z; defending party thinks fact X and Y are incorrect, so the defending party would deny those facts o If something is not denied (ex: Z above), then it is accepted as fact, so even if it did not happen in reality, it did happen as a matter of law (see Rule 8(e)) o Remember, according to McCormick, a party may provide multiple defenses that are alternative and/or hypothetical, provided those defenses are in compliance with Rule 11 To fairly deny means to squarely deny o Ex: If the claimant claims the defending party was in Chicago on the day of the accident, the defending party should deny this by saying, I was not in Chicago on the day of the accident, instead of I was in Boston on the day of the accident; the latter is an argumentative denial, and can be construed as an admission of the facts alleged by the claimant o The flip side of the argumentative denial is the negative pregnant denial, which is too specific Ex: If the claimant claims the defending party was driving 70 mph and the defending party denies this by saying, I was not driving 70 mph, some courts construe this to mean the defending party is admitting to driving 69 mph (or less) or 71 mph (or more)

(c) Affirmative defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. The common theme for all affirmative defenses is they add new material to the trial that, if true, deflect the consequences of the claimants claim without negating the existence of the claimants claim o Note, the use of 8(c) by itself does not admit truth in the claimants claim; it merely deflects the consequences without negating the existence of the claimants claim The defending party must set forth any affirmative defenses to the claimants claim, otherwise the defending party will not be allowed to submit evidence of the affirmative defense This is a non-exclusive list o There is no downside to pleading something you are not sure if it is/isnt an affirmative defense; put it in if you arent sure because there is a downside to not putting it in

(d) Effect of failure to deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. Only those things denied will be litigated; failure to deny something admits that it is true (regardless of if it really is) If an averment is made in a pleading which does not permit a response, the averment will be taken as denied

(e) Pleading to be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. (2) A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defense as the party has regardless of consistency and whether based on legal, equitable or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11. There is no prohibition under Rule 8(e) to pleading alternative and inconsistent theories and defenses (as highlighted in McCormick v. Kopmann), but all pleadings are subject to Rule 11 which requires all information in the pleading to be correct to the best of the claimants knowledge

Rule 9 Pleading Special Matters

Rule 8(a)(2) establishes every pleading must include a short and plain statement of the claim showing the pleader is entitled to relief o This means if I want to claim negligence in Louisiana, I have to include in my short and plain statement of the claim all elements of negligence (duty, breach,) o I do not have to prove the elements, but merely lay out that they exist Ex: I was walking on the sidewalk when the s car came on to the sidewalk and struck me, thus causing me to break my leg and hip. Rule 9 points out when something other than a short and plain statement of the claim is required o All of the requirements are because if this item were brought up in court for the first time, it would be a surprise to the

(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleaders knowledge. You do not have to allege that you have capacity or that the person you are suing has capacity, but if you want to allege that you (or the person you are suing) does not have capacity, then your claim must include supporting particulars (i.e. more than the general requirements)

(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. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. If claiming fraud or mistake, the claim must be made with particularity; there is no general allegation of fraud or mistake Policy reasoning behind this: the allegation of fraud sticks like mud, so the burden is placed on the claimant to spell out what the fraud was, so to help legitimize fraud claims

(g) Special Damage. When items of special damage are claimed, they shall be specifically stated. Special damages are generally things for which receipts can be produced and must be stated. o Ex: I get hit my you while walking on the sidewalk. Pain and suffering are not special damages, they are expected, so they do not need to be specifically stated in the pleading (Rule 8(a)(3)); but my medical bills are special damage maybe Ill say who cares about going to the doctor for this little scratch? so if I want to get medical expenses as damages, I have to specifically state such

Rule 11
(a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorneys individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signers address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. Rule 11(a) applies to all documents (pleadings, motions, and other papers) and establishes that all of these documents must be signed by an attorney of record The penalty is the unsigned paper must be stricken unless its corrected

(b) Representation to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defense, and other legal contentions therein are warranted by existing law or by nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. Rule 11(b) applies to all documents (pleadings, motions, and other papers) and all representations to the court; however discovery is not covered by Rule 11 (see Rule 11(d)) Rule 11(b) establishes that all of the above documents and representations must be to the best of the attorneys knowledge must be: o Not presented for an improper purpose o Warranted by existing law or a non-frivolous argument for the extension, modification, or reversal of existing law o Allegations have factual support or likely to have evidentiary support after investigation/discovery Note that evidentiary support includes testimony, so something false can have support o Denials are warranted on the evidence The attorneys knowledge is on the knowledge reasonable under the circumstances; this is a somewhat temporal effect o Ex: tort case brought the last day before prescription runs out does not leave the attorney much time to get all the details, so what is reasonable for the attorney to know is lower in those circumstances than an attorney that got the case on day 1

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. (1) How Initiated. (A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorneys fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees. (B) On Courts Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto. Opposing party brings a Rule 11 violation by motion, but that motion is not filed with the court, it is served on the opposing party said to be making the Rule 11 violation; the opposing party then has 21 days to correct the violation; if the party does correct, then the motion never is filed with the court; if the party does not correct, then there is a hearing before the court o This rule (the Safe Harbor Provision) was added in 1993 If the court thinks there is a Rule 11 violation, the court may enter an order of violation, thus requiring the attorney to show cause why it has not violated Rule 11 (2) Nature of Sanctions; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys fees and other expenses incurred as a direct result of the violation. (A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2). (B) Monetary sanctions may not be awarded on the courts initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned. (3) Order. When imposing sanctions, the court shall described the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

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(d) Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply to disclosure and discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37.

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Federal Rule 12 (B), (G), and (H)

(B) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. If you have any claim against you (i.e. you are the defending party), you have Rule 12 available to you The 7 defenses of Rule 12 may be filed by motion, but do not have to be; all claims for relief may be made by responsive pleading if one is required o Rule 7(A) lists the pleadings: Complaint Answer Reply o Only the answer and reply are responsive pleadings, and the reply is only made in response to a counterclaim o The 7 defenses that can be filed by motion are: Lack of subject matter jurisdiction Lack of personal jurisdiction Improper venue Insufficiency of process The paperwork was not correct Insufficiency of service of process Failure to state a claim upon which relief can be granted The claim requires the claimant prove X, Y, and Z, but the claimant only stated X and Y in the second part of the complaint Failure to join a party under Rule 19 o If one of these defense is going to be raised by motion, the motion must be made before pleading Joining defenses in a responsive pleading or motion does not waive them (i.e. defenses may be joined) this is expounded upon in Rule 12(G) 12(B)(6) motion + outside materials = motion for summary judgment o Example: I am in a car wreck in 2004, but I dont file until 2006; statute of limitations has run out, but I dont mention the date of the accident in the complaint, so you cannot file a 12(B)(6) motion against me without more material; you can file a 12(B)(6) motion and a copy of the police report with the date on it, and it would be treated as a motion for summary judgment

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(E) Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. This only applies to those pleadings to which a responsive pleading is permitted, so only to complaints and answers that contain counterclaims (with the reply being the responsive pleading).

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(G) Consolidation of Defense in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated. Part (G) refers only to motions made under Rule 12, but it refers to those in and out of part (B) Rule 12 motions can be joined together (i.e. they can be made at the same time) o It is not required to join motions, but there are consequences to not joining some motions; the consequences are laid out in Rule 12(H) Once you make a motion under Rule 12, you cannot make another motion until you plead, expect as provided by Rule(H)(2) and (theoretically) subject matter jurisdiction o The basic idea: you cannot make sequential Rule 12 motions prior to pleading Keep in mind, waiver is not imposed by Rule 12(G); misuse of Rule 12(G) creates the waiver of defenses under Rule 12(H)

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(H) Waiver or Preservation of Certain Defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course. If defenses 2 5 from Rule 12(B) are not joined in a motion made under Rule 12 or a responsive pleading, and either a motion or responsive pleading is made, then those defenses are waived This only refers to defenses 2 5; there are different rules for 1, 6, and 7 o Ex: I make a motion under Rule 12, but do not join the defense of lack of personal jurisdiction; that defense has now been waived Defenses 2 5 are called waivable defenses o The theory behind waiver is the waivable defenses are claiming that for some reason, the court has no jurisdiction over you; if you make a motion or responsive pleading, you are asking the court to do something (motion) or presenting contentions as your client sees them to the court (pleading); you should not be able to ask the court to do something and then tell the court it has no jurisdiction over you; if the court has no jurisdiction over you, it should never have done/taken your first motion/pleading

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits. Rule 12 (B) defenses number 6 and 7 are not waived if they are not joined in the original motion or responsive pleading, but when you can raise them (if not joined) is limited to: o Pleading permitted under Rule 7(a) Pleadings under Rule 7(a) are complaint, reply, and answer o Motion for judgment on the pleadings Note, pleadings is plural, which means there has to be more than one, so you have to have given a responsive pleading o Trial on the merits Once I make a Rule 12 motion, I am precluded from any more pre-answer motions (save lack of subject matter); defenses 6 and 7 are not waived if they were not joined in the original motion/responsive pleading, but they can only be brought up at certain times

(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. Lack of subject matter jurisdiction can always be raised by either party and even the court o The only exception to this rule (and some would argue it is not an exception) is that lack of subject matter jurisdiction cannot be raised during an enforcement proceeding Ex: A default judgment is rendered against me in Mississippi; the comes to Louisiana to have it enforced; the only defense I can raise is lack of personal jurisdiction; I cannot raise lack of subject matter jurisdiction

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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 partys claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13. If a claim arises out of the same transaction or occurrence, the pleader must bring it in a counterclaim provided it does not require the presence of a third party whom the court cannot get personal jurisdiction over o Note that jurisdiction refers to personal jurisdiction; if the claim is arising out of the same transaction and occurrence, the court will have subject matter jurisdiction under 1367 if nothing else If the court cannot get personal jurisdiction over the third party that is required, then that counterclaim is no longer compulsory, so it is not waived because you cannot bring it Whether the third party has to be there is based on Rule 19 o If the pleader does not bring such a counterclaim, the pleader loses (waives) that counterclaim, except in two scenarios: The claim was the subject of another pending action when the current action commenced The opposing party gained jurisdiction over the defending party by attachment (rule 4(n)) and the pleader is not bringing any counterclaim

gains personal jurisdiction via attachment over ; property attached is valued at $80K, so that is the highest value the is risking at the moment; if files a counterclaim, is consenting to personal jurisdiction, so the value at risk becomes unlimited

o A default judgment precludes brining up old counterclaims Ex: You sue me and get a default judgment. Upon enforcement of that judgment, I cannot bring up a compulsory counterclaim

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(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 partys claim. Permissive counterclaims will not have supplemental jurisdiction (except in certain circumstances in the 2nd Circuit)

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(g) Cross-claim against co-party. A pleading may state as a cross-claim any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such crossclaim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

1
1 files cross claim against 2; provided one claim arises out of transaction/ occurrence that is the subject matter of s claim (Rule 13(g)), 1 can then join as many other claims as he has against 2 (Rule 18)

2
or of a counterclaim therein refers to a permissive counterclaimotherwise it would be redundant Only one type of cross-claim must arise out of same transaction and occurrence

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(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. If has a counterclaim, can join an additional party; this joinder is governed by Rule 13(h), so part be of supplemental jurisdiction would not take away jurisdiction (if supplemental was needed) o A party joined by Rule 13(h) is not a party joined by Rule 19 or Rule 20 for the purposes of supplement jurisdiction

can join these parties under Rule 13(h)

X
Counterclaim

Note that this does not mean a person can be made a party and then have a cross-claimed filed o Rule 13(h) does not create any cross claims or counterclaims o Without Rule 13(h), all of the same parties could be joined (usually pursuant to 20), but supplemental jurisdiction would be affected because parties joined via Rule 13(h) are NOT parties joined via Rule 19 or 20

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Rule 14 Third-Party Practice

(a) When Defendant may bring in third party. At any time after commencement of the action 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 plaintiffs claim against the third-party plaintiff. Defending party = anyone with an claim coming at them Rule 14 is only available to someone who is NOT a party to the action (i.e. non-parties) o With one exception, the cannot compel the to join someone as a defendant The non-party must be liable to the for claims the has against the o There must be contribution or indemnity The rules of jurisdiction still apply to third party defendants, so the court must have personal jurisdiction over the third party defendant; remember, though, the 100 mile bulge rule from Rule 4(k)(1)(b) applies to parties joined by Rule 14 and 19, so service of summons is effective to gain jurisdiction over the third party defendant if that person is within the 100 mile bulge o Also has 4(k)(1)(a) [application of state long arm statute] and 4(k)(1)(d) [federal statute]

Third party plaintiff

Third party claim (impleader) Third party must be liable for the s claim against the third party

Third party defendant

The third-party plaintiff need not obtain leave to make the service if the third party plaintiff files the third-party complaint not later than 10 days after serving the original answer. Otherwise the third-party plaintiff must obtain leave on motion upon notice to all parties to the action. The person served with the summons and thirdparty complaint, herein after called the third-party defendant, shall make any defenses to the third-party plaintiffs claim as provided in Rule 12 and any counterclaims against the third-party defendants as provided in Rule 13. Rule 12 defenses are available to the third party just as they are available to the , though the merits will likely be different

Third party plaintiff

Third party can raise defenses against Third Party (think Rule 12 jurisdiction, but not venue)

Third party defendant

Rule 13 allows the third party to make counterclaims against the third party 20

The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiffs claim.

Third party can raise defenses Third party has against (raised in answer because all pleadings served on all parties)

Third party plaintiff

Third party defendant

The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third-party plaintiff.
Third party can assert a claim for relief against a that rises out of the same transaction/occurrence that is the subject matter of the claim against the third party

Third party defendant Third party plaintiff

This basically puts the third party defendant in the same position he would have been in had he been joined as an original o The only thing he cannot do is bring a permissive counterclaim alone (if he had a claim from the same transaction/occurrence, then he could join permissive counterclaims under Rule 18 if you say this impleader claim is the same as a third part claimremember Rule 18 only covers original claims, counterclaims, cross claims, and third parties claims) Theory: third party means something other than just impleader, so all claims within this are third party claims (all claims under Rule 14 are third party claims within the meaning of Rule 18) o This is called downward sloping Rule 14 claim

The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third-party plaintiff, and the third-party defendant thereupon shall assert any defenses as provided in Rule 12 and any counterclaims and cross-claims as provided in Rule 13.
can assert claims against third party arising out of same transaction/occurrence

Third party defendant Third party plaintiff

This is the upward sloping Rule 14 claim Once and third party become opposing parties, then the third party can bring any claim (it will be a counter claim) o Whether you are using Rule 14 or Rule 13(a)/(b) depends on who files the claim first

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Any party may move to strike the third-party claim, or for it severance or separate trial. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to the thirdparty defendant for all or part of the claim made in the action against the third-party defendant. The third-party complaint, if within the admirality and maritime jurisdiction, may be in rem against a vessel, cargo, or other property subject to admirality or maritime process in rem, in which case references in this rule to the summons include the warrant of arrest, and references to the third-party plaintiff or defendant include, where appropriate, a person who asserts a right under Supplemental Rule C(6)(b)(i) in the property arrested. Rule 14 does not create any substantive rights; it does accelerate the rights (Markvicka) o If there is no allowance for indemnity or contribution in a particular jurisdiction, then Rule 14 does not create indemnity or contribution

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(b) When plaintiff 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 defendant to do so.

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Rule 15
(a) Amendments. A party may amend the partys pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the partys pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the loner, unless the court otherwise orders. Applies only to any pleading (complaint, answer, reply), not to motions Right to amend once as a matter of course o This is as opposed to with consent of the other party or with judges permission o By leave of the court (with the judges permission) is freely given Note that the rule doesnt say anything about what amendment is going to be; the amendment could be to add a counterclaim o Rule 15(a) only gives temporal constraints to amending Rule 12(h)(1) [waiver] cross-references Rule 15(a), such that if you include a waivable defense in your amended pleading, you have not waived it (but it must be amended as a matter of course) o This means if someone serves a counterclaim and omits a waivable defense, you should reply immediately as it will cut off his ability to amend This deals with three different parts: o How to deal with pleadings which allow a responsive pleading o How to deal with pleadings to which a responsive pleading is not permitted o How to respond to an amended pleading
files a complaint

must amend complaint before serves an answer because the complaint does permit a responsive pleading

serves an answer must amend answer within 20 days because the answer does not permit a responsive pleading

files an amended complaint; has same amount of time to respond to respond to the amended complaint as did to respond to the original complaint (ex: if had 15 days left to respond to original complaint, post amendment, still has 15 days left to respond to amended complaint); only exception is if the had less than 10 days to respond to the original complaint, then the now gets 10 days to respond to amended complaint (ex: had 4 days left to respond to original complaint when it is amended; not the has 10 days to respond to amended complaint)

Arising from A

Arising from B Note: a reply can include a claim for relief just as an answer can

Arising from B

24

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the partys action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. If something is offered outside of the scope of the pleadings, 15(b) tells us how to get it in First two sentences cover when evidence is not objected to; third sentence is when evidence is objected to o No objection: Treated as if they had been raised in the pleadings So if you dont object, you have essentially waived the objection to the evidence You should object on grounds of variance (varied from pleadings) After you bring up evidence not objected to (and not included in the pleadings), the lawyer bringing the evidence can move to conform the pleadings to the evidence There is no difference to the result of the trial, so it is not necessary for the instant case, but it is necessary if you want to use that information at a later date for a later trial o Objection: If objected to, the party objecting must satisfy the court that the admission of the evidence would prejudice the objecting party in maintaining the partys action or defense Prejudice = admission harms presentation o Ex: You dont include contributory negligence from Rule 8(c) as an affirmative defense, but you begin to raise contributory negligence evidence. I object on grounds of variance, and satisfy the court that your presentation of contributory negligence will harm my presentation of the case Rule 8(c) says what the rule is for affirmative defenses; Rule 15(b) says what to do when the other party has violated Rule 8(c) Remember, 8(c) is only one way to kick in 15(b); anytime evidence is introduced that is not covered by the pleadings, 15(b) applies The court may grant a continuance to enable the objecting party to meet the evidence In practice, Court is more likely to give continuance to a bench trial; less likely to give in a jury trial

25

(c) Relation back to amendments. An amendment of a pleading relates back to the date of the original pleading when (4) Relation back is permitted by the law that provides the statute of limitations applicable to the action, or (5) The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (6) The amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have know that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. The delivery or mailing of process to the United States Attorney, or United States Attorneys designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirements of subparagraphs (A) and (B) of this paragraph (3) with respect to the United States or any agency or officer thereof to be brought into the action as a defendant. This assumed you can amend an pleading, either as matter of course or by approval Parts 1 and 2 deal with the amended pleading occurring after prescription has been cut off

Event giving rise to the claim

File Pleading

Prescription period cut off

File Amended Pleading

Amended pleading must relate back to the original pleading because it arose out of the same transaction or occurrence set forth in the original pleading (this is 15(c)(2), or it must relate back as permitted by law (this is 15(c)(1))

Part 3 deals with a person not being added in time, so prescription with regard to that person has been cut off (the requirements of part 3 make its occurrence rare)

Event giving rise to the claim

File Pleading against A

Prescription period cut off

File Amended Pleading against B

Amended pleading to change the partys name must: Arise from same transaction or occurrence set forth in original pleading Be filed with timeframe of Rule 4(m), which is 120 days New party must not be prejudiced by delay New party must have known or should have known the action would have been brought against him, but for a mistake concerning identity

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(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time thereof. Supplemental pleadings add to pleading things that occur after the filing of the pleading o Ex: I file a complaint against you for breach of contract; thereafter, you do something else to me for which I can file a claim of relief; I would file it as a supplemental pleading Supplemental pleadings are different than amended pleadings, because amended pleadings add to the pleading events that occurred before the filing of the pleading You can amend a supplemental pleading

27

Rule 18 Joinder
There are two types of joinder: claim joinder and party joinder Within each type of joinder, there are permissible joinders and compulsory joinders

(a) Joinder of claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal equitable, or maritime, as the party has against an opposing party. Rule 18 (a) merely states that the claimant can join as many claims as he has against the opposing party o The claims are not required to be or precluded from being related However, if there are claims arising from the same occurrence and they are not brought together, the claimant may be precluded from bringing them later o Rule 18 says nothing of permissive and compulsory claims; both can be joined Under Rule 18, you must meet the rules first

1
The 1 must have a claim transactionally related before he can join other non-related claims

2
Cross claimshow Rule 18 and Rule 13 work together o Rule 13(g) requires that cross claims arise out of the transaction or occurrence that is the subject matter of the original action or a counterclaim therein o Provided Rule 13(g) is met, as many additional claims as desired can be joined under Rule 18 (see below)

files complaint against 1 and 2

1
1 files cross claim against 2; provided one claim arises out of transaction/ occurrence that is the subject matter of s claim (Rule 13(g)), 1 can then join as many other claims as he has against 2 (Rule 18)

28

Remember rules of aggregation: individual can aggregate his claims, multiple s cannot o If the claims can be joined, they can be aggregated

Claim 1 ($50K) Claim 2 ($25K)

Can be aggregated to $75K, so supplemental jurisdiction is not needed

29

(b) Joinder of remedies; fraudulent conveyances. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set a conveyance fraudulent as to that plaintiff, without first having obtained a judgment establishing the claim for money.

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Rule 19 Compulsory Joinder

(a) Persons to be joined if feasible. A person who is subject to service of process (THIS MEANS PERSONAL JURISDICTION IS PRESENT) and whose joinder will not deprive the court of jurisdiction over the subject matter of the action (THIS MEANS SUBJECT MATTER JURISDICTION) shall be joined as a party in the action if (1) in the persons absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the persons absence may (i) as a practical matter impair or impede the persons ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue (HERE IS THE VENUE REQUIREMENT OF FEASIBILITY) and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action. Rule 19 covers the circumstance in which can compel a new when the did not choose that additional o It can also occasionally be used to compel joinder of an additional o This allows (usually) the to alter the architecture of the parties It describes the process by which the court uses to determine if someone has to be joined, or, if he does have to be joined but cant be, what the court should do to continue the process o Does this by dividing it up into need and feasibility Need Rule 19(a)(1) o This is almost never used Rule 19(a)(2) o Person claims an interest relating to the subject of the action and is so situated that either (a) their absence may impair/impede the persons ability to protect that interest or (b) their absence causes parties already joined (likely ) a substantial risk of incurring double, multiple, or inconsistent obligations to the claimed interest Note: potential co-tortfeasor is not a necessary party (Temple); part of the reasoning behind Temple was that the had the opportunity to bring in the third party via Rule 14 o Note that personal jurisdiction under Rule 4(k)(1)(b) [100 mile bulge] operates the same for Rule 19 and Rule 14

Supplemental jurisdiction will not be available if the and 2nd possible are not diverse because it is a claim by a against a party joined under Rule 19

In Temple, because 2nd possible could be brought in via Rule 14, Court not inclined to consider the party necessary under Rule 19

2nd possible

31

Feasibility If the party is needed under 19(a), then look at 3 components of 19(a): o Personal jurisdiction Personal jurisdiction can be gained via Rule 4(k)(1)(a) [state statute], 4(k)(1)(b) [100 mile bulge], or Rule 4(k)(1)(d) [federal statute] Note: if personal jurisdiction is found under Rule 4(k)(1)(d), then what does that mean for supplemental jurisdiction? It means that the subject matter jurisdiction is going to be federal question because Rule 4(k)(1)(d) is regarding federal statute; this means you can skip 1367(b) o Subject matter jurisdiction o Proper venue It says if venue is improper, the party will be dismissed, but if personal jurisdiction or subject matter jurisdiction is lacking, party will be dismissed, too is there a reason why venue is separated in Rule 19? Theoretically, should personal jurisdiction and venue be separated from subject matter jurisdiction for determining (under Rule 19(b)) if litigation can continue because the party can consent to those jurisdictions? Is this a selfinflicted wound? Venue refers to all venues, not necessarily the particular venue that was chosen Ex: Venue is appropriate for in States A and B; files suit in State A; compels joinder of 2; venue is appropriate for 2 in States B and C; venue is still feasible in this situation because and 2 have State B in common as proper venue (and 2 could consent to a different venue) This is unique because determination of feasibility is dependent on PJ, SJ, and venueif any are missing, then the joinder is not feasible o If a party is deemed to be necessary, but its not feasible, then move to Rule 19(b) o If a party is deemed to be necessary and it is feasible, then the court compels the joinder of the party Dismissal of a party pursuant to Rule 19 does not act as an adjudication on the merits; however, failure to join a party under Rule 19 does operate as an adjudication on the merits under Rule 41(b)

32

(b) Determination by Court whenever joinder not feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the persons absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the persons absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. Rule 19(b) tells us what to do if the joinder is necessary but is not feasible this determines if the action should continue or not o If such a party is deemed to be indispensable, then the action is dismissed To be indispensable, the party must be necessary under Rule 19(a), not feasible under Rule 19(a), and the court cannot continue is his absence the litigation under Rule 19(b) The criteria under Rule 19(b) is how the court determines if a party is indispensable (indispensability is a consequence of 19(a) and 19(b)) ; criteria include: o If the will have an adequate remedy if the action is dismissed This would kick in if there was an exclusive federal jurisdiction case because the would have no other remedy

33

(c) Pleading reasons for nonjoiner. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons they are not joined. Rule 19(c) must be read in conjunction with Rule 8 (and parts of Rule 9) because it is a pleading requirement o Under Rule 19(c), the (or whoever is pleading a claim for relief) has to state the names of persons who should have been joined under Rule 19(a) [necessary] but are not, and the reasons they are not joined Normally, Rule 19 is invoked by the
Complaint under 19(c) if the 2nd possible is necessary under 19(a), the should list the 2nd possible in the complaint (this almost never happens)

2nd possible
Does the court have a responsibility to notify such persons?

34

Rule 20 Permissive Joinder of Parties

(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons (and any vessel, cargo or other property subject to admiralty process in rem) may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities. To join a plaintiff or a defendant, the joiner must: o (1) Have a right to relief (or right asserted against them) arising out of the same transaction, occurrence or series of transactions/occurrences, and o (2) Common question of law or fact will arise

35

(b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.

36

Rule 22 Interpleader
(1) Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joined that the claims of the several claimants or the title on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule 20. (2) The remedy herein provided is in addition to and in no way supersedes or limits the remedy provided by Title 28, USC 1335, 1397, and 2361. Actions under those provision shall be conducted in accordance with these rules.

37

Rule 24 Intervention
Intervention is the situation in which a non-party is reaching in to become a party There are two types of intervention: intervention as a a right and intervention as a matter or perspective (permissive) o Note that intervention as a right is NOT compulsory

Non-party wants to intervene

Non-party wants to intervene

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicants ability to protect that interest, unless the applicants interest is adequately represented by existing parties. anyone anyone regardless of jurisdiction; this must be read in pari materia with Rule 82, which says the rules to not extend jurisdiction o Anyone = anyone over which the court has jurisdiction Two situations when a party can intervene as a matter of right: o Statute confers unconditional right Ex: the federal government can intervene as matter of right in a number of situations o Applicant claims interest in property/transaction that is the subject of the action, and the action may impair or impede the applicants ability to protect that interest Ex: Haas if party was not added under Rule 19, he could have intervened via Rule 24 This means that if you can be compel the joinder of a party under Rule 19, that party can intervene under Rule 24 Note, however, that Rule 24 is not compulsory; there is no claim preclusion if you fail to join The advantage of Rule 24 over Rule 19 is that the feasibility issues of personal jurisdiction and venue are not a problem because in intervening, you are consenting to those items Supplemental jurisdiction and Rule 24(a)

Supplemental if intervener is not diverse from ? Intervention will be same case and controversy (since must be interest in same transaction/occurrence), so passes 1367(a) However, loses on 1367(b) because it is now a claim by a person seeking to intervene as a under Rule 24

Supplemental if intervener is not diverse from ? Intervention will be same case and controversy (since must be interest in same transaction/occurrence), so passes 1367(a) However, loses on 1367(b) because it is now a claim by a against a person made a party under Rule 24

Non-party wants to intervene

Non-party wants to intervene

What if the person was seeking to join as a , but the judge realigns them to side? 38

(b) Permissive intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicants claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Whereas intervention as a right uses the word shall, permissive intervention uses the word shall The court determines if the intervention is appropriate; the rule lays out how the court makes this determination o Statute allows conditional right to intervene o Common question of law or fact This is the same language from Rule 20 (permissive joinder of parties), but does not have the same transaction/occurrence language, so someone who could not be joined under Rule 20, may be allowed to intervene Supplemental jurisdiction and Rule 24(b) o Likely there is no supplemental jurisdiction because it would not be the same case and controversy If it was the same case and controversy, the party would intervene under Rule 24(a) o Regardless, if there is the same case and controversy, then the same results would occur from Rule 24(a)

39

(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefore and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action to which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, USC 2403. When the constitutionality of any statute of a State affecting the public interest is drawn in question in any action in which that State or any agency, officer, or employee thereof is not a party, the court shall notify the attorney general of the State as provided in Title 28, USC 2403. A party challenging the constitutionality of legislation should call the attention of the court to its consequential duty, but failure to do so is not a waiver of any constitutional right otherwise timely asserted. The intervener files a complaint in intervention The response is an answer in intervention

40

Rule 41 Dismissal of Actions

(a) Voluntary Dismissal: Effect Thereof. (1) By Plaintiff; by stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of the court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim. Rule 23 refers to class actions and Rule 66 refers to receiverships; they have their own rules because of the number of parties involved Without prejudice means can file the action again; with prejudice means you cannot file the action again (if dismissing, you want to dismiss without prejudice) Two ways for to dismiss s claim: o File a notice of dismissal either before service by adverse party of the answer note it says answer; this does not apply to a reply this is triggered by the service of the answer before motion for summary judgment, whichever occurs first a 12(B)(6) (+ outside material) motion acts as a motion for summary judgment, so it also triggers the point where you can no longer dismiss o Filing a stipulation of dismissal signed by all parties who have appeared in action This is technically without order of the court but all parties have to have appeared in action You only use the stipulation method if the first method (part i) is no longer available to you State courts do not have to follow Rule 41, but a dismissal in state court acts as a dismissal in federal court for purposes of limitations to the number of times you can refile o How the first filing was dismissed is irrelevant (presuming it was without prejudice), you can always file a second time; the manner of the second dismissal determines if you can refile a third time o When there are sequential dismissals and the second dismissal is a dismissal by notice in federal court, the second dismissal acts as an adjudication on the merits
NOTICE NOTICE STIPULATION STIPULATION

First time, dismiss by

Second time, dismiss by

NOTICE

STIPULATION

NOTICE

STIPULATION

Can you file a third time?

NO

YES

NO

YES

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(2) By Order of the Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiffs motion to dismiss, the action shall not be dismissed against the defendants objections unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. Rule 41(A)(2) is only used if (A)(1) is not available, which means that the opportunity for part (i) has temporally passed by and the will not agree to part (ii) The court has much leeway in its determination of whether or not to dismiss, but there is one instance in which the court cannot dismiss o The court cannot dismiss if the has pleaded a counterclaim prior to the service upon the of the s motion to dismiss, unless that counterclaim can stand alone o There are some exceptions to this via supplemental jurisdiction o Supplemental jurisdiction is a statutory process by which some claims that would not stand on their own may be allowed to Ex:
Claim for $80,000

Counterclaim for $50,000

Under FSMJ, the counterclaim would not be able to stand alone because it is not over $75,000 (provided this was based on diversity); however, via supplemental jurisdiction, this may be allowed to stand alone o Note, you do not worry about whether or not the claim can be dismissed due to the counterclaim under Rule 41(A)(i) because the fact that there is a counterclaim means there was an answer served by the adverse party, so 41(A) is temporally cut off from use

42

(b) Involuntary dismissal: effect thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. Local rules usually govern what constitutes failure of the plaintiff to prosecute Not complying with the rules can get a involuntarily dismissed o As clearly stated, the can move for a dismissal if the fails to prosecute or if the does not comply with the rules, but the court on its own can also move to dismiss Dismissals that do not act as an adjudication on the merits: o Dismissals not included in Rule 41(a)(1) or (2), i.e. voluntary and involuntary o Dismissals for lack of jurisdiction o Jurisdiction in this sense refers to all methods of obtaining jurisdiction, including subject matter jurisdiction, personal jurisdiction, improper service, improper service of process o Dismissal for improper venue o Dismissal for failure to join a party All other dismissals act as an adjudication upon the merits, unless the court specifies otherwise o Ex: The files a motion for improper service of process; judge dismisses according to motion. Is that an adjudication on the merits? No, because improper service of process falls in the dismissal for lack of jurisdiction clause, for which a dismissal does not act as an adjudication on the merits. o Ex: The files a motion for failure to state a claim upon which relief can be granted; judge dismisses according to motion. Is that an adjudication on the merits? Technically, yes. However, note that the court can otherwise specify, and frequently particularly when talking about failure to state a claim the court will specify that it is not an adjudication on the merits. Also, read Rule 41(b) in light of Rule 60(b), which provides a number of scenarios in which the court may relieve a party from final judgment

43

(c) Dismissal of counterclaim, cross-claim, or third-party claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subdivision (a) of this rule shall be made before a responsive pleading is served or, if there is none, before of the introduction of evidence at the trial or hearing. Whereas Rule 41(a)(2) dealt with counterclaims in the context of the claimant trying to dismiss a claim after the defending party pleaded a counterclaim, Rule 41(c) deals with the claimant of the counterclaim trying to dismiss the claim The rules of 41(c) are the same as the rules of 41(a) whoever the claimant is (regardless of the type of claim) can dismiss voluntarily until the answer (or in the case of a counterclaim, reply) has been served by the adverse party, or the adverse party has served a motion for summary judgment

44

Rule 55
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the partys default. If I file suit against you, and hear nothing (i.e. you fail to plead or defend) and the appropriate time to answer goes by, Rule 55(a) provides the first step at getting a default judgment: entry of default This is a clerical step in the process (hence why it is done by the clerk), but it is a necessary first step

45

(b) Judgment. Judgment by default may be entered as follows: (1) By the Clerk. When the plaintiffs claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person. You have to put forth a certain sum or provide the computation that will produce proper sum for damages because the clerk does not have the facilities to come up with a dollar amount Note that the has to be faulted for failure to appear (so could appear and then just disappear) and cannot be infant/incompetent in order for the clerk to be able to enter the judgment The clerk will give only the costs that are asked; the court (under part 2 and Rule 54(b)) can give you less neither will give you more

(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefore; but no judgment shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the partys representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings and order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States. A default judgment cannot be entered against an incompetent/infant without his/her guardian appearing o Does this mean that if the tutor never shows, you can never get a default against incompetent/infant? Technically (and textually) yes, but all you would do is petition court to get a new tutor for the incompetent/infant on the grounds that the current tutor is not protecting the best interest of the subject

46

(c) Setting aside default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

47

(d) Plaintiffs, counterclaimants, cross-claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c). Note this says party instead of /; this is because both and can have counterclaims and cross claims

48

(e) Judgment against the United States. No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court.

49

Rule 82 Jurisdiction and Venue Unaffected

These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein. An admiralty or maritime claim within the meaning of Rule 9(h) shall not be treated as a civil action for the purposes of Title 28, U.S.C. 1391-1392. Rules do not extend or limit jurisdiction

Claim A ($40K) Claim B ($30K) The two claims can be joined, but subject matter jurisdiction is still lacking

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28 USC 1335 Statutory Interpleader

(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, or providing for the delivery or payment or the loan of money or property of such amount or value, or being under any obligation written or unwritten to the amount of $500 or more, if (1) Two or more adverse claimants, of diverse citizenship as defined in subsection (a) or (d) of section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any such obligation; and if (2) the plaintiff has deposited such money or property or has paid the amount of or the loan or other value of such instrument or the amount due under such obligation into the registry of the court, there to abide the judgment of the court, or has given bond payable to the clerk of the court in such amount and with such surety as the court or judge may deem proper, conditioned upon the compliance by the plaintiff with the future order or judgment of the court with respect to the subject matter of the controversy. (b) Such an action may be entertained although the titles or claims of the conflicting claimants do not have a common origin, or are not identical but are adverse to and independent of one another.

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28 U.S.C. 1367 Supplemental Jurisdiction

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. Before determining if there is supplemental jurisdiction, you have to determine if you need supplemental jurisdiction; supplemental jurisdiction is never used as the basis of jurisdiction (must have original)

Claim A ($80K) Claim B ($5K) Claim A ($40K) Claim B ($45K) Claim A ($40K) Claim B ($30K)

You have FSMJ, so you do not need supplemental jurisdiction

You have FSMJ via aggregation, so you do not need supplemental jurisdiction

You do not have FSMJ, so you would need supplemental jurisdiction, but there is no original jurisdiction, so you do not have supplemental jurisdiction under 1367 (a)

General rule: if district courts have original jurisdiction (first requirement to meet), then the court has supplemental jurisdiction over all claims related (including joined claims) o First step: have original jurisdiction o Second step: the claims must be part of the same case and controversy NOTE: case/controversy is not defined by rule 18; simply because claims are joined does not mean they are part of the same case and controversy (case/controversy = (kind of) same transaction and occurrence) Statute is intended to codify Gibbs and overrule Finnley o United Mine Workers v. Gibbs: federal courts may exercise jurisdiction over a state law claim (not based on diversity, so lacking FSMJ) if it has a common nucleus of operative fact (same transaction or occurrence) with a federal law claim to which it is joined this is called pendent jurisdiction o Finnley changed the rule to say pendent jurisdiction is only present when Congress says it is o The first sentence codifies Gibbs; the last sentence overrules Finnley Under the idea that claims involving joined parties are included in supplemental jurisdiction, as long as one party satisfies the amount in question for FSMJ, the other parties (provided their claims are from the same case and controversy and they are properly joined under Rule 20) will also have supplemental jurisdiction (if joined properly under Rule 20) (highlighted in recent SCOTUS decision of Allapattah)

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(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. If there is supplemental jurisdiction under part (a), then check in part (b) if the original claim is based on diversity ( 1332); part (b) removes some supplemental jurisdiction valid under part (a) o This does not undo Finley because Finley was founded on federal question over claims by plaintiffs against persons made parties

1 2

If s are joined under Rule 20, the part (b) does not take away supplemental jurisdiction

Part (b) removes supplemental jurisdiction for s joined under Rule 14 (third party), 19 (compulsory), 20 (permissive), and 24 (intervention)

1 2

Strawbridge rule is invalidated in one instance by part b

1= LA 2 = MS

MS

Strawbridge is violated because 2 and are not diverse, but does that matter under part (b)

o How could courts look at this to not violate Strawbridge? 1 and 2 are part of one case and controversy, so the court did not have original jurisdiction over them if not completely diverse (Strawbridge rule) Courts could look at 1367 (c) and court could take away saying it is an exceptional circumstance There is no right to supplemental jurisdiction Note the asymmetry with regards to supplemental jurisdiction as it applies to Rule 14

LA
impleads Third Party based on Rule 14(b), but 1367(b) takes away supplemental jurisdiction [if doesnt meet diversity of 1332] because it is a claim by a against a person made party under Rule 14

Complaint A

MS
impleads Third Party based on Rule 14(a), but 1367(b) does not take away supplemental jurisdiction [regardless of diversity] because its the impleading the party, not a claim by the - Bockrath thinks this is a situation in which a court might impose 1367 (c) for equity sake

Third Party LA

Third Party MS

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(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. If there is supplemental jurisdiction under parts (a) and (b), then part (c) may take supplemental jurisdiction away This codifies the part of Gibbs that says when there is supplemental jurisdiction that is not excluded in (b), but the court will decline to exercise jurisdiction anyway

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(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolls while the claim is pending for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

If the files a counterclaim, and wants it to be a Rule 13(a) counterclaim so supplemental jurisdiction applies, but by the time the judge rules on it [ruling it is a 13(b) counterclaim so supplemental jurisdiction does not apply], prescription has run on the claim.what should the do? Under 1367 (d) this is not a problem because 1367 (d) allows the tolling of prescription for 30 days following supplemental jurisdiction being denied (i.e. the has 30 days to file in state court)

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(e) As used in this section, the term State includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

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28 U.S.C. 1391 - Venue

Venue generally To use the venue statute, first determine what the subject matter jurisdiction is based on o If it is based solely on diversity of citizenship, use part (a) o If it is not based solely on diversity of citizenship, use part (b)

(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, or a substantial part of property that is the subject of the action is situation, or (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. Resides = domicile The must choose between parts (1) and (2) if both are applicable before trying to use part (3) Part (1) o Covers cases of single s and multiple s o Can be used of all s (in case of multiple s) reside in the same State; if so, then any judicial district in which at least one resides Ex: 1 domiciled in Eastern District of New York; 2 domiciled in Western District of New York; either Eastern or Western District of New York can be used as the venue Part (2) o A substantial part of the events or omissions giving rise to the claim can occur in multiple judicial districts Ex: and are diverse and involved in a car accident in Maine; as the judicial district in which a substantial part of the events occurred giving rise to the claim, Maine (with one judicial district) can be the venue Part (3) o Fall back rule; only used if there is no judicial district under parts (1) or (2) in which a suit may be brought o Note going to use part (3) o If part (3) must be used, then venue is appropriate in any judicial district in which the is subject to personal jurisdiction at the time the action is commenced (b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any 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, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. Note how part (3) is different in this section than it is in section (a) o B(3) only would apply in a Burnham-esque question; in (c) For purposes of venue under this chapter, 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. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that 57

district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts. This is defining the domicile of a corporation for the purposes of applying that definition to parts (a) and (b) If the state has one judicial district o Corporation domicile = any judicial district in which it was subject to personal jurisdiction at the time the action commenced If the state has more than one judicial district o Corporation domicile = any judicial district in which the corporation would be subject to personal jurisdiction if that district were a separate State If the state has more then one judicial district and the corporation would not be subject to personal jurisdiction in any district if that district were a separate State o Corporation domicile = the judicial district in which the corporation has the most significant contacts (d) An alien may be sued in any district. Basically, take the aliens domicile out of the equation for venue o An alien may be sued in any judicial district, though keep in mind, the court must still have personal and subject matter over the alien o If the court has subject matter and personal jurisdiction over the alien, there are no addition restrictions from venue for obtaining jurisdiction All aliens are treated the same, there is no difference between aliens with permanent resident status and those without permanent resident status

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Casebook Practice Problems

Venue in Federal Court (p. 283 284) 1. Paula is involved in an auto accident with Doug. Paula is a Massachusetts citizen. Doug is a New York citizen, with his home in the Eastern District of New York. The accident occurred in Maine (1 federal district). (a) Paula wants to sue Doug in federal court. Where would venue be proper? This is founded on diversity, so 1391(a) applies. According to part (1), venue would be proper in the judicial district which the s reside in if all s reside in the same state. Doug is the only , so in the Eastern District of New York where he resides would be appropriate. According to part (2), venue would be proper in a judicial district in which a substantial part of the events occurred, so Maine would be an appropriate venue. (b) Paula sues Doug in federal court in Vermont, where Doug lives while attending college in Vermont. Is venue proper in the District of Vermont? Resides = domicile; Doug is not domiciled in Vermont while he is in college, so no, it would not be proper (c) Paula sues Doug in federal court in Massachusetts, serving him while he is in Massachusetts doing business. Is venue proper in the District of Massachusetts? No, because there is another judicial district in which the action may be brought, namely Maine and Eastern District of New York. Even if there were not other judicial districts available, Doug was not subject to personal jurisdiction in Massachusetts at the time the action commenced. (d) Assume that Doug is a citizen of France. Where would venue be proper? Would it matter if he were admitted for permanent residence? Under part (d), aliens, regardless of permanent residency status, may be for venue purposes sued in any district. Venue would be proper wherever personal and subject matter jurisdiction could be obtained. 2. Suppose Paula decides to sue Car Inc., the manufacturer of her car, alleging defective design and manufacture of the vehicle. Car Inc. is incorporated in Delaware with its headquarters and a factory in the Western District of Michigan. It also has factories in the Western District of Tennessee and the Northern District of Georgia. (a) In Paula v. Car Inc., where is venue proper? The is a corporation, so the definition of a corporation from 1391(c) is used, meaning that a corporation is domiciled in any judicial district that it was subject to personal jurisdiction when the action commenced. For personal jurisdiction, the domicile of a corporation is considered the state of incorporation, therefore, the state of incorporation (Delaware) will certainly be proper as venue.

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The corporation may have been subject to personal jurisdiction via minimum contacts in all of the listed locations. If that is the case, then the are all appropriate locations for venue. (b) Assume that Car Inc. did not acquire the factory in Tennessee until after the accident between Paula and Doug. In Paula v. Car Inc., would venue be proper in the Western District of Tennessee? No, because section (c) requires the corporation be subject to personal jurisdiction at the time the action commenced. If the corporation did not own the Tennessee factory until after the action commenced, it would not have been subject to personal jurisdiction in Tennessee at the time the action commenced. (c) In addition to the facts above, Car Inc. is licensed to do business in New York and has an agent for service of process there. The agent is located in the Western District of New York. Currently, Car Inc. has no operations in New York. In Paula v. Car Inc., would venue be proper in the Western District of New York? The Eastern District of New York? Venue would be proper in the Western District of New York, but no the Eastern District of New York. Under part (c), if a state has more than one judicial district like NY then the corporations domicile is in the judicial district in which the corporation would be subject to personal jurisdiction if that judicial district were a separate state. The presence of the agent for service of process in the Western District of New York would make the corporation subject to personal jurisdiction in the Western District of New York. (d) Assume the facts from 2(c). Paula sues Doug and Car Inc. Would venue be proper in the Western District of Michigan? The Eastern District of New York? The Western District of New York? The Western District of Tennessee? Since it is still based on diversity, part (a) applies. As such, any district in which one of the s resided in would be proper venue. Car Inc. resides in the Eastern District of New York (through agent for service of process) and the Western District of Michigan (through sufficient contacts with the headquarters and factory). It does not reside in the Western District of New York, and if it did not acquire the Tennessee factory until after the claim, then it does not reside there. 3. Assume that in Notes 1 and 2 above there was federal question jurisdiction. Would this change any of your answers? Part (b) instead of part (a) would be used instead. The only difference between the two is in the last line, in which instead of personal jurisdiction, part (b) says a judicial district in which any may be found. This is still predicated on the idea that no other judicial district could be found, so it would play no bearing because the claim could always be brought in Maine as a substantial part of the events took place there. Similarly, the judicial districts where the s reside would still be appropriate. Question would this change the college question? If no other judicial district could be found, would Vermont then be appropriate if Doug was found there?

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Challenging Personal Jurisdiction (p. 315 316) 2. move to dismiss for insufficiency of service of process. The motion is denied. Now the moves to dismiss for lack of personal jurisdiction. Why is the personal jurisdiction defense waived? Under what subsection(s) of Rule 12? Subsection (g) says that when a party makes a motion as provided for under Rule 12, it can join to that motion any other motion that is available to the party at that time in the proceeding. If the moving party fails to join other available motions, then those defenses are then waived. What the should have done is to join the motion to dismiss for lack of personal jurisdiction with the motion to dismiss for insufficiency of service of process, as both are available at the same time by subsection (b). 3. moves to dismiss for insufficiency of service of process. After the motion is denied, files an answer, asserting the defense of lack of personal jurisdiction. Why is the personal jurisdiction defense waived? Under what subsection(s) of Rule 12? Subsection (g) says that when a party makes a motion as provided for under Rule 12, it can join to that motion any other motion that is available to the party at that time in the proceeding. If the moving party fails to join other available motions, then those defenses are then waived. What the should have done is to join the motion to dismiss for insufficiency of service of process with the motion to dismiss for lack of personal jurisdiction, as both are available at the same time by subsection (b). Consider the situation in Asahi. Under California procedure, objections to personal jurisdiction must be raised by special appearance. A who enters a general appearance waives all personal jurisdiction objections, and raising defenses other than jurisdiction, filing other motions, or contesting the merits constitutes a general appearance. In Asahi, Asahis lawyer made the understandable decision to focus initially on jurisdiction. However, after the jurisdictional challenge was well under way, a Japanese engineer came to California, inspected the valve in question, and concluded that the valve had not been manufactured by Asahi. Nonetheless, although Asahi had a strong defense on the merits, under California procedure it could not assert that defense without waiving jurisdiction. If the case had been in federal court, what would the s options have been? According to subsection (b), [i]f a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief, so Asahi at trial could have asserted his defenses on the merits without waiving jurisdiction. 4. Which four of the Rule 12(b) defenses must be raised either in a pre-answer Rule 12 motion or (if no such motion is made) in s answer? These four are commonly called the waivable defenses because they will be waived if not asserted early. Why do you think the rule requires early assertion of the four waivable defenses? Lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process

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Early assertion is required because otherwise you would be asking the court to make a ruling for you, and then later asserting that the court has no jurisdiction over you. 5. moves to dismiss for lack of personal jurisdiction and improper venue. After the motion is denied, files an answer, asserting the defense of failure to state a claim under Rule 12(b)(6). Is that defense timely? Yes, under subsection (h)(2) failure to state a claim can be raised in any pleading permitted by Rule 7(A), and an answer is a pleading permitted by Rule 7(a). The case proceeds to trial, during which moves to dismiss for failure to join a party under Rule 19. Is that defense timely? Yes, under subsection (h)(2) failure to join a party may be raised at the trial on the merits. 6. Suppose raises a Rule 12(b)(6) or 12(b)(7) defense for the first time on appeal. Why would that not be timely? Rule 12(b)(6) and 12(b)(7) defenses must be made in any pleading allowed by Rule 7(a), a motion for judgment on the pleadings, or at a trial on the merits (Rule 12(h)(. On appeal is too late. But could raise the Rule 12(b)(1) defense for the first time on appeal. What part of Rule 12 makes this clear? Rule 12(h)(3) allows that at anytime a party may raise lack of subject matter jurisdiction (which is covered in b(1)). 7. moves for an extension of time in which to respond to the complaint. The motion is granted, after which files a motion to dismiss for lack of personal jurisdiction. Is the personal jurisdiction defense waived? No, lack of personal jurisdiction is not waived because motion for an extension of time is not a motion under Rule 12. According to Rule 12(g), the defense are only waived if a party makes a motion under this rule. Is the motion for extension of time a defense motion under this rule? Would you reach the same conclusion if the initial motion were a stay of proceedings? How about an initial motion for transfer under 28 U.S.C. 1404(a)?

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Legal Sufficiency of the Complaint (p. 335) 1. Plaintiff is (a) Plaintiff alleges that he was sitting in his rig, parked on a public street when he was shot. Defendant files a general demurrer or Rule 12(B)(6) motion. What result? It will be dismissed for failure to state a claim because the plaintiff provided too much information. In saying the rig was parked on a public street, the plaintiff admitted that he was not on the defendants premises, a necessary factor in the establishing the defendant had a duty to the plaintiff. (b) Plaintiff alleges that he was sitting in his rig, parked where directed by defendants employees when he was shot. Defendant files a general demurrer or Rule 12(B)(6) motion. What result? It will be dismissed for failure to state a claim because the plaintiff did not provide enough information. In saying the rig was parked where the employees told him to park, the plaintiff failed to claim he was on the defendants premises, a necessary factor in establishing the defendant owed a duty to the plaintiff.

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Voluntary Dismissal (p. 357) 1. Under what circumstances may a plaintiff dismiss unilaterally without prejudice? The may dismiss unilaterally without prejudice before service by the adverse party of an answer or a motion for summary judgment, which ever occurs first. 2. Under what circumstances may a plaintiff dismiss with the agreement of the other parties who have appeared? Under what circumstances may she do so without prejudice? The can dismiss by stipulation provided all parties who have appeared sign in agreement. The stipulation is without prejudice unless otherwise stated. 3. Under what circumstances may a plaintiff dismiss with the permission of the court? Under what circumstances may she do so without prejudice? If none of the options under Rule 41(A)(1) are available, meaning that dismissal by notice is no longer available because either service by the adverse party or a motion for summary judgment has occurred, and the other party will not agree to dismissal by stipulation, then the can seek dismissal with the permission of the court. The court has flexibility into whether or not it will grant the dismissal, but it will not be able to grant the dismissal if the has pleaded a counterclaim prior to the service on the of the s motion to dismiss, and that counterclaim cannot stand alone for adjudication. Unless otherwise stated by the court, the dismissal by the court will be without prejudice. 4. (a) The plaintiff files and serves her complaint in federal court. Before the defendant takes any action, the plaintiff files a notice of dismissal. Now the plaintiff brings the case in federal court a second time, but voluntarily dismisses by stipulation of all parties who have appeared. Why is this dismissal without prejudice? Without prejudice means the can refile. Under Rule 41(A)(1), for a second dismissal to act as an adjudication on the merits, the dismissal must be done via notice of dismissal. If done by stipulation, then it is without prejudice unless the parties state in the stipulation that it is with prejudice. (b) Same facts as above, except the second case is dismissed by notice of dismissal. Why is this dismissal with prejudice? If the second dismissal is done via notice of dismissal, it acts as an adjudication on the merits and cannot be refiled, thus it is with prejudice. (c) Assume the plaintiffs second case is in federal court and that she dismisses it through notice of dismissal. Assume also that she had dismissed her first case voluntarily. In determining whether the second dismissal is with prejudice, does it matter whether the first case was filed in federal or state court? Should it matter that the state court system does not have a similar rule? According to Rule 41(A)(1), it does not matter what court (federal or state) the first dismissal was made in, and nor should it. A is given 1 chance to refile before he must get permission (from other parties or the court) to dismiss without prejudice. This can be viewed as analogous to the appeals process: there is one appeal automatically granted, but thereafter, the granting of appeals is discretionary. It should not matter if the first dismissal was in state or federal court because the should not be allowed to system hop between state and federal to try and get more than 1 chance to dismiss without prejudice. 64

Following Defendants Options in Response (p. 362) 1. files and serves an answer which the finds unintelligible. Why can the not file a motion for more definite statement? The cannot file a motion for more definite statement because under Rule 12(e), a motion for more definite statement is only available for a pleading to which a response pleading is permitted. There is no responsive pleading to an answer. 2. Why is the not able to file a 12(b)(6) motion regarding an answer that is insufficient as a matter of law? What is the appropriate motion? A 12(b)(6) motion is filed as a defense to a claim for relief. The answer (unless it contains a counterclaim) does not state a claim for relief, so a 12(b)(6) motion would be inappropriate. The correct motion would be a motion to strike.

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Following Affirmative Defenses (p. 368) 1. In her answer in a contract case in federal court, the defendant asserts that the contract is not enforceable because it was not in writing, as required by the Statute of Frauds. (a) Why is this an affirmative defense? Statue of Frauds interjects new material into the dispute which, if true, deflects the consequences of the claimants claim without negating the existence of it. (b) If the thinks that the Statute of Frauds does not apply to this contract, what response does she make? Why? According to 8(d), since an answer does not require/permit a responsive pleading, the averment (Statute of Frauds in this case) is automatically considered to be denied by the . 2. Rule 8(c) provides that the shall plead her affirmative defenses. A who fails to do risks waiving the defense omitted. As we will see in Section E of this chapter, however, the might be able to amend her answer to assert the affirmative defense. 3. Can you think of a case in which an affirmative defense could be raised by a Rule 12(b)(6) motion? An affirmative defense could be raised by a 12(b)(6) motion if the claimant in his claim for relief alleged facts that proved the affirmative defense. Example: Party A sues party B for negligence, claiming that Party B hit Party A when Party A was driving 100 mph and Party B ran a stop light. Party B can file a 12(b)(6) motion raising contributory negligence, an affirmative defense.

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Following Rule 55 (p. 370) 1. You are s counsel. You file suit on behalf of seeking liquidated damages of $95,000, plus costs and whatever other relief the court may find appropriate. You have process served upon properly. fails to respond in any way within the appropriate period. (a) What documents do you prepare, and to whom do you give them, to get the entry of default? You prepare an affidavit and give it to the Clerk to get an entry of default under Rule 15(a) (b) If you prepare and file the proper documents, must the person to whom you go to file them (the clerk of the court) enter the default, or does she have discretion to refuse? The clerk is required to enter the default. (c) To whom do you go for entry of the default judgment? What document(s) do you prepare for that step? Since there is a certain sum, you can go to the clerk with an affidavit of the amount due for entry of the default judgment under Rule 15(b)(1) (d) Can the default judgment be for damages of $100,000? Can it be for damages of $20,000? The damages can be either. The clerk can only award the damages stated no more, no less. 2. Same facts, except that the claim is for unspecified damages. (a) Is there any difference in acquiring the default from the fact pattern in Question 1? The entry of the default is the same if damages are specified or unspecified. (b) To whom do you go for entry of the default judgment? What document(s) do you prepare for this step? When damages are unspecified, you must go to the court (c) What proceedings follow? Why does the not get notice of these proceedings on these facts? Under what facts would she get notice? The court may conduct hearings as it deems necessary and proper if it needs more information to determine the damages, establish truth in the averment, or make any other investigations. The receives notice 3 days prior to the hearing if the (or the s representative if the is appearing by representative) has appeared in the action.

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Following Rule 15(a) (p. 372) 1. Based upon Rule 15(a), work through these hypotheticals: (a) Plaintiff files her complaint and has process properly served on . Before answers, files an amended complaint adding new claims and seeking an additional $6 million in damages. Why did have a right to do this? Because a responsive pleading is permitted to a complaint, so the has until the serves a responsive pleading to the complaint. (b) files her complain and has process properly served on . makes a motion to dismiss under Rule 12(b)(6). Reading s motion, realizes that is correct, since left out material allegations of her claim. Before the hearing on s motion, files an amended complaint fixing the problem raised by s motion (and thereby mooting the motion). had an absolute right to do this. Why? Why is Rule 7(a) relevant to your answer? Under Rule 15(a), can amend a pleading as a matter of course once. If the pleading requires a response, then the time to amend is cut off when the responsive pleading is served. Motions are not pleadings, and Rule 15(a) only establishes that pleadings cut off the time to amend. (c) When must respond to an amended complaint? The must respond to an amended complaint within the time remaining to respond to the original complaint, unless the time to respond to the original complaint was less than 10 days upon service of the amended complaint, in which case, the now has 10 days from service of the amended complaint to respond. (d) files her complaint and has process properly served on on May 15. files her answer and has it served on on June 3. On June 22, files and serves an amended answer, correcting some errors in the original answer. Why does have a right to do this? There is no responsive pleading permitted to an answer, so the had 20 days to amend her answer as a matter of course under Rule 15(a) (e) If in Question 1(a) or in Question 1(d) had waited too long to take advantage of amendment of right, what showing would they have to make to be allowed to amend? Notice that Rule 15(a) instructs the court that leave shall be freely given when justice so requires. If the misses the deadlines, then the must get leave of the court or consent of the adverse party to amend. Leave of the court is freely given, so whatever the court decides is necessary to show should be shown.

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Following Claim Joinder by Defendants (p. 747) 1. , a citizen of Louisiana, sues D, a citizen of North Dakota, for $85,000 in damages from an auto collision between the two. (a) Suppose Ds counterclaim arising from the same accident is for $45,000. Why is supplemental jurisdiction required here? Why is it clearly available under 1367(a)? Why is it not withdrawn under 1367(b)? Supplemental jurisdiction is needed for the counterclaim because the counterclaim lacks FSMJ on its own. Supplemental jurisdiction is available under 1367(a) because the counterclaim forms part of the same case and controversy as the original claim over which the court had original jurisdiction. It is not withdrawn under 1367 (b) because part (b) only withdraws supplemental jurisdiction from claims by plaintiffs. is not a . (b) Suppose D wants to assert a counterclaim for her damages arising from the same accident and that the damages are $100,000. Why is supplemental jurisdiction irrelevant? already has FSMJ jurisdiction based on diversity, so there is no need for supplemental jurisdiction. 2. , a citizen of Oklahoma, sues D, also a citizen of Oklahoma, on a claim that arises under federal law. Ds compulsory counterclaim against is for $500,000. Why does the counterclaim require supplemental jurisdiction? Why is it available under 1367 (a)? Why is 1367 (b) completely irrelevant to this hypothetical? The counterclaim requires supplemental jurisdiction because it lacks FSMJ because there is no diversity (and its unclear if the counterclaim is arising out of a federal question). There is supplemental jurisdiction for the counterclaim because the counterclaim arises from the same case and controversy as the claim over which the court has original jurisdiction. 1367 (b) is irrelevant because that only applies to situations in which the original jurisdiction of the court is solely found on diversity. In this case, original jurisdiction is found on federal question.

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Following Counterclaims (p. 748) 1. (pictorial representation of question)

Claim A

Counterclaim A & B

A is a compulsory counterclaim under Rule 13(a) B is a permissive counterclaim under Rule 13(b) There is no requirement to bring both, but must assert A, or she risks losing it under claim preclusion. Likewise, if has a counterclaim arising out of transaction or occurrence B, then must raise that counterclaim because that is a compulsory counterclaim (Rule 13(b)) and risks losing it if she does not raise it.

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Following Cross claims (p. 750) 1. (pictorial representation of question)

Claim A

Counterclaim A

1
Counterclaim A Cross claim A

1 and 2 have to be joined under Rule 19 or 20 or there is no cross claim; a cross claim is only against a co-party (note: there is an argument that 1 and 2 are actually joined under Rule 13(h), but Bockrath thinks thats crap) The claim filed by 2 against 1 is a counterclaim; if it arises out of the same transaction or occurrence, then it is a compulsory counterclaim; however, it could also be a permissive counterclaim under Rule 13(b)

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Problem to think about post-Allapattah

California Louisiana

Federal Question

California

State law claim 60K

Can the from Louisiana get supplemental jurisdiction? s are joined via Rule 20, so it is required that the claims come out of the same transaction/occurrence Is there original jurisdiction? Supplemental jurisdiction?

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Following Rule and Statutory Interpleader (p. 795) 3. Based upon the differences in subject matter jurisdiction, assess which kind of interpleader, if either, could be invoked in the following: (a) Stakeholder is an insurance company incorporated in Delaware with its principal place of business in Connecticut. It issued a $1,000,000 life insurance policy insuring Anna, a citizen of New York. After Anna died, claimants to the policy fund are Anns estate, Betty (a citizen of Delaware), and Claudia (a citizen of Arizona). (b) Would the supplemental jurisdiction statute, 28 USC 1367, permit the case in (a) to proceed under rule interpleader? No, because rule interpleader requires complete diversity between and . In this case, the is the stakeholder (Delaware and Connecticut). The are the claimants (New York, Delaware, and Arizona). There is not complete diversity, so there is no subject matter jurisdiction. Supplemental jurisdiction does not fix the problem because there is no original jurisdiction over the claim. However, there is minimal (and in fact complete) diversity between the claimants, so statutory interpleader would be available. (c) Same facts as in (a) except that Anna was a citizen of Nevada at the time she died, and Betty and Claudia are citizens of Nevada. Yes, there would be subject matter jurisdiction for rule interpleader (though on its own, not because of supplemental jurisdiction) because the parties are diverse. There would not be subject matter for statutory interpleader. (d) Same facts as in (c), except Stakeholder contended that it was entitled to keep the funds because Anna breached the insurance contract. Can you fashion and argument that statutory interpleader should be available? Statutory interpleader should be available because only minimal diversity between the claimants is required. If the stakeholder has a claim, then he should be treated as a claimant, therefore there is minimal diversity. (e) Same facts as in (c) except the insurance policy is for $50,000. Why can neither rule nor statutory interpleader be used here? Rule interpleader cannot be used because there is no original jurisdiction because the amount in question does not meet the $75,000 requirement for diversity. There is no statutory interpleader because there is not minimal diversity among the claimants.

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End of Semester Review Problems

Problem 1
In his complaint, asserts A, B, and C (three separate conditions of one claim)

Complaint Answer

In his answer, denies A and B

Question: What has done with regards to C? Answer: has admitted C by not denying it because under Rule 8(d), failure to deny when a responsive pleading is required is treated as an admittance. Question: What if tries to raise evidence regarding at the trial? Is this permitted? Answer: It is outside of the scope of the pleadings, so it turns into a Rule 15(b) problem. Question: What if says in his answer that his defense is X, but the state does not recognize X as a defense. What should the do? Answer: The should raise a motion to strike under Rule 12 because the defense is inadequate. Question: If X is a valid defense, but thinks the facts that alleges to prove X are untrue, what should the do? Answer: Nothing. Under Rule 8(d) it is assumed is denying all of the facts associated with X because no responsive pleading is permitted to the answer. cannot use a Rule 12 motion to strike because the defense would be adequate if all of the facts alleged are true.
In his complaint, asserts A, B, and C (three separate conditions of one claim)

Complaint Answer + 13(b) counterclaim

In his answer, has an affirmative defense that includes facts E, F, and G also brings a Rule 13(b) counterclaim in his answer that asserts 1, 2, and 3

In his reply to the 13(b) counterclaim, denies 1 and 2

Reply

Question: Has the admitted E, F, and G by replying to the 13(b) counterclaim and only denying 1 and 2? Answer: No. Even though the answer and counterclaim are in the same vehicle, they remain separate entities. The reply is only to the counterclaim, not to the answer. Question: Would it matter if it was a 13(a) counterclaim instead? Answer: No. Same result 74

Question 2 Question: What if a counterclaim is mislabeled as an affirmative defense? Must the s attorney reply to it? Answer: No. Rule 7 says that a reply is needed for a counterclaim denominated as such. If it is not denominated as such, then no reply is necessary. Question: What if an affirmative defense is mislabeled as a counterclaim? Must the s attorney reply to it? Answer: No. Rule 7 says that a reply is needed for a counterclaim denominated as such. An affirmative defense is not a counterclaim, so no reply is necessary. Question: What is the difference between an affirmative defense and a counterclaim? Answer: A counterclaim is seeking relief, an affirmative defense is not. (Easy way to tell if there are damages, it is a counterclaim.) Note: Rule 8(c) says the court will treat pleading with proper designation, so in all likelihood, the court will change the naming to the correct name and then the s would be reserved with the corrected version and would have to reply. But, prior to court involvement, the only time the s attorney would to reply is to a counterclaim that is actually named a counterclaim.

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Question 3

Complaint Answer + 13(b) counterclaim Reply + 13(a) counterclaim

X joined for purposes of 13(a) counterclaim by by Rule 13(h)

X
Question: If needed, would there be supplemental jurisdiction for the 13(a) counterclaim? Answer: It is a claim by a , but it is not against parties joined pursuant to Rule 14, 19, 20, or 24; X was joined pursuant to Rule 13(h).

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Question 4

NY
X is being joined pursuant to Rule 13(h)

Complaint

1LA 2MS
1 and 2 joined pursuant to Rule 20

XLA

From 2, answer + 13(b) counterclaim against and X

From X, a reply + 13(a) counterclaim against 2 and 1

Question: Would there be supplemental jurisdiction over the 13(a) counterclaim? Answer: Likely yes. First, you need it because there is not complete diversity for the 13(a) counterclaim. Then go through supplemental jurisdiction steps. First, there would be original jurisdiction because the 13(b) counterclaim would have to have its own subject matter jurisdiction in order to be brought (supplemental jurisdiction does not work for permissive counterclaims). Then the 13(a) counterclaim would be part of the same case and controversy, so you have made it through 1367(a). This is based on diversity, so now move to 1367(b). The question becomes is X a plaintiff? If he is, then there is no supplemental jurisdiction because 1 and 2 were joined under Rule 20. If he is not a plaintiff, then it doesnt matter. So what is X? X is not a plaintiff. You become a plaintiff before you make a claim; you do not become a because a claim is made against you. X is a defending party with regards to the 13(b) counterclaim from 2, and a claimant with regards to his 13(a) counterclaim, but he is not a plaintiff.

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Question 5

NY

Complaint ($100K)

1LA 2MS
1 and 2 joined pursuant to Rule 20

From 2, answer + 13(b) counterclaim

Reply + 13(a) counterclaim against 2 and 1 ($50K)

Question: Does need supplemental jurisdiction for his 13(a) counterclaim? Answer: On first glance, the answer seems to be yes because the amount in question is not over $75K, and therefore would violate 1332 because 1332 covers not only diversity but also amount in question. However, remember the can aggregate his claims, so just has to add his 13(a) counterclaim to the original complaint and then he exceeds the $75K requirement.

NY

Complaint

1LA
1 and 2 joined pursuant to Rule 13(h) for purposes of 13(a) counterclaim

From 2, answer + 13(b) counterclaim

Reply + 13(a) counterclaim against 2 and 1

2NY

Question: Is there supplemental jurisdiction for the 13(a) counterclaim? Answer: Yes because it is a claim by a plaintiff against a party joined pursuant to Rule 13(h). However, to jump through the 1367(a) hoops, you look at the original complaint for the purposes of establishing if the court had original jurisdiction, but you look at the 13(b) counterclaim for the purposes of establishing that the 13(a) counterclaim is part of the same case and controversy.

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Question 6

Complaint

In response to s complaint, files a Rule 12(b) motion for lack of personal jurisdiction. The motion is denied. Then, pre-answer, files a Rule 12(b) motion for lack of subject matter jurisdiction. Question: Should this be allowed? Answer: Yes. Normally, Rule 12(g) prohibits sequential, pre-answer motions, however, Rule 12(h)(3) carves out an exception for lack of subject matter jurisdiction.

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Question 7

Complaint Answer + 13(a) counterclaim

In his answer, asserts lack of personal jurisdiction.

Question: Is the inclusion of the 13(a) counterclaim a waiver of the waivable defenses? Answer: No, for two reasons. First, Rule 8 allows for alternative claims and defenses. Second, the first sentence of Rule 12(b) establishes that all defenses shall be raised in responsive pleadings, and then seven may be raised by motion. To say the inclusion of a counterclaim in the answer waives the waivable defenses would require the waivable defenses to be raised by motion if also had a counterclaim. This emasculates the first sentence of Rule 12(b). Question: Would the answer be any different if it were a 13(b) counterclaim? Answer: There is no reason in the rules that the answer would be different.

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Question 8

Complaint Answer + 13(a) counterclaim

X
wants to join party X to his 13(a) counterclaim, but the court does not have personal jurisdiction over party X. Question: Can join X? Answer: No. The joinder would be via Rule 13(h), but to join under Rule 13(h) you must meet the standards of Rule 19 and 20, so there must be personal jurisdiction, venue, and subject matter jurisdiction (though the subject matter jurisdiction may be obtained via supplemental jurisdiction). If X cannot be joined, then the 13(a) counterclaim is no longer compulsory because under Rule 13(a) a compulsory counterclaim cannot require for its adjudication the presence of a party the court cannot get jurisdiction over. Therefore, it is not waived.

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Question 9 Can a Rule 12(b) motion cut off a s right to dismiss by notice? Yes, but only a Rule 12(b)(6) motion + outside material. Under Rule 12(b), a 12(b)(6) motion + outside material is treated like a motion for summary judgment. Under Rule 41(a)(1)(i) two things trigger a cut off in a partys right to dismiss by notice: service of an answer and service of a motion for summary judgment. If a 12(b)(6) motion + outside information is treated like a motion for summary judgment, then service of a 12(b)(6) motion + outside information will also trigger the cut off for dismissal.

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