CIV PRO II: Freer CDs + Bockrath (Spring 2012)

Sections:
CHOOSING A FORUM
o I. Personal Jurisdiction (PJ)
o II. Notice & The Opportunity to Be Heard
o III. Subject Matter Jurisdiction (SMJ)
o IV. Venue
o V. Challenging Forum Selection
o VI. Erie Doctrine
BEGINNING A CASE
o VII. Pleadings
o VIII. Joinder
CONCLUSION OF CASE AND FURTHER PROCEEDINGS
o IX. Pre-Trial Adjudication (Dismissals & Default Judgments)
I.

PERSONAL JURISDICTION (PJ)

A. Definition- In what states can the sue the ? In what states does the court have jurisdiction
over the s person or property?
1. 3 Types of Personal Jurisdiction
(a). in personam- jurisdiction of the s person
(b). in rem- jurisdiction over the s property
(c). quasi-in-rem- jurisdiction over the s property as a means of getting
jurisdiction over their person
B. Due Process Clause of the 14th Amendment ( 1)
1. No state shall deprive a person of life, liberty, or property without due process of the
law
(a). Limits how far the courts may go to assert jurisdiction over a person or their
property
(b). However, it does not grant it
C. State Statute
1. State must pass statute which give personal jurisdiction to the courts
(a). Every state has their own
(i). Two Main Types of Long-Arm Statutes
o California type
basically that the statute extends to the full reaches of
the constitution
therefore basically same analysis is used
o Laundry List (Like LA statute)
If it meets one of the things on the list then you must
test it against constitutionality
(b). They can let the PJ reach as far as they want so long as it does not surpass
constitutional limits
2. What if a PJ is within the confines of constitutional limits, but it surpasses the state
statute limits?
(a). There is NO personal jurisdiction
3. Appropriate Test:
(a). Is there a state statute that grants PJ over ?

(b). If yes, is this reach of PJ within its limits?

(c). If yes, then is it also constitutional?
D. Full Faith & Credit
1. Art. IV of US Constitution and federal statutes for federal courts
(a). Provides that Full Faith and credit shall be given to all states in enforcing any
og the judgments of other states
2. Must have had jurisdiction (PJ & SMJ) in the case for it to be enforceable
E. In Personam Jurisdiction (jurisdiction over the person)
1. General vs. Specific
(a). General Jurisdiction- the can be sued in the forum (F) for a claim that
arose anywhere in the world.
(i). (because they have systematic and continuous enough contacts
with the forum)
(b). Specific Jurisdiction- the can only be sued in a forum (F) for claims that
arose from the s contacts with the forum state.
2. Methods for finding PJ
(a). Traditional bases for PJ- Pennoyer v. Neff (1878)
(i). Service with Process in the F- (general or specific)
o Jurisdiction may be found over who is served with process
while they are in the F state regardless of how much contact
they had to state previously
o Pennoyer v. Neff (1878) specific
o Burnham v. Superior Court of CA (1990) general
historical service of process still prevails whether
specific or general
(ii). s agent Served with Process in the F
o Same as above
(iii). Attachment (quasi-in-rem) (general or specific)
o Pennoyer v. Neff (1878) specific
Property must be attached at the outset of the suit
o Schaffer v. Heitner (1977) - general
Shareholder derivatives suit (F- Delawareincorporation of company, Cl- elsewhere, elsewhere, - elsewhere)
In quasi-in-rem, not only s property must meet
minimum contact test to be attached, but find
minimum contacts over his person
o Could be used if there are enough minimum contacts but there
is no long-arm statute
(iv). Civil Status
o state has PJ over the civil status (marital status) of its residents
handled under in rem (their marriage is considered
property of the state)
so PJ would be found over marriage any place one of
the parties resides
o ex: abandons wife in F to move to Antigua --- F state still
has PJ over him
(v). Domicile in forum- general
o State has PJ over all people domiciled with its borders

o Milliken v. Meyer (1940)- if domiciled in F, service may take

place outside F (WY guy served in CO for WY lawsuit)
o Domicile for Corporations
where they are incorporated, -or where they have their principle place of business
(PPB)
(vi). Consent
o Express
shows up to defend himself and does not contest PJ
Can be willing or inadvertent
o Implied- specific (expansion of reach of PJ)
Hess v. Palowski (1927)- by driving our roads you
implicitly consent to PJ over you
(b). Minimum Contacts (specific or general)- (substantial expansion to PJ)
(i). Specific- (PJ over based on what the did in/with the F that
relates to the claim)
o Classification of contacts
Single act in F that was related to the claim or Continuous but limited contacts with F that relate to
claim
o International Shoe v. Washington (1945)
where minimum contacts is first seen
PJ will be found when the has such minimum
contacts with the F so that exercise of PJ over them
does not offend traditional notions of fairplay and
substantial justice.
Allowed for process to be served on outside the F
w/o requirement of domicile in the F
o Single Contact Sufficiency (expansion)
Smyth v. Twin State Roofing (1951) (single tort)
Single tort in forum = minimum contact
McGee v. International Life (1957) (single K breach)
Single contact was enough
3 factors why (Beginnings of Fairness
Factors)
1. solicited the contract (beginnings
of purposeful availment)
2. Relatedness (claim arose directly
from contact)
3. States interest in protecting its
citizens
o Purposeful Availment (PA) (contraction)
Hanson v. Denkla (1958) (domestic)
must purposefully avail themselves/itself
of the privilege of conducting activities
within the F state

Penn. bank did not reach out to Mrs. Donner

in FL, she moved there (unilateral act of a 3rd
party)
Buckeye Boiler v. Superior Court of CA (1969)
(tort/manufacturer)
2 part test (ASK THIS FOR EVERY CASE
going forward)
What did do in/with the F?
Does claim arise from it?
Engaging in economic activity with the F =
commercial actuality = purposeful availment
whenever a company may reasonably
anticipate that their product will be
purchased or used in the F
and its product within the state
generates gross income for the
manufacturer
The beginnings of SOC
Kulko v. Superior Court (1978) (domestic)
Acquiescence Purposeful availment
Allowing kids to go to CA Actively sending
them there
Foreseeability Test
WWVW v. Woodson (1980) (retailer)
drove car to OK, didnt send it
there (unilateral act of a 3rd party)
s purposefully avail themselves if it
was foreseeable that they would be
hauled into court in F
NOT- whether it was foreseeable that
the product would reach the F
(because it was a car and mobile by
nature)
Calder Effects Test
Calder v. Jones (1984) (tort- libel)
injury causing act wasnt there, but is
effects were felt there
1st time we see that: may have
sufficient minimum contacts even
though did not act within the state &
had no other contacts with F
if it was reasonably foreseeable she
would be hauled into court where
the effect (injury) was actually felt
Alternative ex: shooting a gun across
state lines- act was in LA, but effect
(injury) was in MS => should still be
liable in MS for act in LA

 Keeton v. Hustler Magazine (1984) (tortdefamation)

= NY, = OH (incorporation), CA
(PPB), F = NH, Cl = All States
(nationally circulated mag)
Where all can the effect be felt?
every where the can perceive it
Can it be felt in a place even when the
is not domiciled there? - Yes
Even under specific there is no
requirement that the be domicile in
the F (its just usually more
convenient for them)
All that is required is that injurious
effect that gave rise to their claim
arose from the s contracts with the
F
Fairness Factors Test
Burger King v. Rudzewicz (1985) (contract)
Reconfirmed that Int. Shoe gives 2
part test:
1. minimum contacts with the Fmust have relevant contact before you
can even consider the other factors
2. Traditional Notions of
Fairplay and Substantial Justice
(fairness factors)- (sliding scale and
if factor is high enough it allows less
contact)
Burden on - must show F is
unconstitutionally unfair (gravely
difficult and inconvenient and grossly
unfair) => Due process guarantee of
most convenient F
o Stream of Commerce (SOC)- (Another form of purposeful
availment)
Purposeful Availment (PA) v. SOC
PA- has taken deliberate action toward the
forum state, and because of this it is
reasonable and foreseeable that they will be
hauled into court to answer for these actions.
SOC- s intentional action of selling their
products away from their principle place of
business have reasonably and foreseeably
caused them to make contact with the F
Gray v. American Radiator (1961) (manufacturer)
American SOC- sold directly in F

 If you manufacture it and send it out into

SOC then you are [basically] purposefully
availing yourself on the F
Doesnt discuss the foreseeability of that
particular SOC resulting in a contact with the
F, but as the scope of SOC widened, its
foreseeability becomes the main issue later on
Asahi Metals v. Superior Court (1987) (foreign
manufacturer component)
Global SOC- wound up in F as component
part to something sold directly in F
4 4 1 (split opinion)
Brennan (majority) SOC & Reasonable
Awareness
If you put a product into a global
SOC and you have a reasonable
awareness it might reach F (it could
get there I guess) then it is
reasonably foreseeable that you will
be hauled into court over it.
If you send into US SOC, then you
target each individual state, you have
reasonable awareness it might reach
all of those states (you target all the
states)
focused more on fairness factors as
well- general notions of fairness and
foreseeability
OConner (dissent) SOC & PA
No, SOC & Reasonable Awareness
alone is not enough
Just a unilateral act of a 3rd party
Need an additional element to make it
reasonably foreseeable
Also need: must have taken
deliberate or purposeful actions to
serve that particular F in some way
(ex: purposeful availment, targeting,
advertisements, customer service,
state related design, etc.)
If you send into US SOC, then you
target no states, because you have
done nothing with intent or purpose to
serve that particular forum
o The Hybrid- Stream of Commerce + Purposeful Availment
McIntyre v. Nicastro (foreign manufacturer
American distributor) (most recent decision on this
topic)

 Global SOC- wound up in F because a

distributor sold it directly to the F
Kennedy (Majority)
Followed OConnors Asahi opinion
Has basically become law (subject to factual
considerations of course)
Basics:
Must have taken some form of
deliberate or purposeful action to
serve that particular F, -AND Must manifest an intent to invoke or
benefit from the protection of the
State's laws
(ii). General (PJ over is based on the substantial contacts has/had
with F, regardless of whether they relate to the claim)
o Classification of contacts
Substantial, -or Systematic and continuous contacts
Enough that they may be sued for a claim in F
that was unrelated to these in/state activities
SC has not clearly indicated when this line is
drawn
o Basically s activities w/in state are so substantial that they
would expect any suit for any claim and would have no
trouble defending it
Can seek specific somewhere else, if it does meet
general
DONT DISCUSS SOC IN GENERAL JX
o What is enough contact?
Headquarters or PPB in F
Perkins v. Benguetsuit for payment of dividends from
profits in mines operated in
Philippines (claim arose elsewhere)
Satellite office for company based out of foreign
country
de Reyes v. Marine Managementwrongful death for man killed in
international waters (claim arose
elsewhere) action against corp., based
out of China, in LA where they have a
satellite office
assertion of jurisdiction was not
unreasonable in light of traditional
notions of fair play and substantial
justice
o What is not enough contact?
Purchases at regular intervals in F

 Helicopteros- claim not related to the

purchases
Component product manufactured in US but used in
foreign companys final product
Goodyear- foreign affiliate had no systematic
or continuous contacts with N. Carolina
except for buying their tires in US (basically
purchases again)
Also- DONT use SOC in general jxis an argument for specific jx
Why?- SOC doesnt establish
continuous or systematic contacts, it
merely helps relate how the product
that led to the claim came to be in the
F (specific jx analysis)
3. Analytical Framework for discussing PJ on exam
(a). Is there a statute that gives PJ?
(b). Does one of the traditional bases apply?
(i). Personal service
(ii). Personal service of agent
(iii). Attachment
(iv). Civil Status
(v). Domicile
(vi). Consent
(c). Discuss Minimum Contact Analysis
(i). Still use this to back it up even if there is a traditional basis
(d). Discuss 2 prong test
(i). Relevant Contact
(ii). Fairness Factors (much less weight after McIntyre) as per BK
o relatedness
o inconvenience for and witnesses
gravely inconvenient
wealth disparity is not a factor
o States interest in providing recourse to its citizens
o other fairness factors sometimes mentioned
plaintiffs interest to sue at home
legal systems efficiency
interstate interest in shared substantive policies
II.

NOTICE & THE OPPORTUNITY TO BE HEARD (Perfected PJ)

A. Service of Process
1. FRCP Rule 4
(a). many states have their own rules on how this should work but we will focus
on Federal Rules
(b). WHAT is Service of Process? (4(c)(1)- 2 documents are included)
(i). 4(a) Summons
o formal notice from the court issued by the clerk of court
o who the parties are
o where the court is and how long you have to respond

(ii). Copy of the Complaint

(c). WHO may serve Process? - 4(c)(2)
(i). any non-party who is at least 18 years old
(ii). doesnt have to be a police officer or court appointed process server
(iii). very liberal standard compared to some states
(d). WHEN must Process be served? 4(m)
(i). with in 120 days of the complaint being filed with the clerk of court
(ii). if it is not served by then the court must dismiss the case w/o
prejudice (unless you can show good cause for the delay)
(e). HOW should an Individual be served? 4(e)(2)
(i). personal service
o papers handed to personally anywhere in the F state
(ii). substituted service
o leaving a copy of Process at s dwelling house or unsual
abode with someone of suitable age and discretion, AND
resides there (babysitter will not suffice, in-house maid might)
(iii). service of s agent
o appointed by or by state (Hess v. Pawloski- office of motor
vehicles)
(iv). Any method allowed by state law where Fed court sits
o AND the state in which the service is effect (serving s
outside F state)
(f). 4(h)- Serving a Corporation, Partnership of Association
(i). May serve:
o Officer, -oro Managing or general agent of company
must be someone w/ enough responsibility that we can
expect them to transmit important papers
(g). 4(d) Waiving Service of Process
(i). Waiver sent through certified mail to
(ii). Process & Waiver sent in self addressed and stamped envelope
(iii). Waives formal service
o Why?- has duty to avoid unnecessary expenses of serving
the summons
o If doesnt waive, he will pay the costs of having formal
service
(iv). must return waiver within 30 days after its sent to them (and then
must make motion/answer within 60 days) or 60 days if they are
outside US (and then must make motion/answer within 90 days)
(h). WHERE do we serve process? 4(k)(1)
(i). Serving a summons or filing a waiver of service establishes
personal jurisdiction over a defendant
(ii). 4(k)(1)(A) can serve either
o throughout the state where the Fed court sits (personal service
in F state), OR
o can serve outside state where Fed court sits if the state court
could (long-arm statute of F state)
(iii). 2 exceptions to this
o 4(k)(1)(B)- 100 Mile Bulge Rule

 If there is no long-arm statute may still serve outside

F state, so long as it is w/in 100 miles from the
federal court house where suit was filed
**BUT- this does not apply to parties of original
jurisdiction (only those joined under Rule 14 & 19)**
o 4(k)(1)(C)- When authorized by Federal statute
ex: Statutory Interpleader ( 2361- Nationwide service
of process)
B. Constitutional Standard for Process
1. Mulane v. Hanover Bank
(a). Notice must be reasonably calculated under all the circumstance to alert the
of the pending lawsuit
(b). -HOWEVER-, just because the doesnt actually receive the service doesnt
mean its unconstitutional (so long as they applied Rule 4 and took the
necessary steps to give them notice)
(c). Notice by publication (constructive notice)(i). Usually does not suffice
(ii). But if it can be proved that it was reasonable under all the
circumstances of the suit
o ex: has no idea where resides except that they know that
lives in the city where popular newspaper is circulated
III.

SUBJECT MATTER JURISDICTION (SMJ)

A. State SMJ (general SMJ)
1. Each state may set up trial courts as they see fit, and there is usually courts that can
hear all types of cases
2. BUT-, there are a few types of cases that may not be heard in state court
(a). Some Federal Question cases- where Federal courts have exclusive power
over the subject
(i). anti-trust
(ii). federal security claim
(iii). patent infringement
(iv). federal torts act
(v). etc.
B. Federal SMJ (limited SMJ)
1. Only has original jurisdiction over 2 different types of cases
(a). Federal Question cases (as listed above & others), -or(b). Diversity Jurisdiction cases
2. However, just because federal courts may have original SMJ over these issues, does
not mean they must be brought in fed court (unless they are the exclusive power
federal question cases)
(a). Could still be brought in state court
3. Federal Question ( 1331)
(a). cases that arise under a federal law or statute
(b). citizenship & amt. in question do not matter
(c). Well-Pleaded Complaint Rule- Pertains only to the s claim
(i). Look only at the s complaint
(ii). Did s claim arise under federal law?
(d). Louisville v. Motley- Is the enforcing a federal right?

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(i).

just because complaint discusses federal law does not mean that it
would fall under Federal Question
(ii). the lawsuit must have been initiated to enforce a federal right
4. Diversity Jurisdiction ( 1332)
(a). 1332(a)(1) There are 2 requirements
(i). Diversity- Must be between:
o citizens of 2 different states,
o citizen of a state and citizen of foreign state
(not between US citizen and foreign citizen admitted
for permanent residence that is domiciled in the same
state),
o OR- citizens of state and citizens of foreign states brought in
as additional parties, -AND(ii). Amount in question- must exceed $75,000
(b). How do we determine if they are citizens of different states?
(i). Complete diversity- Strawbridge v. Curtis
o there is no diversity of citizenship if any is in the same state
as any
o co-parties may still be in the same state, just not opposing
parties
(ii). When do we test for diversity?
o When the case is filed (doesnt matter if one of the parties
moves after and they are now citizens of same state)
(iii). What is a citizen?
o American Citizen
Domicile
What is domicile?
State where they are present at time of
the suit andmust manifest a subjective intent to
make that State your permanent home
o Corporation
(except insurer corporations for liability insurance
subject to direct action when insured is not joined as a
party)
Every state or foreign state where corporation is
either:
incorporated or has its PPB
o Direct actions against Insurers of Liability Insurance when
insured is not joined as a party (whether incorporated or not)
every state or foreign state where:
the insured is a citizen
the insurer has been incorporated, -or the insurer has its PPB
o Un-incorporated businesses (partnerships or labor unions)
every place a partner or member is a citizen
o Representatives who sue on behalf of another (decedents,
minors, incompetents, etc)- 1332(c)(2)

11

 where the person being represented is a citizen

o Class Action
where the representative is a citizen
not citizenship of each individual in the suit
(c). Amount in controversy
(i). amount for all claims must be > $75,000 not including interest on
the claim or costs (not just equal to $75,000)
(ii). will believe amount that asserts unless it is clear to a legal
certainty that they cant recover that much
(iii). s ultimate recovery has no bearing on SMJ
o ex: assert $75,000 but only recovered $10,000 => they still
had appropriate amt. in question for purposes of SMJ
(iv). Aggregation
o Single party aggregation
single party may add together multiple claims asserted
by party to make it >$75,000
claims may be unrelated
o Multiple party aggregation
technically, may only aggregate the claims of a
single party
Exception:
If one of the parties meets amount in
controversy
May use supplemental jurisdiction for
other parties who do not meet it
If none of the parties meet amount in controversy
requirement then there is NO SMJ over that claim
C. Supplemental Jurisdiction (SJ) - ( 1367)
1. 1367(a)- Grants SJ
(a). If we cant find SMJ for a secondary claim under either FQ or Diversity, may
find SMJ under supplemental if:
(i). There is another original claim that has SMJ thru FQ or Diversity,
-and(ii). if the supplemental claim arises from a common nucleus of
operative fact with the jurisdiction invoking claim- United
Mineworkers v. Gibbs
o Same Transaction of Occurrence (T/O)
o applies both in situations where there is
multiple claims against the same party,-or pendant party claims (multiple joined parties)
2. 1367(b)- Kills SJ
(a). However, additional claim will not have jx thru SJ if:
(i). Original jurisdiction invoking claim is a diversity claim, -and(ii). is either a
o claim by original plaintiffs against people joined under rules:
14 - Impleader
19 Required Party Joinder
20 Permissive Party Joinder
24 Intervention

12

o claim asserted by people joined as plaintiffs under Rule 19,

-oro claim asserted by people seeking to intervene as plaintiffs
under Rule 24
D. Removal ( 1441, 1446, & 1447)
1. Removing a case from state court => federal court (under original jurisdiction)
(a). Removal is a one-way street (state => federal)
(i). cant remove back to state from federal
(ii). however, judges can remand back to state court if the case does not
belong in fed court
(b). Only s may remove
(i). s may file in federal court; s may remove to federal court
(ii). Plaintiffs cannot remove on the basis of the counterclaims against
them
(iii). s will file a Notice of Removal with clerk of court and serve
with notice Rule 11
(c). If there is more than one , all s joined must be removable (have JX) and
must agree to removal
(i). minor exception under 1441(c)
o 1441(c)(1)- Removal on the basis of Federal Question
may remove entire case from state to federal court
regardless of whether other parties joined in the case
are also removed if:
it is for a claim that involves a FQ,
it is joined to other claims that do not have
original jx (no FQ or diversity FedSMJ or SJ),
-and if it would be removable if it wasnt for those
other claims being joined
o 1441(c)(2)- claims will be severed from FQ claim
claims that are not removable will be remanded back
to state court
Only the s still joined (federal question claim(s) and
any others that DO have FedSMJ or SJ) must agree to
remove
(ii). No exception for cases removed on the basis of Diversity
Jurisdiction
o All s must be removable and must agree to remove
o no ability to sever claims that do not involve FedSMJ or SJ
(d). Case will be removed to the federal district court which embraces the state
court where the action was filed (cant remove to just any district court)-
1441(a)
(i). 1441(b)(2) - Problems this may cause for some Diversity cases
o cannot remove on the basis of diversity if they are a citizen
of (domiciled in)z the state in which the action is brought
o Why? - They are essentially litigating from home
(e). Removal by Foreign s 1441(d)
(i). will also be removed to the fed district court which embraces state
where action was filed
(ii). district court will try without jury

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(iii). time limits to remove may be extended

(f). must file Notice of Removal within 30 days of receiving the complaint
1446(b)
(i). Exceptions where time may be extended
o When multiple s are served at different times (THIS IS
NEW)
earlier s may consent to later s notice of removal
(filed within 30 days later received process)
even if earlier s 30 days has already expired
**Basically- notice of removal must be filed w/in 30
days of when the last joined receives complaint**
o When receives an Amended Pleading, motion, order, or
other court paper (ex: discovery)
if based on previous complaint, was unable to
remove, but later receives an amended complaint (or
other new evidence) which would make the case
removable
they receive an additional 30 days to file the notice of
removal to file by
HOWEVER, if removing on the basis of Diversity jx,
still must file notice of removal following amended
pleading within 1 year of the initial pleading (unless
court finds acted in bad faith in trying to prevent
from removing)
o When is a foreign citizen
IV.

VENUE
A. 1390 Scope (What is venue?) (NEW)
1. Basically, which federal district court should hear the case?
(a). For s- The geographic location of the proper federal district court to file
original SMJ cases (does not apply to exclusive SMJ cases)
(b). For s- which federal district courts a removed case may be transferred to
(i). Not where is should be removed to initially because this decided
under removal
o Aka- removal to the federal district court that sits in state
where case is filed (which fed court embraces the state court)
B. 1391 Venue generally
1. Significant Changes to Venue (NEW)
(a). 1392 Repealed No longer need to consider whether it is a local action or
transitory action
(i). Local action- actions stemming from real property
o held that venue could be in any district where the real property
lied
(ii). Transitory action- anything that is not a local action
(b). Now all venue is governed by same rules
2. Where may s lay venue?
(a). Any judicial district in where all the s reside
(i). Residence Citizenship
o Residence Venue
deals federal districts

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o Citizenship SMJ
deals with state
o Domicile PJ
deals with state
o (This can make a big difference when it comes to
corporations)
(ii). 1391(c)(1) Residency for Natural Person
o the judicial district where the person is domiciled
o this includes foreign aliens lawfully admitted for permanent
residence domiciled in that district
(iii). 1931(c)(2) Residency for Corporations (and other such entities
that may be sued under a common name => S-corp, Limited
Partnerships, etc.)
o If they are any judicial district in the state where they
would be subject to PJ with respect to the claim
If state has multiple judicial districts they would be
considered a resident in any of the districts that if they
were broken up into actual states would have
sufficient enough contacts to exercise PJ
If there is no such district, then it would be the one
with which would have the most significant contacts
Ex: LA- Claim in New Orleans (Eastern
district), corporate is also incorporated in
NO. But, lives in Lake Charles (Western
district) and they wish to bring the suit in the
federal district court in the western district.
If corporate has no contacts with
LC or any of the parishes in that
district (not enough contacts for W.
district to assert PJ if they were a
separate state) - they may not be
considered a resident of the W.
District
o If they are only in the judicial district where they maintain
their PPB
(iv). 1931(c)(3) Venue for Foreign Non-resident Aliens
o may be sued in any judicial district in the U.S.
o so, they dont factor into discussion of where all the s are
domiciled
(b). Any judicial district where a substantial part of claims arose.
(i). Ex: Gun shot over state lines LA => MS
o could lay venue in both
o substantial is a very flexible standard
(c). Any judicial district where a substantial part of the property that is the
subject of the action is situated, -OR(d). (VERY RARE) If there is no district that satisfies (a), (b), or (c), any
judicial district in which any of the s is subject to the courts PJ with
respect to such action
C. 1404 Change of Venue

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1. A civil action properly brought in a judicial district may be transferred to a different

judicial district where:
(a). It Could have been brought originally, -or(i). Meaning it must have:
o Proper Venue
o SMJ, -ando PJ
(b). The Parties have consented to transferring
(i). even if venue would not normally be proper here
2. Why is this allowed?
(a). Convenience factors - It is simply the more common sense place for it to be
heard because of:
(i). convenience of parties
(ii). convenience of witnesses
(iii). interest of justice
3. Transferee court (new venue) applies the choice of law rules of the transferor court (old
venue)
4. Transfer proceedings brought in rem by or on the behalf of the U.S. may be transferred
without the U.S.s consent so long as all other parties request transfer
D. 1406 Cure or waiver of defects
1. If an action is brought in a district court that has improper venue if may either be:
(a). Transferred by a court to a district with proper venue, -or(b). Dismissed forum non conveiens
E. Forum Non Conveniens
1. A court will dismiss a case which has improper venue if:
(a). they really feel it belongs somewhere else, -and(b). transfer to that place is not available
2. When does this happen?
(a). when the desired transferee court is in a different judicial system than the
transferor court
(i). ex: LA Central District believes the case should be heard by the
MS State Court instead
(b). also if the desired transferee court is in a foreign country
3. Court will weigh the convenience factors above in deciding whether or not to dismiss
(a). fact that may not recover as much $$ if they have to file the claim in
foreign country in not a determinative factor!
V.

CHALLENGING FORUM SELECTION

A. What if the doesnt like the forum?
1. States
(a). Most states allow to make a special appearance for the sole purpose of
contesting whether the Forum has PJ over them
2. Federal Rules
(a). Handled under Rule 12(b) defenses
(i). Within 21 days from service of process (60 days after waiver was
sent if they waived process & 90 days if sent to a foreign ) the
must do one of 2 things
o Answer (Responsive Pleading)
o Make a Motion
7 defenses that can be brought by motion

16

1. Lack of SMJ
2. Lack of PJ
3. Improper Venue
4. Insufficient Process (something wrong with
one of the documents
5. Insufficient Service of Process
6. Failure to state a claim upon which relief
can be granted
7. Failure to join a required (indispensible)
party under rule 19
(______) = 12(g) waivable defenses
All defenses under this that apply must be in
your first response (pleading or motion)
If they are not, they are completely waived
and you can not longer bring them
ex: makes motion to dismiss for insufficient
service of process
Later when he must file answer he
wishes to challenge PJ
HE CANT, it was waived when he
didnt bring it up in his motion
12(b)(6)&(7) may be raised @ anytime (even into
the trial on the merits)
12(b)(1) SMJ may be raised @ anytime (even in
the 1st appeal)
Why?
because it is an issue of constitutional
allocation of power between the
federal and state govt - (dont want to
deprive state from ruling on cases that
they should be privy to because Fed
Court doesnt have original SMJ)

VI. ERIE DOCTRINE

A. Generally only comes up in diversity cases
1. Wouldnt usually apply for federal question cases
(a). Supremacy Clause
(i). if there is federal law on point, then it trumps state law
B. Does the Federal Court have to follow the State law for the issue at hand?
1. Erie Railroad v. Tompkins
(a). Federal courts must apply State substantive law (not procedural law)
(i). What is substantive law?
o the part of the law that:
creates rights
defines rights, -and regulates rights
o ex: contracts, torts, wills, property, etc.
(ii). What is this based on?
o 1652 Rules of Decision Act

17

 if there is no federal substantive law on point then you

must apply state law
o 10th Amendment to the Constitution
preserves to the states all powers that have not been
given to the govt thru the Constitution
C. Bockrath doesnt seem to teach this
VII. PLEADING
A. What is a pleading?
1. a written form to give notice to the other parties about your contentions
B. Rule 7 Pleadings, Motions, & Other Papers
1. 7(a) Pleadings
(a). 2 main types of pleadings
(i). Complaints
o Basic complaint only (what initiates the lawsuit)
o Third-party complaint or (depending on what side they
come in on)
(ii). Answers
o Answer to a complaint only
Answer (Reply) to s Answer if the court so orders
only
o Answer (Reply) to a counterclaim only
o Answer to a crossclaim or
o Answer to a third-party complaint or
2. 7(b) Motions & Other Papers
C. Rule 11 Requirement to Sign Pleadings, Motions, and all other representations to the
court
1. requires attorney to sign all documents sent to court (except discovery documents)
(a). **certifies to the best of you knowledge, beliefs, and abilities after an inquiry
reasonable under the circumstances that various things are true:
(i). that this paper is not for an improper purpose
(ii). that the legal contentions are warranted by law or at least not for
frivolous reasons, such as just that the law should change
(iii). that the factual contentions have evidentiary support, or are likely
to after further investigation.
(iv). that denials of factual contentions have evidentiary support, or are
likely to after further investigation (mostly for )
2. Important concepts of this rule
(a). continuing certification
(i). the certification is effective every time the document is presented in
court
(b). sanctions are discretionary
(c). Motion for Violation of Rule 11
(i). if a party believes the other has violated this they may serve that
party with this motion
(ii). but- is not filed until after 21 days the violating party has failed to
amend (Safe Harbor)
D. Rule 8 General Rules of Pleadings
1. Complaints 8(a)
(a). The pleading that commences the lawsuit

18

(b). Must include 3 things:

(i). Statement of the grounds for SMJ
o Do not need to prove PJ- only will have to answer to it if the
raises it as a defense
(ii). Short and plain statement of claim showing that you are entitled to
relief
o usually doesnt need too much detail
o BUT- must include the elements of the prima facie case
o Exceptions where more detail may be need:
Rule 9(b) circumstances constituting fraud or
mistake
9(g) items of special damages- damages that dont
normally flow from an event
ex: man with erection problem following car
accident
o **If there is no rule requiring specificity FED COURT
CANT REQUIRE IT**
(iii). A demand for judgment
2. Answers/Responsive Pleadings 8(b)
(a). Within 21 days after receiving service of process (60 days after waiver was
sent if they waived process & 90 days if sent to a foreign who waives), the
must do one of the 2 things in Rule 12(b) <see section V. of this outline>
(i). Answer, -or(ii). Make a motion
(b). If first files a 12(b) motion and is denied then they have 14 days to file
their answer after that (which cannot include any waivable defenses)
(c). Components of an Answer
(i). Respond to the allegations in the complaint
o 3 possible responses
admit
deny
failure to deny is treated as an admission on
all allegations except damages
idk lack of sufficient info to confirm or deny
(effectively a denial)
(ii). Raise affirmative defenses
o If did not start off with a motion this would include those
12(b) defenses (but they will also be waived after this first
pleading)
o Other common affirmative defenses
accord & satisfaction
arbitration & award
assumption of risk
contributory negligence
discharge of bankruptcy
duress
estoppel
failure of consideration
fraud

19

illegality
injury by fellow servant
laches
license
payment
release
res judicata
statute of frauds
statute of limitations
waiver

E. Rule 15 Amending Pleadings

1. Liberalness of Federal Courts
(a). in fed courts we want to decide cases on the merits not technicalities
2. 15(a) 3 Basic Rules of Amendments
(a). When Responsive Pleading is Required / has a right to amend once
within 21 days of other party making a motion -OR- within 21 after the
other serves his answer/reply (whichever is sooner)
(i). ex: motion to dismiss filed by , does the still have the right to
amend? YES(ii). We want to give parties due process by allowing them to correct
their mistakes and procedural technicalities, such as venue and PJ
before fully dismissing the case (remember fed courts want to
decide cases on the merits)
(b). When Responsive Pleading is not Required- has a right to amend once,
w/in 21 days after serving her answer.
(c). if there is no right to amend, then you seek leave of court. However,
amendment shall be freely given when justice so requires
(i). will depend on the circumstances surrounding not amending earlier
3. 15(b) Amendments During and After Trial (Varience)
(a). When the evidence or issues presented at trial do not match was plead to
(goes beyond the scope)
(i). ex: starts presenting evidence that indicates an affirmative
defense that was not in his answer- such as her complaint only
talked about a breach of K, but she starts talking about a tort during
trial.
(b). What happens if there is varience?
(i). Either:
o Other party will not object to it
if they dont object, then we treat the pleadings as
though they are amended to show this new stuff
and once the proceeding are over the pleading will
actually be amended to reflect this new info
o Other party will object to it
if they object then the evidence is inadmissible
-BUT- even at this late stage in the proceedings, the
party that put on the new evidence may seek leave to
amend their pleading

20

 However, the ability to do this is a much

tougher standard than normal amending of
pleadings
the party will be allowed to do this if
they can show that this new evidence
promotes the presentation of the
merits
-and- as long as the other side cannot
show prejudice in maintaining its case
on the merits
4. 15(c). Amendments after the statute of limitations has run (Relation Back of
Amendments)
(a). If a statute allows it, relation back is allowed
(i). relation back the ability to look back to the date of the original
pleading
o Amended pleadings will relate back so long as the change to
the pleading concerns the same conduct, or T/O as the original
pleaded.
(b). Relation Back to Join a New Claim/Defense
(i). ex: case filed July 1st (prescription runs on July 10th). On July
15th, attempts to add a new claim
o party would be allowed this so long as the new claim/defense
arose from the same T/O as the claim filed on July 1st.
(c). Relation back to Change the Defendant
(i). Joinder of new in amended pleadings must meet 3 standards:
o 1. sued the wrong person the first time
o 2. the correct party knew or should have known they should
have been the one subject to the lawsuit (charged with
knowledge), -ando 3. they would have been a party BUT FOR the mistake of the
plaintiff
VIII. JOINDER- (overriding the plaintiffs party structure)
A. Basic Way to Discuss on Exam
1. Is there a procedural rule (FRCP) which allows the joinder of this claim or this party?
(a). New parties obviously also bring in new claims, but new claims are just new
claims against already existing parties
2. If there is, then is that claim supported by SMJ?
(a). If yes, then we may join
(b). If no, then can we look to supplemental jx under 1367
(i). Of course this will depend, if there are already other claims in the
suit which have fed SMJ and if this new claim arose out of the
same T/O (look to rules of this in 1367- never, ever, mention supp.
jx unless you have shown that you need it through absence of SMJ)
B. Rule 18. - Joinder of claims
1. 18(a). In general it gives a party asserting a claim, counterclaim, crossclaim, or thirdparty claim the right to join, as independent or alternative claims, as many claims as it
has against an opposing party.
(a). Most Important for Original Claim (s Claim)
(i). it gives them their right to bring any and all claims against

21

(ii). they dont have to be transactionally related (can be for anything)

o Ex: sues for a contract they entered into and also sues for
damages from a car accident they were both involved in (K
breach & tort)
(b). This Applies to All Claimants ( and )
(i). ex: if files a cross claim, he may also reap these benefits (also
dont have to relate) counterclaim for repayment of different
contract for wedding cake & any other valid claims he believes he
has
2. **Of course these claims must also have SMJ (or supplemental jx if necessary)**
C. Rule 13. Counterclaims and Cross-claims
1. Counterclaim a claim against an opposing party (By s, only against or someone
else joined on the side)
(a). This is NOT considered a defensive move (filing a motion to dismiss for lack
of PJ or submitting their answer with affirmative defenses)
(i). it is an offensive move, almost like they sued the themselves
initially
(b). 2 Types of Counterclaims:
(i). 13(a). Compulsory counterclaims
o a counterclaim that the asserts came from the same T/O as
the s claim against the must be brought
o Waiver of Compulsory Claims If the counterclaim arose out of the T/O it must be
raised by the in the current case, otherwise the
waive it.
If not raised and subsequently waived, would not be
able to sue at a later time for that claim (it basically
becomes an invalid cause of action if it is not raised in
the present case)
This is the only type of claim that has this effect.
o Exceptions to Compulsion (1). If when the action was commenced, the
compulsory counter-claim was already the subject of
another pending action, - or

(ii). 13(b). Permissive Counterclaims

o any counterclaim that is not a compulsory counterclaim
(doesnt arise from same T/O)
o they may be raised at any time, and do not have to be related
to the present case
o 13(d). A may not assert a counterclaim over the United
States or an officer or agency of the US.
(iii). Hypo 1: -(PA)and -(OH) involved in accident when both of them
ran a yellow, and who was travelling left ended up getting tboned. sues for $100,000 (original claim) for the cost of the car,
medical bills, etc. files a counterclaim for $80,000 for basically
the same damages.
o Both of these claims may be properly brought
1. must file counterclaim NOW because it is =>
compulsory

22

 Why? it arose from the same T/O

If he doesnt raise it now, he will lose the
ability to raise it later
2. Both claims also have SMJ
Diversity Jurisdiction
Both Parties are diverse, -andBoth claims are >$75,000
o What if s counterclaim was only for $60,000?
1. Both claims allowed and s claim is still
compulsory
2. s claim has SMJ, but s counterclaim doesnt
Supplemental jx?
Does 1367(a) allow it? YES (there
is an original claim that has SMJ, and
both claims arose from the same T/O
But, does 1367(b) kill it? NO (the
original claim was a diversity claim,
but counterclaim is not one of the
circumstance under which 1367(b)
would kill it
Yes, there is valid supplemental jx
(c). **These claims must also have SMJ (or supp jx if needed)**
2. 13(g) - Cross-claim a claim against an existing co-party that MUST have arose from
the same T/O as the underlying dispute
(a). -BUT- it is not waivable
(i). counterclaims if it is from the same T/O then it must be brought in
the present dispute or it is lost forever
(ii). not the case here- parties could still bring cross-claim claim at a
later time.
(b). Hypo 2: 3 car fender bender. The front car, -(SC), sues the middle car, 1(NC), and the back car who started it all, 2-(NC). Middle car (1) also files
a cross-claim against back car (2). All claims were >$75,000
(i). Can the joined claim by 1 against 2 be properly brought?
o 1. Claim is allowed under Rule 13(g)
o 2. SMJ- No, the parties are not diverse
Supplemental jx?
Does 1367(a) allow it?
YES- s original claims both have
valid SMJ, and the cross-claim arose
from the same T/O as s claim
Does 1367(b) kill it?
NO- while the original claim is a
diversity claim, 1s claim is not
under one of the circumstance where
b will be kill it
Yes, there is valid supplemental jx
3. 13(h) - Joining a Party in a Counterclaim of Cross-Claim(a). A new party may be joined/added to a counterclaim/cross-claim under the
standards of Rule 19 or 20.

23

(i).

ex: 3 car fender bender- only files suit against 1 originally. 1

could file counterclaim against for unnecessarily slamming on
her breaks and also join 2 for hitting him
4. **These claims must also have SMJ or supp jx if needed (new parties also must have
PJ and proper venue)**
D. Rule 20 - Permissive Joinder of Parties (Proper Parties) (Multiples s & s can be
joined at the outset of the lawsuit)
1. 20(a) Persons who may join or be joined as co-parties in a lawsuit
(a). 20(a)(1) Plaintiffs
(i). Can someone else and I sue someone as co-plaintiffs?
o ex: Car accident- where me and best-friend where both in the
same car and are both injured. Can we sue the other driver
together?
(ii). 2 Part Test to determine this:
o (1). Did our claims arise from the same T/O?-ando (2). Do we raise at least one common question?
ex: Was the other driver negligent in their operation
of the motor vehicle?
(iii). If yes to both question, the s may join together (they dont have
to, but they can)
(b). 20(a)(2) Defendants
(i). Can I sue two defendants as co-parties?
o ex 1: 3 car fender bender- front car can join both of the cars
that hit him
o ex 2: Car accident- reason for the accident was other drivers
brakes malfunctioned. Can I sue him (his insurance company),
the dealer that sold him the car (World Wide Toyotahehe),
and the manufacturer- Toyota?
(ii). Same 2 Part Test to determine:
o (1). Did my claims against these s arise from the same T/O?
o (2). Do my claims against them involve one common
question?
ex: Negligence?
Driver- negligent in his operation of car?
Dealer- negligent in selling him faulty car?
Manufacturer- negligent in producing faulty
car?
2. **Of course the claims must also have to SMJ or Supp jx if needed (new parties also
must have PJ and proper venue)**
(a). Supplemental Jx issues under Rule 20
(i). If the original claim was a diversity claim, -ando plaintiffs (typically to s joined together) may not use SJ to
find SMJ for any of their claims over 2 or more s joined as
parties at the outset
ex: car crash exam when my best-friend and I sue
together
If we sue both the other driver and his car
manufacturer, those two claims must also be
based on valid SMJ
o This is an area where 1367(b) kills it

24

E. Rule 19 Required Joinder of Parties (Necessary & Indispensible Parties) (Court

forces new / into the lawsuit)
1. 19(a). People Required to be Joined if Feasible
(a). The court will reach up and force someone to join a lawsuit if:
(i). There is an absentee party who has not been joined
(ii). They are necessary because have a significant interest in this case
o This does not include joint tortfeasors
although they probably could meet the requirements
the SC has said that they are not necessary
(b). Is it necessary to join this party? 3 Part Test- if ANY of them are met they
are necessary:
(i). 19(a)(1)(A) - Without the absentee, is the court unable to still
accord complete relief among the existing parties?
o **this is important in the pursuit of efficiency**
(ii). 19(a)(1)(B)(i) Will the absentees ability to protect his interests be
harmed or impaired if not joined? (a very subjective test)
(iii). 19(a)(1)(B)(ii) Does the absentees interest in the issue
potentially subject the to multiple or inconsistent obligations?
o We want to avoid any inconsistent or unnecessary additional
litigation down the road
(iv). Hypo: Bob Barker holds 1,000 shares of Apple stock. John Smith
says that he and his friend Bob Barker agreed to buy those shares
together. John() sues Apple ( ) to have them cancel those 1,000
shares and have them reissued in both of their names. Is Bob a
necessary absentee party that should be brought in?
o 19(a)(1)(A) Will court be unable to accord complete relief
w/o Bob?
Yes, cannot wrap up the case w/o his side of the story.
If John wins and he is not there, Bob may end up
suing later anyways.
o 19(a)(1)(B)(i) Will Bobs ability to protect his interests be
harmed if he is not joined?
Yes! He may lose his stock in Apple!
o 19(a)(1)(B)(ii) Does Bobs absence possibly subject the
Apple ( ) to multiple or inconsistent obligations?
Yes, again, Bob would probably sue Apple if John
wins
(c). Is joinder of the absentee party even feasible?
(i). Must look to the necessities for all s:
o Is there PJ?
o Is there SMJ?
o Does the joined party agree to the Venue?
If not, is the Venue even proper?
(ii). If these are not all met, then the joinder is not feasible
(d). What if there is a necessary party, but joinder of them is not feasible?
(i). 19(b)- In equity and good conscience, can we proceed w/o the
absentee or must we dismiss the lawsuit all together?
o Four factors must be weighed to determine the kind of harm
we are realistically worried about:

25

 (1). The extent to which a judgment rendered in the

persons absence might prejudice that person or the
existing parties
(2). The extent to which any prejudice could be
lessened or avoided by:
protective provisions in the judgment
shaping the relief, -or other measures
(3). Whether a judgment rendered in the persons
absence would be adequate for the current parties?;
-and (4). Whether the would have an adequate remedy if
the action were dismissed for non-joinder?
(ii). If the court decides to dismiss w/o prejudice rather than go forward
w/o absentee => the absentee is labeled indispensible for future
litigation on the matter
o Court will almost never dismiss unless there is an alternate
forum where the case can be brought
2. **Of course the claims must also have to SMJ or Supp jx if needed (new parties also
must have PJ and proper venue)**
(a). Supplement jx issues for parties joined under Rule 19:
(i). If the original claim was a diversity claim, then:
o Original (s) may NOT use supplemental jx over any
claims against new parties forced in by the court
o Any new s that were forced in by the court also may NOT
use supplemental jx on any of their claims
(ii). This is an area where 1367(b) kills is
F. Rule 14 Third Party Practice (Impleader) (1 forces new into lawsuit)
1. Allows the to join a new third party defendant (TPD), the original would become
the third party plaintiff (TPP)
(a). Joins them because he believes he should not have to pay the full claim to
if he loses the case
(i). ex: joint tortfeasor (REMEMBER, they are not necessary parties!)
2. When is this allowed?
(a). Only allowed if TPD is or may possibly liable for all, or part of the original
s claims against the (TPP)
(b). **Claim for indemnity (all of the claim) or contribution (part of the
claim)**
(c). THIS IS NOT A CROSS-CLAIM
(i). Cross-claims deal with parties that are already joined as codefendants
3. Defenses the TPD may file
(a). Any defense against the TPPs claims against the TPD,
(b). Any defense against the Original s claims against the TPD, -or(c). And defense against the Original s claims against the TPP (original )
4. Other possible claims that may be asserted once this party is joined:
(a). By the TPD:
(i). Must file any compulsory counterclaims under rule 13(a) against
the TPP (original )

26

(ii). May file any permissive counterclaims under rule 13(b) against the
TPP (original )
(iii). May file a claim against the original , so long as it arises from
the same T/O as the original claim
(iv). 14(a)(5) - May proceed against another non-party (TPD2) under
this rule (Rule 14), so long as they assert that the TPD2 may be
liable for all or part of claim against him.
(b). By the original :
(i). May file a claim against the TPD so long as it is arises from the
same T/O as the original claim
5. **Of course the claims must also have to SMJ or Supp jx if needed (new parties also
must have PJ and proper venue)**
(a). Supplemental Jx issues for parties joined under Rule 14:
(i). If original claim was a diversity claim:
o The original may not use supplemental jx on any claims he
brings against the TPD or any of the subsequent TPD2s, etc.
(ii). This is an area where 1367(b) kills it
G. Rule 24 Intervention (absentee non-party acting as / forces their way into the lawsuit)
1. Someone who is not a party seeks to be joined in the lawsuit
(a). If they:
(i). Come in as a => they may assert a claim over the (s)
(ii). Comes in as a => they may have the amend to assert a claim
over them
(b). Court may realign (move her to a different side) if they feel it is necessary
2. There are two types:
(a). 24(a) Intervention of Right
(i). Absentee must show they have the right to intervene because they
either have:
o an unconditional right to intervene by a federal statute; -oro that the absentees interests are not adequately represented
right now, or they will be harmed if she is not joined
(ii). Similar standard as Rule 19(a)(1)(B)(i) for Necessary Parties
o Both aim at protecting the same things
o So, why do we have both?
Depends on who asserts it
Rule 19- asserted by current parties and court
Rule 24- asserted by non-party wishing to be
included
(b). 24(b) Permissive Intervention
(i). Absentee may also come in if they show that their respective claim
or defense has at least one common question
o ex: Bystander who witnessed my horrific car accident with
best fried who is trying (albeit for a claim that is sure fail) to
also sue for NIED
(ii). It is within the courts discretion where or not to let them in on this
3. **Of course the claims must also have to SMJ or Supp jx if needed (new parties also
must have PJ and proper venue)**
(a). Supplemental Jx issues for parties joined under Rule 24:
(i). If the original claim is based on diversity jurisdiction:

27

o The original may not use supplemental jx on any claims it

assert over the new absentee party that forced her way in
o If the absentee party joins as a they may not use
supplemental jx for any of their claims
H. Rule 22 Interpleader (/ with double/multiple liability forces in all other possible
parties that could make claims against him as joint s/s)
1. Insurance companies often use this when there are multiple claimants to the same
pot of money
2. 22(a)(1) By a plaintiff
(a). Ex: (stakeholder) filed suit against for a piece of land believes he owns
and that is currently in possession of.
(i). After files, he learns there are 4 other people who are claiming
that they also own some piece of the land
(ii). He may use interpleader to force all those other people in as joint
s (claimants)
(b). The claims of the several claimants, or titles on which their claims depend do
not need to have a common origin or deal with the exact same thing
(i). ex: one of the new s only claims to own a small corner of the
land, and another one of the new s claims to only own a section
near a pond, etc( could still force them all in)
3. 22(a)(2) By a defendant
(a). In the same scenario above the (stakeholder) may seek interpleader through
counterclaim or cross-claim
4. Two ways to invoke Interpleader:
(a). Rule Interpleader (Rule 22)- A regular old diversity of citizenship case
(i). Same venue rules
(ii). Same service of process (PJ) rules
(iii). Diversity Jurisdiction
o stakeholder must be diverse from every claimant (parties must
be different on either side of the v.)
(b). Statutory Interpleader
(i). Has its own group of statutes which decide whether parties can be
joined (these statutes are usually the better deal)
o 1335 Diversity Jx
Diversity
Dont even have to look at the stakeholders
citizenship
All you need is 2 diverse claimants
Amt. in Question
Only must have $500
o 1397 Venue
venue may be laid where any of the claimants resides
o 2361 PJ
Claimants may be personally served nationwide to
assert PJ over them
You would never have a problem finding PJ unless the
claimants were outside the US
5. **Of course the claims must also have to SMJ or Supp jx if needed (new parties also
must have PJ and proper venue)**

28

IX. PRE-TRIAL ADJUDICATION (DISMISSALS)

A. NOTE: and as used in these sections does not necessarily mean the original or of the
case, is just to indicate the party filing the claim and to indicate the claimant. ( could be
the original or TPP in their claim against a TPD)
B. Rule 41(a) Voluntary Dismissal - ( wants to pull the plug on the case)
1. 2 ways to do this:
(a). Where must have the agreement of someone else:
(i). Stipulation of the Parties
o getting all the parties to agree to dismiss
(ii). Court Order
o the court agrees to dismiss the case
(b). Where does not need someone elses agreement:
(i). Written Notice of Dismissal
o ** may dismiss this way once w/o prejudice, so long as it is
before the serves their answer or motion for summary
judgment
o The second time files a notice of dismissal => it is with
prejudice and they cannot bring the suit again
o Why?
Time element
dont want to let the case get really far into it
and then the pulls the plug
Frequency element
also want to limit the amount of times the
can do this w/o prejudice so that they dont
continue to repeatedly file and dismiss their
case
o 41(c) - For written notice of dismissal of Counterclaims,
Cross-claims & Third Party Claims, dismissal must be made:
before a responsive pleading is served; -or if there is no responsive pleading, before evidence is
introduced at a hearing or trial
C. 41(b) - Involuntary Dismissal (brought by or court)
1. 3 Reasons this is Done:
(a). Failure to prosecute
(i). hasnt done anything with the case in a while
(b). Failure to abide by Federal Rules
(c). Failure to abide by Court Order
2. Usually only the raises these reasons, but the court has the authority to raise them if
they believe it is necessary
3. Order to Show Cause
(a). Before the court grants the involuntary dismissal they will generally give
notice to the that such a thing is pending
(b). I order you to show a cause why I shouldnt dismiss you
4. Effect of an Involuntary Dismissal
(a). Any involuntary dismissal will be treated as an adjudication on the merits
(aka is dismissed w/ prejudice), and can not be brought again
5. Other Grounds the Court will Issue an Involuntary Dismissal for

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(a). All of the 12(b) defenses if granted will also act as involuntary dismissal, but
will be dismissed w/o prejudice and the claim can be filed again at a different
time unless it is a 12(b)(6) defense.
(b). 12(b) w/o prejudice:
o Jurisdiction (PJ & SMJ),
o Process and its service,
o Venue, -oro Failure to join a party under Rule 19
(c). 12(b) WITH prejudice:
o Failure to state a claim upon which relief may be granted
D. Rule 55 Default- (brought by the against the for failure to answer the complaint)
1. Default is brought by against when they fail to plead or otherwise defend the
allegations against them in a reasonable amount of time
(a). Rule 12- must respond under this rule w/in 21 days of service of process
(b). If they dont they are not automatically under default judgment in Federal
Court
2. 2 Step Process of Default Judgments:
(a). Get Default entered on the Docket
(i). notation on the docket of Clerk of Courts sheet
(ii). must request from clerk of court through affidavit or otherwise
(iii). once it is entered, cannot answer or continue unless they get the
default set aside
(iv). can not recover with just the default entry, they must also have a
judgment
(b). Default Judgment
(i). By the Clerk
o dont have to see a judge for judgment if:
s claim is for a certain sum, -or for a sum that can be made certain through
computation
o Must also confirm that non-appearing is not a minor or
incompetent person
(ii). By a Judge
o If doesnt meet the requirements to have the judgment
entered by the clerk of court they must see a judge
o Rule 54(c) - In a default judgment the cannot recover more
or a different type of relief than was asked for in the
complaint
E. 12(b)(6) Motion (brought by the against based on contents of complaint)
1. **This is the ONLY 12(b) motion that will be dismissed WITH prejudice (all others
can be brought again)**
2. Motion to dismiss for failure to state a claim in the complaint on which relief can be
granted (some states call this a demur)
(a). Court does NOT look at the evidence
(b). Court looks only at the face of the complaint and asks: If all the things the
asserts are true, then would the be able to win a judgment? (aka: does the
law recognizes a claim for what the said happened?)
3. If dismissed- will usually request leave to amend
(a). this request is almost always granted
4. Usually comes up early in the case

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F. Rule 56 Motion for Summary Judgment (brought by either party)

1. Court looks at the evidence presented
2. To receive Summary Judgment, the moving party must prove:
(a). Normally
(i). that there is no genuine issue of material fact (facts are not in
dispute)
(ii). AND- that they are then entitled to judgment as an issue of law
(b). Or that
(i). that has no evidence to support a certain claim
3. This is allowed because we want to reserve trials for resolving disputes of fact
(a). However, judges are very careful of it because they dont want to usurp the
jurys power
(b). Summary judgment is rarely granted for the party with the burden or proof at
trial
(c). Tougher to get summary judgment in torts cases
(i). credibility?
4. Where does the evidence come from?
(a). admissible evidence
(i). Depositions and other things sworn under oath
(ii). and-, Rule 36 Admissions
(b). Pleadings are not admissible evidence unless they are verified pleadings
(i). because pleadings are generally not sworn under oath
(ii). however, they may contain admissions which are admissible
5. REMEMBER- Judges may never resolve disputes of material facts during a
summary judgment!!
(a). ex: Car crash with bff- We (the s) allege in our complaint that ran a red
light
(i). he says in his answer that he had the right-of-way and that we ran
the red light
(ii). since pleadings are not evidence we must both get affidavits
o We get an affidavit from his friend saying hes a huge drug
addict and that he was probably high at the time, and probably
did run the red light
o He gets testimony from a questionable eye-witness claiming
that we actually ran the red light
(iii). Can we get Summary Judgment against ?
o NO
o because we have both presented some admissible evidence
and there is a material of fact as to who was actually the
negligent party that ran the red light
However, if drug addict Joe never presented any
evidence, then we possibly could get summary
judgment for failure to present evidence in support
of his defense
o just because our evidence seems the most damning, does not
mean that judge will enter summary judgment in our favor

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