PLEADING

Complaint Requirements o Must state a claim for relief (Rule 8) Short and plain statement addressing jurisdiction Short and plain statement address claim Address relief Form PLEADING SUFFICES RULE_________ See Dioguardi (examine nature of the claims limited english skills) o Plausibility Ignore conclusory allegations Complaint must be plausible See Twombly (not plausible because claims of telecommunications not backed by evidence) See Iqbal (conclusory allegations of discrimination were not plausible) o If some claims valid and others are not dismiss only the valid ones not all See American Nurses Assn (dismiss conclusory claims of segregation and hear valid claims) o Pieces submitted must be signed by Attorney (Rule 11) Heightened Requirements for special cases o Fraud/Mistake (Rule 9) Must state particular circumstances of fraud/mistake Malice, intent, knowledge, ect can be pleaded generally o Special Damages (Rule 9) If you dont bring special damages in beginning then forfeited Must bring all special damages at once in pleadings (cant amend later) See Ziervogel (plead many special damages after car crash, but could not amend complaint to include damages for blood pressure because special damages need to be plead at once) o Plausibility in Private Securities Litigation Reform Act claims Inference of scienter (to deceive, manipulate or defraud) must be more plausible than other inferences that can be drawn Ct needs to evaluate all inferences and see if others are more plausible, if so then case cannot go on. See Tellabs (inference of wrong doing must be more plausible than other scenarios/reasons drawn)

Sanctions and Integrity (Rule 11) Applies to any motion or pleading signed by lawyer or client Must be filed separate of any other filing o Safe Harbor - Other side has 21 days to retract contended motion/pleading Scalia dissent: license to violate the rules (lie and if get caught just withdraw without sanction) Requirements of Sanctioned Attorney o Reasonable fact checking and made in good faith See Hadges (attorney looked into and believed client about horse racing allegations when filing and allowed to retract controversial filing w/in safe harbor period) See Surowitz (lady although could not articulate suit specifics was represented by proper authority in stock suit)

Pre-Answer Motions Explanation o If filed not required to answer complaint until motion is addressed o If motion granted Court sometimes gives plaintiff to resubmit complain Court may dismiss case o If Motion Denied - Procedure moves on to answer complaint o If no reason for dismissal according to pretrial amendments (Rule 15(a)) there is an automated right to file 1 amended complaint if case dismissed with a pretrial motion Requirements (Rule 12) o Only one chance to file (cant file another one after) o Must assert within 21 days after being served o Counterclaim must respond within 21 days o If preanser motion denied then response required in 14 days of ct decition o If motion for more definite answer granted response required in 14 days Defensive Pre-Answer Motions o Defenses Judgment on the Pleadings can ask for summary judgment based only on pleadings Motion made after pleadings are closed, but before trial For a more definitive statement (Rule 12(e)) Must be filed before a responsive pleading If vague/ambiguous can ask for a more definitive statement Double edge sword because may plead better and raise more issues o 12b types of Defenses (Rule 12b) Must be filed before pleading 1. personal jurisdiction 2. improper venue 3. insufficient process (challenges summons itself no signature, ect) 4. insufficient service of process (challenges manner of service not proper delivery, ect) can be filed before pleading or in answer 5. failure to state a claim upon which relief can be granted i. if filed court will view the complaint in a favorable light before dismissing (take allegations as true) 6. failure to join a party under Rule 19 7. lack of subject matter jurisdiction Offensive Pre-Answer Motions o Motion to Strike (Rule 12f) Can be raised by the court itself Can be filed by either party within 21 days of being served Can move to strike insufficient defense, immaterial, impertinent or scandalous material introduced in pleadings Rules Waived o Once a rule 12 pre-answer motion cant bring another pre-answer motion (Rule 12g) Only allowed 1 shot at pre-answer motion o Rule 12b2-5 if not stated in pre-answer motion (if made), or the answer personal jurisdiction improper venue insufficient process insufficient service of process Way to Get Around if dont file can raise rule 12(b7) indispensable party o any motion under Rule 12(b1-7) filed must be heard before trial unless court grants deferral (Rule 12(3i) If ) o Failed to include in an amendment allowed under Rule 15(a1)

Answer

After Pre-answer motions asserted and weighted upon the defendant must anser the complaint o If no pre-answer motion filed can assert Rule 12 defenses Requirements o Written by defense lawyer and reviewed with defendant o Serve it to the plaintiffs lawyer o File it with the court (within 21 days) Rule 6(a) Elements o Respond by paragraph by paragraph to allegations in the complaint 3 ways to respond admit, deny, or claim lack of sufficient info (treated as denial) Steps o decide what affirmative defenses to assert o decide what rule 12 defenses to assert if not asserted/waived in pre-answer motion o decide whether to assert any claims counterclaims, impleader, cross-claims, ect

Amendments and Supplemental Pleadings (FRCP 15) Original Complaint FRCP 15a1b o Amending the original complaint is needed w/in 21 days OR before a response to the complaint (answer) is given by the defendant need to file amendment ASAP or else required to file motion for amendment with the judge After Pleadings (Still Pre-Trial) FRCP 15 o Defendant allowed to amend pleading (answer) 1 time w/in 21 days after filing so long as no response is required o Plaintiff allowed to amend complaint 1 time w/o leave/permission before Answer is given by the defendant (FRCP 15a1a) o All other times need consent from opposing party or court Amendments should be freely given by court when justice so requires or by written consent of the other party (Rule 15a2) If other party does not consent then file motion with judge for approval of amendment Liberally granted Cases should be decided on merits not by pleading mistakes Closer to trial the harder it becomes o See Aquaslide (allowed to amend right manufacturer) Trial and Post Trial o Relation Back Amendment New Claim Amendment Requirements (FRCP 15c1b) Allowed under statute of limitations Arose out of occurrence/transaction that was the issue of the original pleading New Party amendment Requirements (FRCP 15c1c) Claim against new party arose out of occurrence/transaction that was the issue of the original pleading New party had notice, within the period of the original complaint against parties in suit New party knew/should have known that they would be sued, but due to mistaken on identity on the plaintiffs part the proper party was not names Must add w/in 120 days of filing complaint (FRCP 4m) See Krupski (cruiseline knew it was subject to suit even when plaintiff sued wrong company) See Worthington (amendment did not relate back to cops because they did not know of suit) o Generally amendments during and post are much harder See Moore (allowed amendment (Rule 15b) because implied consent arguing custody of kids) Denying Amendments o Inefficiency ex: discovery period ends and nothing turns up then seek to amend another complaint where more discovery is needed o Insufficient Claims ex: statute of limitations barred, failure for adequate relief o Prejudice to opposing party delay/loss of evidence o Bad Faith ex: waiting to amend so that opposing party cant get witness/expert in time

SERVICE OF PROCESS
Federal Rules Governing Service 2 part test 1. proper service under FRCP 4/5 or state law 2. meets Mullane Notification Test 1) Proper Service General Requirements o Summons and complaint must be served together (Rule 4C1) o must be served together within 120 days of filing the complaint (Rule 4M) If not served to all parties w/in period then those parties dropped from case Case dismissed if not served w/in period and cant show good cause why not o Must be carried out by someone who is at least 18 and not a party in suit (Rule 4C2) At plaintiffs request court may order that service carried out by State Marshal o Court still need proper PJ unless excused by federal statute Service on Natural Persons (Rule 4E) o Types of allowable service Personal delivery Leaving summons at dwelling or usual place of abode with a person of age who resides there (3 parts) Delivery upon an agent appointed by the defendant to receive service Service under the provisions of the state where the Fed Ct sits (for out of state defendants) Service under the provisions of the state where the defendant is actually being served o ex: P in CA (court in CA) and D in NY can serve on CA or NY rules Service on Individuals of a Foreign Country (Rule 4F) o By any internationally agreed means of service that is reasonably calculated, or o If no other alternative, by any other reasonably calculated means provided by foreign law, foreign authority, or personal service (unless prohibited by foreign country Service on a Corporation or Unincorporated Associations (Rule 4H) o Same as service upon an natural person (Rule 4E) Additionally service can be made to an officer/manager/general agent o Note: even if its a business, it may not be incorporated - treat it like an individual Federal Waiver of Service (Rule 4D) o Attach waiver of service with summons/complaint and send by plain mail o When receive waiver request - defendant has 30 days to respond If no response, then the defendant will then have to pay for the cost to serve him by other means o Incentive - If sign will have 60 days to respond to the complaint Normally only 20 days to respond to complaint o Not waiving any other rule 12H1 motions Once Parties Properly served o If additional pleadings/complaints arise parties must follow Rule 5 when serving new parties (impleading, third party, ect.) o Allowable methods of service (Rule 5b2) Handing it to person with persons office clerk or other person in charge If no one in charge a conspicuous place in the office at dwelling/abode with person of suitable age who resides there w/ court clerk if person has no known address electronic means if person consents in writing delivery by any means in which the person consents

2) Notification Test (2 part test - See Mullane) Even if service is given properly under FRCP or state laws Notice needs to be reasonably calculated to result in actual notice o regardless of residency o regardless of in personam or in rem o notice so reasonable time afforded for those to make an appearance o does not require the best method o reasonable notice personal delivery certified/regular mail other reasonable methods if above notice is not possible o then the method of service used must not be substantially less likely to result in notice than other available means o methods ex Mullane: attach chattel/property in combo w/ constructive notice (newspaper publication) Parties you are notifying o Known Parties: if you know name & address, you must notify the party directly (e.g. in person or by mail, not by publication) o Unknown Parties: if you dont know address, you must make reasonable efforts to get the address Reasonableness Examples o When Reasonable See Dusenberry (certified mail to prison in addition to guard signing is proper service) See Ntnl Equipment Rental (consent to NY agent for receipt of service and agent mailed notice) o When not reasonable See Greene (landlord could expect kids to rip down eviction notice) See Maryland Firemens Assn (MD state law required first class mail not certified mail) See Ntnl Equipment Rental (Dissent) See Dusenberry (Dissent) Attacking Service (Rule 12B5) Attacks adequacy of the method used by the plaintiff to give notice of the action Attack reasonableness of notification however unlikely to win since you received noticed If does not meet state or FRCP 4 then can raise defense for renewed service

PERSONAL JURISDICTION
Personal Jurisdiction Steps Find jurisdiction (traditional/specific/general) Reasonableness of exercising PJ (must be extremely compelling to not) Due Process satisfaction (long arm statute) 1) Jurisdiction - If a traditional base cannot be met to satisfy due process the courts must find either specific or general jurisdiction to satisfy the 14th Amendment Traditional Bases if establish one of these 3 then there is no need to address anything else o Physically Present - Even if only temporary in state for reasons unrelated to claim, subject to PJ is properly served with process in state See Burnham (fathers physical presence in state was sufficient even w/o any other contacts) Corporations - If corporation physically present in state then this works Doesnt work if corporation worker is only passing thru forum w/o min contacts o Domicile if domiciled in the state then you are subject to Personal Jurisdiction of the state Corporation = principle place of business or where incorporated o Consent Defendant can consent to Personal Jurisdiction of a Court Explicit - by Contract/agent - agree to trial in a certain forum or agent to receive service in forum See Natl Equipment Rental (appointed agent in contract to receive notice) Implicit - By driving through a state you may implicitly consent to actions brought against you in the forum in case you are in an accident See Hess (consented to service by agent when driving through MA and using their roads) Waived - A defendant does not raise Personal Jurisdiction as a Defense Defendant appears in Court to contest Personal Jurisdiction By appearing, you consent to courts decision See Insurance Corp of Ireland (challenged PJ but challenged other merits = consent to PJ) Specific Jurisdiction (Intl Shoe Test) o If the courts cannot find a traditional base for meeting due process then the Intl Shoe test comes into play (2 part test = Minimum contacts + Reasonableness) o Minimum Contacts - The activity that gives rise to the claim occurs in the forum Requirements Benefits and protection of law of forum Quality and nature of contacts Continuous vs. Single Act vs. Casual/isolated o Continuous = yes o Single Act = maybe See McGee (single act of soliciting insurance policy was contact) o Casual/isolated = no Purposeful Availment o Corporations (Stream of commerce) = most likely not Factors (OConnor Opinion - Asahi Case) Directly markets/advertise to forum Design goods for forum Awareness product may end up in forum is not purposeful availment Factors (Concurring Opinion - Asahi Case) Reasonable quantity ends up in forum (derive benefit from forum) See Worldwide (could not foresee being sued for car crash in OK) See Asahi (stream of commerce was not direct marketing in US) o People out of State can purposefully avail in forum (must solicit in forum) See Calder (written in FL but published in CA = PJ in CA) See Keeton (sold magazines to NH which = purposeful) See Kulko (buying plane ticket to go to state is not purposeful)

General Jurisdiction o Requirements Continuous and systematic presence, or Serving a person while in the forum, or Domiciled people in the forum, or Corporations incorporated in the forum o Remedy Can bring any claim against defendant Claim doe not need to be specific to activities arising in the forum o See Perkins (Philippine mining company direction was continuous in OH) o Not General: See Helicopteros (purchasing goods and bank account in forum not enough)

2) Reasonableness if contacts sufficient for a form of Jurisdiction then the court must assess factors to see whether it would be reasonable to exercise such jurisdiction however, it must be extremely compelling to not exercise) Burden on the defendant burdens on corporate defendants tend to be diluted as compared to burdens on individual defendants. o See Asahi (intl defendant will have to travel overseas) The states interest what interests does the forum have in having that litigation in that state as far as protecting its citizens and corporations? The plaintiffs interest everyone would prefer to sue in their own forum. Court Efficiency interest is this forum better, more efficient, more expedient, or cheaper than any other forum? (evidence, witness, act locations) It is rare that jurisdiction in a case turns on efficiency, because it can usually be argued both ways. Interstate policy interest interest of the state enforcing its own laws. 3) Due Process - Under the 14th amendment can only bring person to court if they have proper due process. The forum may have personal jurisdiction based on contacts, but the forums courts may not have the power to bring the defendant in to trial Long Arm Statutes power given by the state to hold out of forum persons liable to the forums laws o Unlimited (General) some states allow PJ due process to the extent of what is constitutionally allowed under the 14th amendment o Limited (Enumerated ) limits states ability to exercise PJ under due process of the constitution May be limited to only certain types of actions Ex: only one long arm that only provides for tortious actions (in a breach of contract case involving out of state residents then no PJ) See Gray (water heater made by manufacturer out of state but exploded in Illinois after being sold through a middleman) May extend past what is constitutionally allowed Ex: PJ for all suits brought by resident of forum (extends past if forum resident sues a non forum resident which o contacts in forum and event arose outside of forum) Federal Court Jurisdiction o The federal court can hear any state court claim in which the federal court sits (FRCP 4k1a) So long as proper venue and subject matter o When Long Arm Statutes are not needed Impleader action (rule 14/19) - do not require that third party be brought in under a state long arm, only that they are served w/in 100 miles of the federal courthouse (FRCP 4k1b) Interpleader actions dont require state long arm (FRCP 4k1c) Federal Question claims dont require state long arm as long as parties have sufficient contacts w/ the US and those contacts do not support PJ in any state (FRCP 4k2)

Types of Personal Jurisdiction (property) In Rem power of the court to adjucate claims of all persons over property located in the forum o Requirements Property is the subject of the lawsuit Purpose of the lawsuit is to determine who owns the property (ex: quiet title suit) o If benefit from state protection of the land then ct will find minimum contacts o Note: Debt always follows the debtor (debt = property) See Harris (debt=property and followed debtor to MD from NC) Quasi In Rem recovery is limited to value of specific property in forum o Requirements Lawsuit related to the property Issue is not to determine the title (ex: foreclosure bank doesnt claim to own land but has a security interest in it) o Minimum contacts established because the property, which benefits from state protection, is connected to the merits of the suit Attachment - property is unrelated to lawsuit, only reason property is being attached is to supply a basis for jurisdiction. o Schaffer Case Impact now requires minimum contacts (property itself is no longer sufficient in itself as minimum contacts, it must be related to the claim like quasi in rem) Attacking Personal Jurisdiction Direct Attack going to the forum to object to Personal Jurisdiction o If out of state and object to PJ In fed court use Rule 12b file PJ in conjunction with other pretrial defenses w/o waiving right to PJ by being in state In State Ct - file a special appearance where you go to forum being sued in to challenge/object to PJ (if no filing then consent to PJ by being in state) If raise anyother defense in special appearance (other than PJ objection) then you waive right to object PJ See Ins. Corp of Ireland (came to challenge PJ but consent by raising other defenses) Collateral Attack -abstaining from participating/responding to the original complaint under the belief that the form the suit is in does not have proper personal jurisdiction o A default judgment is entered against the abstainer and then plaintiff must go to forum that has defendants property and seek that forum to recognize the original ruling o Original ruling must be assessed by new forum for Personal jurisdiction If they find no PJ then cannot collect in forum If they find PJ then must honor the original judgment allowing the plaintiff to collect in forum o Problem: cannot reargue the merits of suit in new forum, just whether there was PJ

SUBJECT MATTER JURISDICTION

Types of Subject Matter Jurisdiction Federal Question Diversity Supplemental Federal Question Jurisdiction (1331) Federal Ingredient Test (Osborn Case) o Only need some kind of Federal Ingredient in test o Quickly replaced broad application Mottley Test o Ct examines the well pleaded complaint, not the actual complaint Constitution must be basis for suit Affirmative defenses of constitutionality is not valid See Mottley (complaint pleaded w/ fed issues but the case boils down to a brech of contract claim which is a state issue) o Federal issue defenses does not give rise to subject matter jurisdiction for state law claims o Federal Counterclaims do not give rise to subject matter jurisdiction T.B. Harms Test (MODERN TEST USED) o Arising Under requirement subject matter jurisdiction determined by whose law creates the plaintiffs cause of action Federal Law must create the issue brought forth Note: Fed law created property, but property is state law issue = no subject matter See Mottley (breach of contract based on railroad tickets did not arise under fed question) See T.B. Harms (copyright is fed issue, but contract dispute on songs was state issue) o Exceptions: If Fed Ct examine cases not arising under must meet 2 requirements substaintial federal issues - When state law turns to fed law for interpretation Feds have strong interest in hearing case Dont disrupt traditional notion of Fed and State Ct powers See Grables (state law quiet title but rests on IRS issue = fed) See Smith (sought injunction to stop Trust from investing in Fed Bank bonds because company charter limited investments. Claimed bank bonds at issue were unconstitutional. Ct allowed saying case turned on Fed Q of constitutionality of bonds)

Diversity Jurisdiction (1332) General Requirements o Complete diversity within all parties of the suit (strawbridge case) citizenship is determined at the time of the complaint filig Cant change domicile after complaint to try and defeat diversity Can move before complaint and after act and it changes Ex: If defs =same domicile then no diversity If def and plaintif = same domicile then no diversity o Amount in Controversy met (over 75K) Test determining amount (see St Paul Mercury case) Sum claim by plaintiff controls if the claim is made in good faith Must be legally certain claim is less than threshold before dismiss In trade secret or misappropriation claims the damages measured by plaintiff losses or profits unjustly received If punitive damages allowed under controlling law then that amount factors in to the threshold If seeking injunction, then value assessed by past losses and/or potential harm

Determining Diversity o Persons - only can have 1 citizenship Domicile Test (must meet both) Reside Intent to remain indefinitely Once you establish domicle you keep it until you make a new one See Mas (lady domiciled in Miss. but had no intent to retun = still domiciled in Miss. until she changes it) o Corporations - Can have multiple citizenships Test (either or) Where incorporated Principle place of business (only can have 1) Nerve Center Test location of corporate decision making and overall control Corporate Activities Test location of corporations production or service of activities See Hertz Corp (complete diversity because Hertz not a CA citizen under Nerve test/1332) o Unincorporated Associations (unions, charitable orgs, partnerships, ect) Citizenship = individual members domicile If 3 members domiciled in 3 separate states = assn has 3 citizenships o Aliens Citizenship of alien in a foreign country must be established If admitted into US as permanent resident then the state they are domiciled in (1332a) o Representation (executor, stand-in for children, ect) Not a factor in diversity Amount in Controversy o 75K minimum required - to assess it is assumed that the plaintiffs claim is in good faith when meeting the amount in controversy threshold of 75K it must be proved with a legal certainty by the judge that the amount in controversy will not be met plaintiff is favored in assessment - if likely he will get less than 75K but there is a possibility he will get above, judge will still allow see A.F.A Tours (suggestion of future loss in trade secret breach = include in threshold amount) Aggregate Claims Single plaintiff Can lump multiple claims against one defendant together to meet threshold o Claims do not need to be related Cannot aggregate claims against multiple defendants to meet threshold Multiple plaintiffs If against a single defendant only need 1 plaintiff to meet threshold o Other claims joined by Supplemental Jurisdiction or separate basis o All claims must be related w/ common interest (test = if one plaintiff fails then they should all fail) Class Action (FRCP 23) If a 1 plaintiff meets threshold and rest of plaintiffs claim from same controversy then the other claims do not need to meet threshold o I sue for 78K, so others with same claim can sue for 10K they are covered under the class action Class Action Fairness Act - Threshold of class action aggregate must be greater than $5 million (Does not include costs or interest) Injunctive Relief (2 part test) value to the plaintiff in the view of the party seeking to invoke federal jurisdiction if plaintiff brings in fed ct then plaintiff view if defendant seeks to remove to fed ct then defendant view

Supplemental Jurisdiction (1367) Allows courts to hear claims that have no independent subject matter jurisdiction (fed question or div) 3 part analysis o does court have Constitutional Article III 2 power to hear supplemental claim (is there a proper original claim that the Federal Court can hear? SJ or Div) o is there a statute that allows jurisdiction over a related claim (1367 is such a statute) o Court must use Gibbs factors to determine whether to allow these claims Types of Supplemental Jurisdiction o Non Diverse Cases (1367a) In cases not based in diversity cases which arise out of the common nucleus of fact are granted supplemental jurisdiction all claims = see Gibbs common nucleus of operative fact diversity counterclaims or diversity claims brought by third party against the plaintiff dont need to meet the amount in controversy so long as it is claim from the common nucleus can bring any separate state law claim against another defendant so long as the state claim arose out of federal anchor claim See United Mine Workers (state claims in mine workers suit did not arise under fed issue) See Finley (suit against state and utilities did not arise from fed suit against FAA crash) o Diversity Jurisdiction Limitations (1367b) in diversity cases plaintiffs cannot take advantage of supplemental jurisdiction to bring claims against various defendants plaintiff who has diversity against defendant cant bring another claim against another party if there is no diversity if a claim brought by plaintiff against a party joined or to be joined by FRCP 14, 19, 20, or 24 will destroy diversity then that claim/person cannot be heard plaintiff can still assert FRCP 13 claims if a claim against him is entered defendant can still assert claims/implead people even if not completely diverse additional claims dont need to meet amount in controversy requirement in diversity suits o if originally a diversity suit and D asserts a counterclaim for less than 75K its still allowed because claim came from common nucleus new plaintiffs joining can sue under diversity (no amount in controversy required as long as arise from common nucleus) in combination with exxon Sup Ct decision can have supplemental jurisdiction for plaintiffs that dont meet the amount in controversy, so long as a related plaintiff in the case in controversy meets the threshold of 75K plaintiff sues defendant and meets threshold another plaintiff can join if same case even if dont meet amount in controversy See Exxon Mobile Corp (supplemental jurisdiction for claimants that dont meet threshold at least one claimant met threshold)

Removal Jurisdiction (1441) Cannot raise venue objection when you remove to a federal court (1391 does not apply) Requirements o Only the defendant can move an action to federal court o Only the claim is relevant to removal (not defenses) o Only can be removed if the fed ct would have had jurisdiction to begin with o Must remove w/in 30 days of complaint (1446b) if original claim is state law based an then amended to include fed issue then the defendant must file to remove in 30 days after amendment o See Borough of West Mifflin (allowed to remove w/ state claims because there was a fed anchor claim regarding civil rights violations when men kicked out of mall) Types of Removal o Actions by Fed officers o Civil Rights Cases o Interstate Class Actions If over 100 members and claim greater than 5million can be brought in fed court if minimum diversity between plaintiff class and anyone of the defendants Case can be removed if any defendant wants to remove it Even if one or more defendants citizen of the forum state they can still remove Minimum diversity so long as plaintiff representative citizenship is diff than one defendant Removal Restrictions o Actions against railroads under the Federal Employers Liability Act 1445 o If multiple defendants, under a single wrong, where some are diverse and the others not, the diverse parties cannot remove to federal court for separate cases under 1443(c) (American fire v. finn) p356 o Cannot remove in diversity cases if any defendant is a citizen of the forum 1441b FL plaintiff sues a NY def and CA def in NY state ct Cant remove to fed ct because 1 defendant is citizen of the forum (NY citizen and NY ct) o Removal only possible when all defendants join/agree for removal Works in both fed question and diversity o Can only remove to the fed dist where the state ct sits If bring suit in CA state ct, can only remove to the Fed ct in the county the st ct sits Remanding a Case from Fed back to State o Requirements If diversity is destroyed by a amending a party after removal in federal court (1447e) if fed question claim is separate and independent from other state issue claims (1441c) only can remand the state law claims under 1367 If erroneously removed to Fed Ct to begin with, must remand back down (1447c) Cases remanded back down under this condition cannot be reviewed on appeal (1447d) Exception: civil rights claims can have appeal

VENUE
Determines where the proper districts a case can be heard in (can have PJ and SJ in state venue further limits the courts to certain districts within the state) Privilege which can be waived by defendant Residency not defined Some Courts: residency = domicile (only one residency) Some Courts: residency can be multiple (congress could have limited use by domicile) Corporations - Reside wherever they are subject to personal jurisdiction (minimum contacts w/in judicial district) o Still need to apply diversity/fed question analysis below o Can have multiple residencies When Venue is Proper (Different Situations) 1391 Diversity Only Cases (just needs to meet one) o Any district where defendant resides if all defendants reside in the same state If D1 resides in western dist. of NY and D2 resides in east dist of NY can only ring in either western or eastern, not any other district If all defendants reside in NY and one also resides in CA then it could be brought in CA (if recognize multiple residency) o Where substantial parts of events giving rise to the claim See Bates (contacts intentional or not does not matter) o A judicial district wherever any defendant is subject to personal jurisdiction (only if no other venue to bring case) No other venue hypo = defendants have diff residency and event occurred out of US Federal Question Cases (just needs to meet one) o Any district where defendant resides if all defendants reside in the same state If D1 resides in western dist. of NY and D2 resides in east dist of NY can only ring in either western or eastern, not any other district If all defendants live in NY and one also lives in CA then it could be brought in CA o Where substantial parts of events giving rise to the claim o Where the defendant may be found (only if no other venue to bring case) No other venue hypo = defendants have diff residency and event occurred out of US Aliens - can be sued in any federal district Limiting Venue through Claims Transitory - ______________ Local claims concerning real property (land), not personal property o Suits to gain possession of land, foreclose a mortgage, quiet title, concerning damage/injury to land itself Local Action Rule - If lawsuit described as local then only venue is the court where land is located o Original reason wanted jury familiar with land that is in dispute o Land titles in local county offices o See Reasor-Hill Corp __________

Changing Venue (Transfer) Either party can move to transfer to another proper federal venue o Arises from proper or improper filings Proper filing o Permanent (1404) case filed in proper venue but motion to transfer t Requirements Convenient to Parties If defendant seeks to change, Court puts a lot of weight on plaintiffs original choice Substaintially more convienent o Does not need to go to most convenient place In the Interest of Justice o Pretrial Only (1407) transfer of multiple cases to one venue Decision made by the MDL panel Transferred cases must meet 3 requirements Common question of fact between cases Convenience of parties Promote justice and court efficiencies Improper Filing (1406) transfer from an inmprover venue to a proper one o allows for plaintiff to circumvent statute of limitations If dismissed for improper and refiles (but statute of limitations expires) then case will be barred Which Law when transferred o Federal Issues the law of the federal district where it was transferred from Ex transfer from NY to CA CA judge applies NY choice of law rules to determine which law applies o State Issues in Fed Ct state where fed ct sits applies If venue changes, the original state law still applies o Multiple States in Fed Ct apply choice of law rule to determine which state law o See Ferens (Miss. law applied in PA courts - statute expired in PA but not in Miss. for product liability) Forum Non Conveniens (Dismissing Venue) Ability to dismiss a case because there is a more appropriate forum that provides adequate relief o See Piper (more convenient in Scotland) o If alternative forum less favorable to plaintiff - not a valid factor unless adequate relief is not possible Favor plaintiffs choice of forum must show strong factors for defendant in order to dismiss o If plaintiff is foreign then less weight is given to original forum choice Do not need to address other thresholds (personal jurisdiction, venue, diversity) to dismiss Requirements (Gulf Oil 2 factor test ) o Private factors (more weight) Access to proof Availability of compulsory service (witness availability) View of premise (evidence location) Other costs, delay, efficiency o Public Factors (less weight) Court congestion Local interest in resolving local controversies Burden on jury duty on local citizens Diversity cases fed ct familiarity w/ relevant state law Conflict of law problems See Piper (more convenient court w/ adequate remedy in Scotland evidence, witness, ect in UK)

JOINDER
Steps (3 part process) o Can they be properly joined? (FRCP 14, 19, 20, 24) o What claims can be asserted once properly joined? (FRCP 13, 14, 18) o Can the claims be heard? (Subject Matter 1331/1332 or Supplemental Jurisdiction 1367)

Joining Parties in a Suit Parties (20), Impleader (14), Necessary/Indespensable (19), Intervention (24) Parties (FRCP 20) Whos allowed to sue o Multiple plaintiffs suing together o Single plaintiff against multiple defendant o Note: not required to bring/join suits Requirements of the suit o Must arise out of the same transaction/occurrence o Must all share question of law/fact See M.K. (parties allowed to join because discrimination by CIA arose under same occurrence) See Ryder(married couple not allowed to join claims because SC law; dissent said same occurrence) Impleader/Derivative Suit (FRCP 14a) Requirements o Arise out of same transaction/occurrence o Suit does not direct whole of liability to 3rd party just assign contribution o Implead party w/in 10 days after answering complaint (FRCP 14a1) o Claim follows all pleading requirements o Must have basis for subject matter or supplemental jurisdiction Liability will depend on the outcome of the main claim o If P loses against D, then D cant have claim against 3rd Party Does not destroy DIVERSITY of original case o If original suit is diversity and D implead 3rd Party w/ same citizenship as P case can go on so long as there is diversity(plus amount in controversy) or supplemental Jurisdiction (1367) between D and 3rd party Does not destroy VENUE 3rd Party Possible actions once brought in to suit o allowed response/answer to claim (FRCP 12) o file counterclaim against impleader (FRCP14a2b) o assert any other claim arising under same transaction/occurrence (FRCP 14a2d and 14a3) o implead further parties (FRCP14a5) 3rd party liability to suit - can only be sued by original plaintiff for claim arising out of same transaction/occurrence P cant bring a separately based claim against See Jeub (third party sold bad ham to supermarket and supermarket sued) See Too Inc. (Khols allowed to indemnity contractors that may have infringed) o

Necessary/Indispensable Parties (FRCP 19) Certain people not sued by the plaintiff may be ordered to join in the suit if they are necessary or indispensable Necessary Parties - to join person if feasible (FRCP 19a) o Requirements (only meet 1) if the court cannot accord complete relief among existing parties (FRCP 19a1a) ex: make a contract with 2 people and sue to 1 person to rescind contract 2nd person should be joined to exercise complete relief persons interest in the subject matter of the action will be impaired if person does not participate in the litigation (FRCP 19a1Bi) ex: beneficiary of lease (1 of 10) sues estate saying should have gotten more other 9 can join, if feasible, because their shares will be affected continuing the case with out person might leave one of the existing parties exposed to multiple or inconsistent obligation (FRCP 19a1Bii) ex: beneficiary (from above example) gets an order w/o other parties increasing money then other beneficiaries each bring separate suits which the court gives them more money now conflicting money allocation (inconsistent judgments) Indispensable Parties (FRCP 19b) o persons who should be joined by FRCP 19a but cannot be because of jurisdictional conflicts o 3 options for judge allow (if jurisdiction permits) dismiss (determine that this party needs to be in suit) continue (craft protective provisions for judgment around the parties in suit and not person that should be joined) o Evaluating whether to dismiss/continue Extent of prejudice to person or parties if judgment entered w/o person in case Extent which protect provisions avoid/lessen prejudice to person if case continues w/o person Adequacy of judgment entered w/o person Adequate remedy for plaintiff in another court (if dismiss case because person cant join) Intervention (FRCP 24) People not sued by the plaintiff may intervene to one side or another in the case o People take intiative, whereas FRCP 19 requires them to join (brought in) Right to Intervention (FRCP 24a) o Allowed if a statute allows/requires these interveners to join o Must be made in a timely manner o Requirements (meet all 3) Claim an interest to property or tansaction that is the subject matter of the action Interest impaired if person not allowed to participate Absentee interest is not represented by parties already in action o If not filed timely or a party already represents interest then court can deny Intervener must bring something new Permissive Intervention (FRCP 24b) o may allow intervention even if dont meet any FRCP 24a requirements o Requirement Any person who has a claim/defense that shares w/ the main action a common question of law/fact o Limitations Timely request to intervene Court must evaluate whether intervention will create delay or prejudice (reopening discovery, not requested earlier in trial, ect) Court has discretion to not allow intervention (FRCP 24b1) Intervention only for limited purposes/participation Court can outline guidelines of what intervener may plead/claim/bring in to the suit

Possible Actions once properly Joined Counterclaims (FRCP 13a/b) o Compulsory - Must arise out of the same transaction/occurrence of the original claim Claim preclusion rule - Must assert this claim if defendant has it (if not waive right to sue) Cannot bring in a party that is not subject to jurisdiction by the court o Permissive claims completely unrelated to the original claim Court may allow it (but may dismiss under FRCP 42b) o See Heyward (contractor CC against subcontractor arose from same transaction = payment and insurance policy for both jobs were covered as one policy and one check occurrence = dock work) Cross-Claims (FRCP 13g) o Asserted against a co-party for a claim arising out of the same transaction/occurrence of the original claim Optional suit (not mandatory) NOTE: Working in tandem w/ FRCP 13a - But if cross-claim asserted, the opposing party being sued must assert any Compulsory Counterclaims because it is mandatory under FRCP 13a 13H Claim (Joining a Third Party from counter/cross-claims) o if as defendant assert cross or counterclaim defendant is able to join a third party pursuant to Rules 19 and 20 Impleader/Derivative suits (FRCP 14a) o 3rd party impleading, counterclaims, claims, and other suits o see above and FRCP 14a for allowable suits once party is implead Joining Additional Claims (FRCP 18) o Once party sues under a valid claim (from the same transaction/occurrence or original claim) then may assert any additional unrelated claims he has against the opposing party No common transaction/occurrence needed Still need subject matter in suit See Lasa (allowed to join/implead parties in construction suit and assert cross/counterclaims because all arose from a construction job concerning marble installation)

Joinder Type Compulsory/Permissive Counterclaim Cross-claim 13h Claim Third Party Suit Derivative Suit

FRCP

Suit (P v D) or (D v P) D1 v D2 D1 v X D1 v D3 D3 v. P P v D3

13(a) or 13(b) 13(g) 13(h) 14 14(a)(2)(d) 14(a)(3)

Denying Joinder Judge can consolidate or sever any counterclaim/cross-claim/third party claim (Rule 42) Claim Preclusion rule - any time any party chooses to bring a claim they are required to pursue all available legal theories and remedies that can be pursued under that occurrence/transaction (FRCP 13g) o if they dont bring it, then they are precluded from later bringing any other issue o Exception: claim assertion not required when co-parties suing each other (defendant v. defendant) But once a defendant asserts against another defendant, then Claim Preclusion Rule applies