Professional Documents
Culture Documents
I. In Personam [ ] A. Domicile (Milliken) [ ] B. Presence/tag jurisdiction (Burnham) [ ] C. Consent (Pennoyer, Insurance Corp of Ireland, Carnival Cruise) [ ] D. DP (14AM for SC, 5AM for FC)/Long arm statute (Hess, Gray)/piggy backing if in FC General Jurisdiction [ ] 1. Contacts substantial, continuous and systematic? (Benguet Mining) [ ] 2. At home test (Helicopteros, Goodyear) Specific Jurisdiction: Min Contacts Reasonableness of PJ [ ] 1. Minimum contacts that wouldn't offend fair play/substantial justice (Intl Shoe) [ ] 2. D must purposefully avail himself to benefits and protections of forum states laws (Burger King) [ ] 3. Single contact may justify jx depending on nature and quality of contact (McGee, BK) [ ] 4. Could they reasonably foresee being haled into court there? (WWV) [ ] 5. D-oriented. Conduct of D not P (Hustler Magazine) [ ] 6. Was the contact the unilateral action of 3rd party? (Hanson, WWV) [ ] 7. Effects test: effects of intentional act are felt in forum state (Calder v. Kulko) [ ] 8. Are the contacts stale? (Pebble Beach) [ ] 9. Purposeful directed stream of commerce (additional activities; OConnor) or stream of commerce w/ foreseeability (Brennan)? (Asahi and McIntyre) [ ] 10. Reasonableness of PJ: comports w/ notions of fair play and substantial justice [ ] a. Asahi 5 factor test: (1) Forum states interests; (2) Ps interests of convenient and effective relief; (3) burden on D; (4) Efficient resolution; (5) Substantive interest of several states [ ] 11. Technological contacts: [ ] a. Is website active, passive or interactive? (Zippo, Pebble Beach) [ ] b. Internet contacts treated same as physical contacts Jurisdiction Based on Property [ ] 1. Always has in rem jurisdiction to decide ownership (Balk situs of debt) [ ] 2. QIR 1 (dispute about interest in property) & QIR 2 (property acts as foothold for some other dispute [ ] a. Property alone cant circumvent PJ, attachment only proper if PJ exists. (Shaffer situs of stocks) [ ] b. It can be used to bring a LAS to constitutional max
NOTICE AND OPPORTUNITY TO BE HEARD II. Notice [ ] A. DP requirements: notice to provide opportunity to be heard [ ] B. FRCP 4 [ ] C. Is the service reasonably calculated under the circumstances to give notice of suit? (Mullane) [ ] 1. Aware of possible non-receipt and reasonable alternative method taken? (Flower, Lindsay). Heroic efforts not required (Dusenberry, Mullane) [ ] 2. Convey required information (Aguchak) [ ] 3. Conform w/ state statutes? (MD Fireman) III. Opportunity to Heard [ ] A. Depravation of property w/o opportunity to be heard violates DP (Fuentes) [ ] B. Matthews test (Doehr) [ ] 1. Extent of Ds affected interests (Chattel v. real property) [ ] 2. Risk of erroneous or arbitrary deprivation/sufficient safeguards (Mitchell v. Di Chem) [ ] a. Post-seizure hearing availability (Immediate v. none) [ ] b. Bond requirement (Doesnt resolve issue by itself) [ ] c. Simple case v fact specific (Debt owed v. assault in Doehr) [ ] d. Documentary proof required. (Affidavit?) [ ] e. Judge v clerk [ ] 3. Public and Ps interest in prejudgment seizure? (Need for prompt action)
VII. Supplemental Jurisdiction I. 28 USC 1367 (same case or controversy) [ ] A. Presumption that supplemental jx granted if state claim and fed claim arise from common nucleus of operative facts (Gibbs) [ ] B. Exceptions: [ ] 1. Diversity destroying parties not allowed except Rule 20 & 23 Ps (Kroger, 1367b) [ ] 2. State claim substantially predominates federal claim or are novel and complex (1367c) [ ] 3. Federal claims dismissed (1367c) VIII. Removal Jurisdiction: I. FC must have original jurisdiction at time fed jx invoked (Syngenta) II. 1441, 1446, 1447, 1453 [ ] A. Removal to district action is pending; Hometown D cant remove unless arising under SMJ; All Ds must consent [ ] B. Removal filed w/in 30 days; 1 yr after complaint if diversity SMJ [ ] C. Remand to SC not appealable [ ] D. Class action removal doesnt have time limit, home-town D exception, require all Ds to consent IX. Challenging SMJ [ ] A. Can challenge any time before J and appeal after J [ ] 1. If appealed determine if certain requirements are merely elements of the claim (Lacks) [ ] 2. SMJ cant be waived. Lack of SMJ means J is void (Capron) [ ] B. Court can decide SMJ and PJ in any order it pleases (Ruhgras)
PLEADING
XVI. I. [ [ [ Complaint FRCP 8 ] A. Notice pleading: Contain a short and plain statement of the claim and give notice? (Dioguardi) ] B. Is there no set of facts under which P could recover? (Conley) ] C. Plausibility standard: sufficient facts to state a claim to relief that is plausible on its face. (Twombly) [ ] 1. Weed out allegations that are, by themselves, conclusory in the complaint [ ] 2. Look at remaining allegations to see if plausibility standard is met (Iqbal) [ ] D. Uncomplicated cases easily meet the plausibility standard (Erickson) [ ] E. Information asymmetry concerns [ ] F. Rule 9B requires higher standard for claims of fraud or mistake. [ ] 1. Higher requirement merged w/ Rule 8. Allege fraudulent activity w/ particularity (Denny) XVII. 12(b)(6) Pre-answer Motion Failure to state a claim upon which relief can be granted [ ] A. Assume allegations are true and in best light for P. Legitimate & illegitimate claims together are fine. (American Nurse) XVIII. Counter Claims (FRCP 13) [ ] A. Compulsory v permissive counterclaims. XVIII. Answer (FRCP 8) [ ] A. Admit or deny allegations. Denying knowledge can result in an admission of allegations. [ ] B. Affirmative defenses. Lower standard then complaint XIX. Amending the Pleadings (FRCP 15) [ ] A. 21 day safe-harbor time. Court may grant if justice so requires [ ] B. Relation back: Amendment relates back to date of original pleading if [ ] 1. SOL allows relation back; [ ] 2. Arising out of same transaction in the original pleading; or [ ] 3. Changes party. If the amended party (1) received sufficient notice; and (2) should have known action would have been brought against him except for mistake by P [ ] C. Relation back turns on Ds knowledge not Ps (Krupski) XX. Deter frivolous proceedings (FRCP 11) [ ] A. Attorney is certifying filed pleading is: (1) not for improper purposes; (2) factual contentions have evidentiary support or good faith belief evidence will be discovered in discovery [ ] B. Sanctions may be given for violating only after the 21-day safe-harbor period [ ] C. Only a reasonable inquiry into the validity of factual allegations (Yonkers Racing)
DISCOVERY/AWP
XXI. [ ] A. [ ] B. [ ] C. Discovery FRCP 16: pretrial conferences FRCP 26: discovery. Modes: FRCP 34(documents), 30(depositions), 33 (interrogatories)
XXII. Privilege and Work Product [ ] A. AWP: [ ] 1. Is it made in contemplation of litigation? Hickman [ ] 2. Is there a substantial need/undue hardship. [ ] B. ACP [ ] 1. Not just control group Upjohn [ ] 2. In connection w giving legal advice [ ] 3. Did they waive ACP by disclosure? [ ] a. Voluntary to disclosure to third party [ ] b. FRE 502 protects from inadvertent waivers
SUMMARY JUDGMENT
XXIII. Summary Judgment (FRCP 56) [ ] A. No genuine dispute as to any material fact [ ] B. If movant doesnt bear burden of proof at trial: [ ] 1. Affirmatively negate non-movants essential claims or facts (Adickes) [ ] a. Only available method if movant bears burden of proof at trial [ ] 2. Show a lack of sufficient evidence to prove non-movants essential claims or facts? (Celotex) [ ] a. Movant only doesnt need to use affidavits to support. Just a showing of holes [ ] b. Non-movant can submit evidence that is reducible to admissible at trial Evidentiary standard: [ ] 1. Was the standard used the same as would be necessary at trial? (Anderson) [ ] 2. Evidence must be viewed in light most favorable to non-movant but inferences must be: [ ] a. Plausible? (Matshushita) [ ] b. Reasonable considering information on record? (Scott v Harris)
PRECLUSION
XXV. Res Judicata/Claim Preclusion. [ ] A. Valid and final judgment on the merits [ ] B. Related to the same claim/transactional event (Matthews v New York Racing) [ ] C. Is it a claim could have been litigated in previous action? [ ] D. Does it involve the same parties/those in privity with them? Mutuality (Matthews) [ ] E. Should the person have appealed the previous judgment but didn't? (Moittie) [ ] F. If yes to all: claim preclusion exists. [ ] G. If borderline case, would finding RJ support policies of efficiency and repose? [ ] H. Note: cross check for CE. XXVI. Collateral Estoppel/Issue Preclusion [ ] A. Was there a valid and final judgment on the merits? [ ] B. Was the issue actually litigated? (Cromwell v County of Sac) [ ] C. Was the issue necessary to the judgment? Counter-factual (Rios v Davis) XXVII. Mutuality [ ] A. DNCE: D2 using CE defensively against P1? (Blonder-Tongue) [ ] B. ONCE: P2 using CE offensively against D1? (Parklane) [ ] 1. Use promotes judicial efficiency? Could P have easily joined earlier suit? [ ] 2. Would it be unfair to the defendant? [ ] a. Inconsistent w/ prior Js? [ ] b. Incentives to litigate issue in prior action? [ ] c. Current action afford more procedural opportunities? [ ] C. Binding non-parties. D1 defensively using CE against P2? [ ] 1. Burden on parties to join strangers (Martin) [ ] 2. Are any of the 6 exceptions to non-party preclusion present? (Tyler) [ ] a. (1) Agrees to be bound; (2) Privity; (3) Interests represented adequately; (4) Asserted control over prior action; (5) Proxy; (6) Statutory exceptions [ ] b. Adequate representation requires: (a) Interests to be aligned; and (b) court protected interests of nonparty or party knew she was rep; and (c) nonparty had notice of rep XXVIII. Intersystem Preclusion [ ] A. Federal Common Law: Preclusive effect of FC sitting in div should be the same as SC in forum. (Semtec)