Civil Procedure Outline

Contents
Personal Jurisdiction ............................................................................................................................................... 1 Subject Matter Jurisdiction ..................................................................................................................................... 4 Venue .................................................................................................................................................................... 14 Erie Doctrine ......................................................................................................................................................... 22 Joinder ................................................................................................................................................................... 23 Discovery .............................................................................................................................................................. 27 Pre-Trial adjudication ........................................................................................................................................... 29 Trial ....................................................................................................................................................................... 29 Appeal ................................................................................................................................................................... 31 Claim and Issue Preclusion ................................................................................................................................... 31

Personal Jurisdiction
o Gives the court power to act upon person or property through Minimum contacts with the forum State, and Long-Arm Statutes o Traditional forms to obtain of Personal Jurisdiction w/o Int'l S. Presence, Consent, Waiver, Domicile Domicile is when the court has jurisdiction over person within the forum State, even if temporarily not within the State if he has a (a) residence and (b) Intent to indefinitely remain Consent can also be in advance like contracting to litigate within a particular state (Carnival). Presence is voluntary appearance in court and also being physically present in the forum state through domicile or while being served. The defendant can also waive it or make a 12(b)(2) claim allowing you to avoid International Shoe o Long Arm Statute and Statutory Analysis Don't go into the merits of the claim For example, defective product liability statute where facts say there is no defective product. Assume plaintiff allegations are true and evaluate anyway. Non-Resident motorist statutes Provides that the non-resident gives consent to jurisdiction and to the appointment of a state official as her agent for service of process by operating a motor vehicle in the forum state and that Plaintiff must provide a copy of the service of process be sent to the defendants resident. Page 1 of 33

Personal Jurisdiction Hess v. Pawloski (Mass. Car wreck case) expands Pennoyer and gives us nonresident motorist act that allows specific jurisdiction o Expands and includes implied consent just by using the roads Once "minimum contacts" are established, the State must still have legislation authorizing its court to accept jurisdiction Jurisdiction may be based on citizenship, property ownership, or tortious acts in forum State. Unlimited - some states like CA, and RI give all constitutional bases of jurisdiction Limited - some states specify in detail when court may accept jurisdiction Jurisdiction who commits a tort in the forum state. (Gray v. American Radiator). o Ex. Created a widget in State A, sold it in State B and it blows up in State B. Some courts say the tort is in State B where the tort occurred. Some courts say the tort is in State A because of where it is manufactured. o Three Types of Jurisdiction In Personam Forum State has jurisdiction over the defendants person Judgment in forum State is entitled to full faith and credit in other States In Rem When a Court has power over Defendants property or status o Ex. Action to quiet title to property; dissolution of marriage Quasi in Rem Power of Court to attach or garnish property to gain jurisdiction over Defendant (Shaffer v. Heitner requires this to be tested under minimum contacts standard of International Shoe) Judgment affects only the property seized o Justices have opined that attacking ones property in an effort to exercise jurisdiction over the defendant himself works by either notifying through attachment of the property, because he should be aware of its seizure, or divesting him of a property he has no interest in protecting and thus the court has not divested him of any right. o Traditional Test Pennoyer v. Neff Presence in the forum state and o Burnham v. Superior Court: Temporary presence in State unrelated to activity in lawsuit falls within province of test MOST IMPORTANT: The defendant must be served with notice of lawsuit against him/her within the forum state o Even if the Defendant is only within the forum State a few hours, he/she may be served with process there o Service on a plane flying over forum State is valid. o Modern Test International Shoe v. Washington Finding minimum contact does the suit does not offend traditional notions of fair play and substantial justice o Two prongs Minimum Contact and Fairness Constitutional Interpretations (Contact)

Personal Jurisdiction o Activities must be systemic and continuous (IS & Helicopteros Nationales de Columbia, S.A. v. Hall) o Activities must be purposely directed towards forum State (Asahi Metal Industry Co. v. Superior Court) o Defendant must purposely avail himself of privileges of the forum State (Hanson v. Denkla) The defendant also must know or reasonably anticipate that her activities in the forum render it forseeable that she may be haled in the court there.(World-Wide Volkdwagen v. Woodsen) o There must be a connection between litigation, Defendant and forum State Mere presence of property is not enough unless the Defendant had necessary minimum contacts under Shaeffer v. Heitner o Unilateral act of a third party insufficient (WWVW & McGee) Fairness Factors o 1. The burden on the defendant, which the Court calls a primary concern Very high standard to meet o 2. The forum states interest I adjudicating the dispute, for which the Court properly cites McGee CA wanted to protect their citizens from TX insurance co. who attempted to avoid judgment rendered in CA. o 3. The plaintiffs interest in obtaining convenient and effective relief Kulko v. Superior NY couple divorced in state. Wife moved to CA. Kids wanted to live with wife and father purchased one way ticket for one of the children and mother bought ticket for the other. Mother sued in CA for child support and the court ruled that the fathers action of sending a child to CA did not constitute a sufficient contact to support jurisdiction and that the father had not purposefully availed himself of the benefits and protections of California. o 4. the interstate judicial systems interest in obtaining the most efficient resolution of controversies; and o 5. the shared interest of the several States in furthering fundamental substantive social policies. Kulko v. Superior The Court concluded that permitting suit against the father in California would discourage parents from accommodating the interest of family harmony. o Corporations and Jurisdiction Resident Co.s Any action can be brought against a corporation incorporated in the forum State. For in personam jurisdiction the corporation must be a resident, have his principal place of business in the state and his actions must be compared with Federal diversity purposes (amount in question must be greater than 75k and the two parties must be of different states). Foreign Co.s Minimum Contacts of International Shoe with its constitutional limitation Suits based on contractual limitations (Burger King Corp. v. Rudzewicz o Procedural Due Process

Personal Jurisdiction 14 Amendment requires that a government not deprive person of life, liberty, or property without notice of action against him and an opportunity to be heard Notice In hand best method and most secure Substituted delivery to a person of suitable age and discretion residing at the dwelling place of D, or to Ds agent (FRCP 4(c)(2)) Service by Mail Posted to Door Notice by publication Service upon infants and incompetents governed by FRCP 4(g) Service on Corporations delivering copy of summons and complaint to an officer or agent with actual/apparent authority. o Collateral Attack Is when a new lawsuit is brought forward to stake a claim that a prior judgment was void for lack of PJ. PJ may only be challenged once either in forum state (appeal) or Ds home state which is the collateral attack. o Default judgments are automatic if a person does not show up to court in FS. o Defenses Must raise objections to PJ before trial. Adverse decisions can be appealed Special Appearance Defendant appears in the court of the FS, expressly to make a jurisdictional objection without automatically subjecting himself to PJ. Some courts have replaced it with 12(b)(2) which is a Motion to Dismiss for Lack of Personal Jurisdiction over Parties
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Subject Matter Jurisdiction

o What is the difference between Subject Matter Jurisdiction and Personal Jurisdiction Personal jurisdiction is a geographic question addressing whether the plaintiff may sue a defendant in a particular state (or states). Power over the parties. Subject matter jurisdiction concerns what court (in a state having personal jurisdiction) will hear the case whether the case will be heard in a federal court or in a state court. Power over the case and the claims asserted in it o Article III US Constitution "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects." o Judicial Power under Article III (sec 2) 1. Cases arising under the Constitution, federal statutes, and treaties; 2. Cases affecting Ambassadors, other public Ministers and Consuls; 3. Cases of admiralty and maritime Jurisdiction; 4. Controversies in which the United States is a party;

Subject Matter Jurisdiction 5. Controversies between two or more states; 6. Controversies between a State and Citizens of another State; 7. Controversies between Citizens of different States; 8. Controversies between Citizens of the same State claiming Lands under Grants of different States; and 9. Controversies between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. o Constitution authorizes federal jurisdiction in these types of cases o Congress must confer authority on the lower federal courts in order for them to hear cases. o Important Because 1. As an attorney representing a client interested in initiating a lawsuit, you must be able to determine whether your case may (or must) be brought in federal court. 2. If you represent a defendant sued in federal court, you will need to know whether the case was properly brought there. 3. If you represent a defendant in a state court, you can determine whether the case may be removed to federal court. 28 U.S.C. 1331 Federal question The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C 1332 Diversity Jurisdiction (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a State or of different States.

(b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.

(c) For the purposes of this section and section 1441 of this title (1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and

Subject Matter Jurisdiction of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business; and (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.

(e) The word States, as used in this section, includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico.

For the purposes of this section, section 1335, and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.

o Diversity of Citizenship Requirement Diversity of citizenship - Requirement form 1332 that the dispute be between "citizens of different states." Mas v Perry o Complete Diversity - the general rule that requires no party on one side may be a citizen of the same State as any part on the other side. Determining Citizenship - A natural person must be both a citizen of the United States and a domiciliary of that state. Controlled by federal law, not by any one state. Must be present at time the complaint is filed. Unaffected by subsequent changes in the citizenship of the parties Burden is upon the party invoking federal jurisdiction; and if the diversity jurisdiction is property challenged, that party also bears the burden of proof. o Individuals- determined by domicile. Domicile- the place of "his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom." To change domicile: o Taking up residence in a different domicile with o The intention to remain there. A person cannot have multiple domiciles, even though they can have multiple residences. o Corporations- "A corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.

Subject Matter Jurisdiction A corporation can be a citizen of two states, but can only be domiciled in one. Tests: How the principal place of business is determined for a corporation. o Nerve Center Test- locus of corporate decisionmaking authority and overall control. o Corporate Activities- Location of a corporation's production or service activities. o Total Activity- A hybrid of the previous two approaches. o Unincorporated Associations o Legal representatives o Class Actions Complete Diversity Requirement Complete Diversity - the general rule that requires no party on one side may be a citizen of the same State as any part on the other side. o Where citizens of the same state appear on both sides of a dispute, diversity jurisdiction is unavailable. Minimal Diversity - Article III permits the extension of federal jurisdiction to cases where parties form the same state are on both sides of the dispute so long as there are adverse parties who are not co-citizens ( 28 USC 1332 requires Complete Diversity.) o Often used through specific statutes Time of Filing Rule- whether the diversity of citizenship requirement is satisfied is a matter that is determined at the time the complaint is filed. o Subsequent changes in citizenship by the parties that result in the destruction of complete diversity do not undermine diversity jurisdiction o Courts can exercise jurisdiction over a dispute that initially lacked complete diversity if the jurisdictional defect is subsequently cured by the dismissal of the party that destroyed complete diversity. o Focuses on the time of filing!! Collusive Joinder o Efforts to manipulate the citizenship of the parties in an effort to create (not destroy) diversity by improperly or collusively joining such parties in the action is prohibited. Domestic Relations Exception- federal courts tend to stay away from domestic / family cases. Probate Matters Exception- Federal courts will not probate or annul a will, administer a decedent's estate or dispose of property that is in the custody of a probate court. Alienage Jurisdiction- a special class of diversity jurisdiction involving non US citizens "aliens" as litigants. Statute permits diversity jurisdiction over cases involving aliens when o 1. they are aligned against a US citizen OR o 2. they are simply additional parties to an action that already involves adversaries who are US citizens. 1332(a) Permanent Resident Alien Provision Although the language of 1332a permits the conclusion that diversity jurisdiction should exist in cases involving permanent resident aliens versus non resident aliens or permanent resident aliens of different states versus one another, the purpose of the statute and the limitations of Article III led the Saadeh court to interpret the statute as barring diversity jurisdiction in such cases.

Subject Matter Jurisdiction Permanent Resident Aliens - permanent resident aliens are treated as citizens of the state in which they reside for purposes of the diversity statute. o Saadeh v Farouki Intended only to eliminate subject matter jurisdiction of cases between a citizen and an alien living in the same state. Stateless Persons - those who are not citizens or subjects of any foreign state do not qualify for federal jurisdiction. "There is no jurisdiction over a suit between a citizen of the US and a person who is not a citizen of any country." o Amount in Controversy Requirements Amount must exceed $75,000 (28 USC 1332a) Del Vecchio v Conseco, Inc Aggregation Punitive damages o 1. Whether punitive damages are recoverable as a matter of state law o 2. Court has subject matter jurisdiction unless it is clear "beyond a legal certainty that the plaintiff would under no circumstances be entitled to recover the jurisdictional amount." REASONABLE ASSERTION. Ratio. Basic Amount-in-Controversy Requirement Requires the amount in controversy exceed $75,000 o Can apply to either parties interest o Cannot be accumulated (cannot add up damages in a class action suit) o Can include possible punitive damages o The amount must be made in good faith o Only when it appears "to a legal certainty" that the claim is really for jurisdictionally insufficient amount should a court dismiss the matter on jurisdictional grounds. Injunction Cases - How to measure injunctive relief (such as specific performance)? Courts primarily look to either the value of the relief to the plaintiff or at the cost such relief would impose on defendant. Aggregation - Is very limited Need for Diversity Jurisdiction Class Action Fairness Act Cannot piggyback "Joinder of claim Single plaintiffs may aggregate claims (related or unrelated) against a single defendant Single plaintiffs may not aggregate claims against multiple defendants (this rule does not affect joint liability claims) P (claim 1 + claim 2) v D = YES P (claim 1) v D1 + P(claim 2) v D2 = NO P (Joint Liability Claim) v D1 + D2 = YES (P1 + P2) (claim 1) v D = YES

Multiple plaintiffs may aggregate claims only if they are based on a common undivided interest.

Subject Matter Jurisdiction Multiple plaintiffs may not aggregate separate and distinct claims to reach the jurisdictional amount, even if factually related. P1 (claim 1) + P2 (claim 2) v D = NO

Federal Question Jurisdiction 28 USC 1331 Federal Question Jurisdiction The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Constitutional Standard o Osborn v Bank of the US - may confer jurisdiction whenever a federal question forms an "ingredient" of the claim. o Osborn offers an interpretation of the scope and meaning of Article III not legislation conferring jurisdiction on the federal courts. o Under Osborn, under Article III Congress may confer jurisdiction whenever a federal question forms an "ingredient" of the claim. - "Whenever there exists in the background some federal proposition that might be challenged, despite the remoteness of the likelihood of actual presentation of such a federal question." Broad view of federal question power - In 1824 the Supreme Court upheld a statute that it read to grand federal courts jurisdiction over any case to which the Bank of the United States (a private bank created by Congress) was a party. It found this acceptable because, even if the suit were about a state law debt, the bank was a federal creation, an in every case there would be a question about whether it could legally sue-a federal question. The fact that this question would not be important after it was resolved did not bother the Court; "the question forms an original ingredient in every cause. Whether it be in fact relied on or not, in the defense, it is still a part of the cause, and may be relied upon (to uphold federal question jurisdiction). Substantial Bearing on an outcome- where a federal law is an element of a state law claim, it suffices to support federal question jurisdiction only where it is important to the outcome of the case: "The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. Well Pleaded Complaint Rule "Well Pleaded Complaint Rule"- holds that to qualify for statutory federal question jurisdiction the presence of a federal question must appear in the plaintiff's presentation of its cae in the context of a "well-pleaded" complaint. That is, one that limits itself to a statement of its own cause of action. Louisville & Nashville Railroad v Mottley - P sued D railroad in federal court alleging that the railroad had breached a contract to provide Plaintiffs with free lifetime passes to ride the railroad. Breach of K is a state law claim. The railroad had granted P the passes to settle P personal injury claims against it. Diversity jurisdiction was not available. In an attempt to federal question jurisdiction, P, in their complaint, alleged that D would defend the breach of K action by claiming that a newly enacted federal statute prohibited such lifetime passes. They further alleged that the statute should not apply to them or that the statute unconstitutionally deprived them of their property without due process of law. Anticipation of defense insufficient - Sup Ct. held that the federal courts did not have federal question jurisdiction over the case because the allegations

Subject Matter Jurisdiction relating to the federal statute were not essential to P action for breach of K; they merely anticipated a defense that the railroad would have to plead and prove. The Essential Federal Element Requirement Grable & Sons v Darue o Nonfederal claim that turns on construction of federal law - In a quiet title action in state court, P sought to regain title to real property that had been seized and sold to D by IRS to satisfy P tax delinquency. P claimed that Ds title was invalid b/c the notice it received of the sale did not satisfy the requirements of the IR code. The Court ruled that the quiet title action fell within federal question jurisdiction b/c the question whether proper notice was given under the IRC involved a matter of substantial federal interest and was an essential element of the state law claim. Rule - "The question is, does the state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities. " Factors set forth by Court to consider in determining whether a state law claim should be seen to arise under federal law. Specifically, IF: 1. Does the state law claim case necessarily raises a federal issue, o Does the right to relief depend upon the construction or application of federal law? Smith 2. Federal issue is actually disputed and substantial, and o Federal jurisdiction demands not only a contested issue, but a substantial one, indicating a serious federal interest in claiming the advantages thought to be inherent in the federal forum. 3. Federal jurisdiction will not disturb "any congressionally approved balance of federal and state judicial responsibilities." o In adjudicating the dispute, would the federal court disturb any congressionally approved balance of federal and state judicial responsibilities. Then centrality requirement is satisfied. o Supplemental Jurisdiction Under the doctrine for Supplemental Jurisdiction, the new parties and new claims may not have to independently satisfy subject-matter jurisdiction- they can in effeect be "tacked on" to the core controversy. United Mine Workers of America v Gibbs P claimed that D union violated federal labor laws and committed the state law tort of interference with contract by pressuring customers of Plaintiff not to employ his services. Both federal and state claims arose from the same series of actions by D's agents. The federal court could grant P judgment on the state law claims even if it decided after trail that P had not established a violation of federal law. o - Gibbs has been read to require that (1) there must be a federal claim (whether from the Constitution, federal statute, or treaty) and (2) the nonfederal claim arises "from a common nucleus of operative fact" such that a plaintiff "would ordinarily be expected to try them in one judicial proceeding." Goal - The Goal of Supplemental Jurisdiction is to promote judicial economy and consistency of decision by removing obstacles to having all related controversies decided in one proceeding. As the Supreme Court put it, "Under the Fed Rules of Civ Pro, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties. P claimed that D union violated federal labor laws and committed the state law tort of interference with contract by pressuring customers of Plaintiff not to employ his

Subject Matter Jurisdiction services. Both federal and state claims arose from the same series of actions by D's agents. The federal court could grant P judgment on the state law claims even if it decided after trail that P had not established a violation of federal law. Judicial Power to limit of Constitution - The statute grants federal courts that have original jurisdiction over a claim supplemental jurisdiction over all other claims that form part of the same case or controversy under Article III of the Constitution. Standard TEST for Supplemental Jurisdiction in Federal Question Cases: 1. Substantial Federal Claim must be sufficiently substantial to support federal question jurisdiction. 2. Common Nucleus of operative fact - The federal and nonfederal claims must derive from a common nucleus of operative fact. 3. One Judicial Proceeding - The federal and nonfederal claims must be such that the P "would ordinarily be expected to try them in one judicial preceding." o Time of decision - "The question of Constitutional power will ordinarily be resolved on the pleadings." Novel or complex issue of state law- If the state law to be applied to the nonfederal claim is uncertain, the district court may decline to entertain that claim so that the parties can get a "surer-footed reading of applicable law" from a state court. Nonfederal claim substantially predominates - The federal court may conclude that the nonfederal claim is the real body of the case. The court should not "tolerate a litigants effort to impose upon it what is in effect only a state law case." Pendent and Ancillary Jurisdiction after Gibbs Pendent party Jurisdiction - the authority of a United States federal court to hear a closely related state law claim against a party already facing a federal claim, described by the Supreme Court as "jurisdiction over nonfederal claims between parties litigating other matters properly before the court." - Pendent jurisdiction refers to the court's authority to adjudicate claims it could not otherwise hear. The related concept of pendent party jurisdiction by contrast is the court's authority to adjudicate claims against a party not otherwise under the court's jurisdiction because the claim arises from the same nucleus of facts as another claim properly before the court. o -Ex. P asserts a qualifying federal law claim and a non-qualifying statelaw claim against the same defendant. Outdated and replaced - allows a United States federal court to hear certain claims sufficiently related to the original claim that would otherwise defeat the court's jurisdiction. o -Ex: a California resident (the plaintiff) might sue a New York resident (the defendant) in federal court based on diversity but the New York resident wants to implead his New-York-based insurance company, an action that would otherwise defeat diversity because the Third-party Plaintiff (defendant in the original action) and the insurance company (Third-party Defendant) are from the same state. Ancillary jurisdiction allows the federal court to continue hearing the case despite this lack of diversity because bringing in the insurance company is sufficiently related to and necessary for the fair conclusion of the claim. o Modern Supplemental Jurisdiction 28 USC 1367. Supplemental jurisdiction (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original

Subject Matter Jurisdiction jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. (Gibbs lives on). (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) o over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or o over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or o ( claims by persons) seeking to intervene as plaintiffs under Rule 24 of such rules, o when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if (C talks about fairness, discretion of court) o (1) the claim raises a novel or complex issue of State law, o (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, o (3) the district court has dismissed all claims over which it has original jurisdiction, or o (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Rule 14: Third-Party Practice - claims by plaintiffs against parties impleaded. Rule 19: Required Joinder of Parties - claims by plaintiffs against parties joined Rule 20: Permissive Joinder of Parties - claims by plaintiffs against parties joined Rule 24: Intervention- claims by plaintiffs against parties intervening 1367a says: P (state A) v D1 (fed claim) + d2 (state a) (state claim) o Exon Mobil Crop v Allapattah Services - Held that when the well read complaint rule contains at least one claim that satisfies the amount in controversy requirement, and there are no other relevant jurisdictional defects, the district court, beyond all question, has original jurisdiction over that claim. The presence of other claims in the complaint, over which the district court may lack original jurisdiction, is of no moment. Rule 20- Joinder of Plaintiffs The supplemental jurisdiction statute has no provision excluding claims by plaintiffs joined permissively pursuant to Rule 20. The Supreme Court has settled that claims by completely diverse plaintiffs in a diversity case when one plaintiff has a claim satisfying the amount required, but others with related claims do not, come within supplemental jurisdiction. The Courts opinion, however, indicated that incomplete diversity would still destroy jurisdiction as to all claims. "Explicitly excludes supplemental jurisdiction over claims against defendants joined under Rule 20." Class Actions SC held that related claims of class members may be appended to the jurisdictionally sufficient claims of plaintiff class representatives, even though the class members claims could not themselves satisfy the amount in controversy requirement. o Removal Jurisdiction

Subject Matter Jurisdiction If a plaintiff files a claim in state court, defendant can "remove" the entire case into federal court. 28 USC 1441 General Standards of Removability 28 USC 1441 Actions removable generally o (a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded. o (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States (1441) shall be removable without regard to the citizenship or residence of the parties. Any other such action (1442) shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. o (c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. Hays v Cave - a case filed in state court under state law cannot be removed to fedreal court on the basis that there are defenses based on federal law. Removal under 28 USC 1441(b) An action must be one that would fall within the orignal jurisdiction of the federal courts consistent with the requirements of the "well pleaded complaint rule" and the "artful pleading doctrine." Additional claims property falling within the supplemental jurisdiction of the federal courts are treated as part of the "civil action" that may be removed under 1441(a). - Notwithstanding the provisions of 1441(a), an action is not removable if any defendant is a citizen of the state in which the plaintiff initiated the action, unless there exists a claim that would qualify for federal question jurisdiction. Removal of Additional Claims Removal under 28 USC 1441 (c) o "separate incident" - refers to claims that are completely disassociated wit the removable claims o 1441c only extends jurisdiction to non-removeavle claims that are unrelated to removable federal question claims. o Fullin v Martin Removal & Remand Procedures 1441, 1446, 1447 Removal - A mechanism to transfer a case, a the defendant's behest, from a state trial court to a federal trial court. gives the Defendant, sued in state court, the right to "remove" the case to federal court. P's case must satisfy federal subject matter jurisdiction. One way street -Can only be removed from state court to federal court. Only D's can seek removal, EVEN IF D files a counter claim against P. P chose the forum and is stuck with his choice.

Subject Matter Jurisdiction Multiple Defendants- All must agree to removal, any holdouts prevent it. All = all who have been served with process in the case. 30 days Rule - must be removed within 30 days after being served. "First served rule" v "Last served Rule" - latter is more common. 1441 Governs- D can only remove a case if it is "one of which the district courts of the US have original jurisdiction" 1441a. P's coa must satisfy a basis of federal subject matter jurisdiction. Remand - an action by an appellate court in which it sends back a case to the trial court or lower appellate court for action

Venue
o Pertains to the geographical area within which a civil action may be brought. o Fall back provisions are only applicable if first two provisions fail to establish an appropriate locale. o Bates v. C&S Adjusters, Inc. Held that a letter forwarded to WDNY consisted as substantial part of eventsgiving rise to the claim occurred. o 28 U.S.C. 1391 Does not apply to state courts (Freer pg 250) You may lay venue in any district where all defendants reside (a) Where a case is founded on 1332 Diversity then a civil action may be brought only in: (1) a judicial district where ANY defendant resides o ONLY IF ALL DEFENDANTS RESIDE IN THE SAME STATE. (2) a judicial district in which the substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action ma otherwise be brought (b) Where a civil action is NOT founded on diversity (1) a judicial district where ANY defendant resides o ONLY IF ALL DEFENDANTS RESIDE IN THE SAME STATE. (2) a judicial district in which the substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action ma otherwise be brought (c) Defendant Corporations Shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction o At the time the action is commenced In a State which has more than one judicial district, AND in which a defendant that is a corporation is subject to personal jurisdiction at the time the action is commenced

o o o

Venue o Such Corporation is shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State. o AND o If there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts. (d) An alien may be sued in any district Local Action Doctrine Venue is proper within the state where the property is located for disputes concerning real property (in rem or quasi-in-rem). Special Venue Statutes 28 U.S.C. 1400 governs copyright and patent cases. Challenging Venue Fed. R. Civ. P. 12(b)(3) Motion to dismiss for improper venue Pendent Venue Multiple claims against multiple defendants State Law Claims and Federal Trademark Claims o Governed by 28 USC 1391 Federal Copyright claims o 28 U.S.C. 1400(a) Provides that venue is proper in a district in which the defendant resides or may be found. A defendant may be found in a district if the defendant is subject to personal jurisdiction in that forum. Patent Infringement Claim o 28 U.S.C. 1400(b) Provides that an action may be brought in a district where the defendant resides OR where the defendant has committed acts of infringement and has a regular and established place of business. Regular established business involves more than doing business. Courts consider whether the business owns property, rents property, or employs sales agents. (PKWare v. Meade on page 300 of Spencer). Residency for Venue Individuals Domicile carries more weight than a residence Corporations Example: DO NOT CONFUSE CITIZENSHIP WITH RESIDENCE Ford Motor Co is a citizen in two different states. Michigan because of its PPB or Deleware where its incorporated. But it resides in all 94 districts in the US because it does business everywhere and subject to PJ in all jurisdictions. Where the business is incorporated Where the business has its principal place of business Where they have engaged in business activity and can be subjected to Personal Jurisdiction Voluntary Associations Partnerships Or

Venue Trade Association Or Unincorporated associations o Residence of the association itself rather than that of its individual members o Change of Venue 28 U.S.C. 1404(a) (a) for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. o This statute refers to cases that are filed in a proper venue and are not subject to Fed. R. Civ. P. 12(b)(3) Smith v. Colonial Penn Ins. Co. o Interprets the interest of justice phrase to mean several factors: 1. The availability and convenience of witnesses and parties, 2. The location of books and records, 3. The cost of obtaining attendance of witnesses and other trial expenses 4. The place of the alleged wrong, 5. The possibility of delay and prejudice if transfer is granted, AND 6. The plaintiffs choice of forum, which is entitled to great deference. Hoffman Rule o Interprets the phrase where it might have been brought as only those districts where the plaintiff could have initially filed the action properly, without consent of the defendant rendering those transferee courts permissible for the purposes of 1404(a) Van Dusen Rule o Supreme Court held that a transferee court in a 1404(a) transfer must apply the choice of law rules that the transferor (the original district) would have applied they reasoned that the change of venue should simply change the courtroom and not the law to be applied to the merits of the case. o Does not apply to cases transferred under 1406 because those courts transferred as a result of improper venue. Goldlawr Rule o Transfer by way of 1404(a) and 1406(a) is allowed by a transferor court that lacks subject matter and personal jurisdiction over the defendant. o Curing Defective Venue 28 U.S.C. 1406(a) (a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such a case to any district or division in which it could have been brought. o This statute is for cases filed in improper venue and thus are subject to dismissal under Federal Rule 12(b)(3). o Multidistrict Litigation 28 U.S.C. 1407 Civil actions sharing common questions of fact pending in different federal districts may be transferred to any district for consolidated pretrial proceedings.

Venue These transfers are determined and implemented by a special body called the Judicial Panel on Multidistrict Litigation (JPML). If there is a trial they are to be remanded to their respective original transferor courts. o Venue in Removal Cases 28 U.S.C. 1441(a) Gives the courts power to transfer to a venue Renders 1391 inapplicable Expressly provides that the proper venue of a removed action is the district court of the United States for the district and division embracing the place where such action is pleading. o Example: P sues D in state court in St. Louis. D removes the case to the federal district court for the Eastern District of Missouri (which embraces St. Louis). D does not reside in the Eastern District of Missouri. No part of the claim arose in the Eastern District of Missouri. In other words, the Eastern District of Missouri is not a proper venue under 1391 (a)(1) or (2) or 1391 (b)(1) or (2). Venue is still proper because in removed cases, venue is possible only in the federal district embracing the state court in which the case was originally filed. o Forum non conveniens Piper Aircraft Co. v. Reyno Established that when trial in the chosen forum would establishoppressiveness and vexation to a defendant out of all proportion to plaintiffs convenience, or when the chosen forum [is] inappropriate because of considerations affecting the courts own administrative and legal problems, the court may; o In the exercise of its sound discretion, dismiss the case. The court must provide a list affecting the convenience of the forum of BOTH: o Private interest factors, AND 1. Relative ease of access to evidence 2. Ability to compel attendance of witnesses at trial through subpoena 3. Expense of obtaining attendance of willing witnesses o Public Interest factors 1. Administrative difficulties of keeping the case 2. Local interest in having localized controversies decided at home 3. The desire to have a case tried in a forum well versed in the law that will apply 4. Avoiding undue problems with conflict of laws or in the application of foreign law 5. The unfairness of burdening citizens with jury duty in a case unrelated to the forum. This is generally a dismissal of the case contingent upon the defendants agreement to permit the case to be litigated in an alternative forum, waiving any jurisdictional or other challenges to the alternate courts authority to adjudicate the dispute.

Pleadings
o Fed. R. Civ. P. 3 A civil action is commenced by filing a complaint with the court. o Fed. R. Civ. P. 7(a)

Pleadings Provides for only three basic pleadings: the complaint (in Rule 7(a)(1)), the answer (which may be filed in response to various claims, as seen in Rule 7(a)(2), (3), (4), and (6)), and the reply (in rule 7(a)(7), o filed only if the court orders a party to do so. Motion where a party asks the court to enter a particular order is not a pleading. Code Pleading A pleading practice which seeks to give notice to the defendant of the plaintiffs claim, develop the facts in support of the parties claims and defenses, allow the court to weed out unmeritorious claims before proceeding to trial, and narrowing the issue before the court. Common Law Pleading Writ driven complaints; no discovery; case could be dismissed if did not fit within originally alleged writ. Notice Pleading Fed. R. Civ. P Rule pleading; Rule 8(a) requiring short and plain statement General Rules of Pleading o (a) Claim for Relief. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. Form Pleading Fed. R. Civ. P Rule 84 Forms o The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate. Complaint The three main elements include a statement of the basis for the courts subject matter jurisdiction, the plaintiffs claim, and the relief that the plaintiff seeks. Fed. R. Civ. P 8(a): (a) Claim for Relief. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. Swierkiewicz v. Sorema N.A., Lower courts applied an evidentiary standard when evaluating the sufficiency of the complaint (McDonell Douglas standard) that is applicable to evidentiary matte and not to be applied to a complaint. Supreme Court argued that the standard to be used in the complaint was the short and plain statement under Rule 8(a) . Courts look to see if the Conley standard

o o

o o

o o

o o

Pleadings has been satisfied (shich says that the court should dismiss only if there are no set of facts). The court will look to see if the plaintiff has said enough which will alow them to engage in discovery o Alleged facts are accepted as true and subject to sanctions under Rule 11. Held that the petitioners complaint easily satisfies the requirement of Rule 8(a) because: o It gave respondent fair notice of the basis for the petitioners claims;AND o The grounds upon which they rest. Bell Atlantic Corp. et al. v. Twombly The question in this case was what must the plaintiff plead to satisfy Rule 8(a)(2). Twombly overruled Conley in that it dispensed with the no set of facts phrase. Twombly states that A complaint should not dismissed for failure to state a claim if the plaintiff has alleged facts, that if true, support a plausible claim for relief. Twombly and Iqbal together mean these three things: 1. Plaintiff must plead FACTS supporting a PLAUSIBLE claim. 2. A court will ignore conclusions of law 3. The court will use its own experience and common sense to determine if a claim is plausible. Fed. R. Civ. P. 9(b) Pleading Special Matters (b) Fraud or Mistake, Conditions of Mind. o In alleging fraud or mistake, o a party must state with particularity the circumstances constituting fraud or mistake o Malice, intent, knowledge, and other conditions of a persons mind may be alleged generally. Rule 9(b) is met when there is sufficient identification of the circumstances constituting fraud so that the defendant can prepare an adequate answer to the allegations. Denny v. Carey, 72 F.R.D. 574 (E.D.Pa. 1976). Fed. R. Civ. P. 8(e)(2) Allow plainitffs to plead alternate and inconsistent allegations. Fed. R. Civ. P. 8(d)(2) Pleading to be Concise and Direct; Consistency (2) A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one court or defense or in separate counts or defenses. A party may also state as many separate claims or defenses as the party has regardless of consistency. Prayer for Relief (ad damnum clause) Fed. R. Civ. P. 8(a)(3) a demand for judgment for the relief the pleader seeks Rule 54(c) states, A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party as not demanded that relief in its pleadings. Under this rule, a plaintiff may collect more than they seek in the prayer, so long as the evidence supports the increased amount. Fed. R. Civ. P. 9(g) Requires that a plaintiff specifically state in the pleading when he/she is seeking special damages. Serving the Complaint

Pleadings Summons a document that orders the defendant to appear in court and respond to the plaintiffs allegations. The summons and the complaint together are referred to as process. Fed. R. Civ. P. 4(e) - Individuals Unless federal law provides otherwise, an individual other than a minor, an incompetent person, or a person whose waiver has been filed may be served in a judicial district of the United States by: o (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or o (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individuals dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process Fed. R. Civ. P. 4(h)(1) Corporations Refers reader back to 4(e) By delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process andif the agent is one authorized by statute and the statute so requires by also mailing a copy of each to the defendant. Fed. R. Civ. P. 4 Service upon individuals and corporations outside of the US 1. Service can be made pursuant to the terms of an international treaty such as the Hague Convention on the Service Abroad of Judicial Extrajudicial Documents because they establish a detailed regime for transmitting such documents to persons found within foreign countries. 2. In the absence of the international agreements, service can be made in one of the three following ways: o 1. In the manner defendants are ordinarily served within those countries for suits in their regular courts o 2. As directed by that country in response to a letter rogatory from the US court requesting instruction on service, or for individual defendants o 3. Through personal service or by any form of mail that the clerk addresses and sends to the individual that requires a signed receipt, provided the foreign country does not prohibit such service. 3. By other means not prohibited by international agreement, as the court orders. Rio Properties, Inc. v. Rio International Interlink Concluded that service under rule 4(f)(3) is neither a last resort nore extraordinary relief. Applying this proper construction of Rule 4(f)(3) and its predecessor, trial courts, have authorized a wide variety of alternative methods of service including publication, ordinary mail, mail to the defendants last known address, delivery to the defendants attorney, telex, and most recently, email. The method of service must comport with constitutional notions of due process. To meet this requirement, the method of service crafted by the district court must be reasonably calculated, under all the circumstances, to apprise interested

Pleadings parties of the pendency of the action and afford them an opportunity to present their objections. Mullane v. Central Hanover Bank & Trust Co. o In this case, the court promotes email specifically for the facts at bar not as a form of service to be considered without a court decree. Insufficient Process Defect with the document. o Ex. Misspelled name. Insufficient Service of Process Defect with the way in which the documents were delivered. o Example: Allegations in Rio. o Responding to the complaint Response by Motion or Answer Responsive Pleadings 12(a)(1) 21 days to file an answer Defensive Motions 12(a)(4) If motion is denied, 14 days after notice of courts action Requests for waivers Rule 5(d)(F) o 30 days to file an answer What is a day? Rule 6 o Excludes triggering event (service of process). o Count weekends and holidays o Include the last day of the period unless it falls on a day the clerk of courts is inaccessible which allows the period to run until the end of the next day. o If the period is in hours begin counting on the triggering date and follows the end date as a period of days (including and excluding legal holidays). o (4) Last Day Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends: (A) for electronic filing, at midnight in the court's time zone; and (B) for filing by other means, when the clerk's office is scheduled to close. o (6) Legal Holiday Defined. Legal holiday means: (A) the day set aside by statute for observing New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, or Christmas Day; (B) any day declared a holiday by the President or Congress; and (C) for periods that are measured after an event, any other day declared a holiday by the state where the district court is located. o (b) Extending Time. (1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time: (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect. (2) Exceptions. A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).

Pleadings Responding by Motions A motion is not a pleading. A motion is a request for a court order. Anytime you ask the court for an order, you are making a motion. Most focus on Rule 12(b) o Basis for motions to get rid of the case. Lack of SMJ Lack of PJ Improper venue Insufficient process (problem with the documents) Insufficient Service of process (documents are ok but the manner in which they were served was incorrect) Failure to state a claim Failure to join an absentee under Rule 19 (Indispensible party problem). Rule 12(g) and (h) o 12(b) 2, 3, 4, and 5 must be placed in the first Rule 12 response or else they are waived (Answer or Motion). o 12(b)(6), and (7) can be raised anytime throughout trial. o 12(b)(1) cannot be waived and can be raised at anytime during trial. Responding by Answer Respond by answer an answer is a pleading o Two things must go in the answer Abide by Rule 8(b) respond to the plaintiffs allegations and there are three ways to respond. Admit Deny Or lack sufficient information Failure to deny is an admission (except damages). Raise affirmative defenses according to 8(c)(1) Affirmative defense injects a new fact. Youre not simply denying the Plaintiffs allegations and youre raising something new. If youre right you will win. o You must plead them or you waive them also. o Example: Res Judicata

Erie Doctrine
o Generally comes up only in diversity cases. o There is a particular issue that the judge must decide. o The question is: in deciding that issue, does the federal judge have to use state law or is she free to ignore state law. o If there is a Federal Directive on point, then you apply simply the Hanner v. Plummer (see below)

Erie Doctrine o If there is no Federal Directive on point, then you use the tests for the application of Erie. Erie RR v. Tompkins Federal Court in diversity cases must apply state substantive law is commanded by the Rules of Decision Act 1652 and the 10th amendment of the Federal Constitution. o How do we know if its substantive? Elements of the claim are pure substance. In Erie the tort elements were deemed substantive. Tests for application of Erie. Outcome Determinative o Guaranty Trust Case State statute of limitations, but it had run and bar the claim. Judge said that he didnt like that SOL and the S. Ct. did not approve. If it affects the outcome of the case it is substantive. If we apply the state SOL the case was dismissed right now and if we ignore the SOL then the case would get a longer lifespan. Balance Interests o Bird Case state law said that a particular issue in the case must be decided by the judge not the jury. A federal judge in diversity case didnt like that and wanted to have the jury decide the case. No federal directive on point and the question became can the judge ignore the state law. The S. Ct. said that the Federal Court should usually follow state law unless there is a federal interest in doing it differently. Twin Aims of Erie o Avoid forum shopping; AND o The inequitable administration of the law o How to apply the twin aims Ask at the outset of the case, if the Federal judge ignores state law on this issue, will it cause parties to flock to federal court. Will it engage forum shopping. So if it would leave to forum shopping we should follow state law. o Hanna v. Plummer (apply if there is a federal directive on point) Tells us that what we thought was one doctrine, the erie doctrine, is really two doctrines. Under Hanna we ask, is there some Federal directive. If the answer to that is yes, then the Federal directive wins. It will apply as long as the Federal directive is valid. How do we know if the directive is valid? We analyze it under the Rules Enabling act 207

Joinder
o an important part of most course because these rules determine the scope of the litigation (how many plaintiffs, claims, parties, etc.). o Claim Joinder by the plaintiff Fed. R. Civ. P. 18(a) Plaintiff can join all claims and they dont have to be related. Not compulsory. You May join all these things.

Joinder We still have to assess SMJ. o Claim Joinder by the defendant - Defendant is going to sue someone, assert a claim. Defendant will become a claimant. Theres a counter claim and cross claim. Counter Claim Fed. R. Civ. P 13(a),(b) Counter claim is against an opposing party o Compulsory 13(a)(1) is one that arises from the same transaction or occurrence (t/o). If this rule applies you must assert that claim in this case. If it is not asserted here the claim is waived. o Permissive 13(b) does not arise from the same t/o as the plaintiffs claim. Does not have to be asserted in this o Ex. P (CT) (100K) D(FL) (90k) (Compulsory CC) Then check SMJ on Compulsory CC Ok to invoke diversity o Ex. P(CT) (100k) D(FL) (45K) (Compulsory CC) Check SMJ This case does not invoke diversity Check for Supplemental JD 1367(a) is ok because the claim does arise out of a common nucleus of operative fact. Checking against 1367(b) it does apply since there is diversity; however, 1367(b) only applies to claims asserted by Plaintiffs. Cross Claim Fed. R. Civ. P 13(g) against a co-party. You can only have a cross claim if you have multiple parties. The cross claim must arise from the same t/o as the underlying case. A - P(MS) (1mil.) B - D1(NY) (1mil) C - D2(NY) D2 D1 Cross claim No diversity No Federal Q. Supp. JD 1367(a) works 1367(b) N/A because it only takes away Supp JD by plaintiffs. o Proper Parties Fed. R. Civ. P. 20(a) Question of who may be joined in a case. Co-Plaintiffs - 20(a)(1) we may join together because our claims arrive from the same t/o and raise at least one common question. Co-Defendants 20(a)(2) Same as above. You may join defendants if the claims arise from the same t/o and raise one common question. o Necessary and Indispensible Parties Fed. R. Civ. P. 19 People who MUST be joined. How it works

Joinder Plaintiff is the architect of the case. Rule 19 comes up when the plaintiff left someone out. Youve got P v. D. and an absentee called A. Sometimes the court will reach up and grab A and force them into the case. Under what circumstances will we force A into the case. o Rule 19 Cut down First we ask who is necessary Rule 19(a) How we know when an absentee is necessary. Three tests: o Rule 19(a)(1)(a) without the absentee (A) the court can not accord complete relief among the parties. o Rule 19(a)(1)(b)(1) here were worried that the absentees interest may be harmed if not joined. o Rule 19(a)(1)(b)(2) here As interest may subject the defendant to multiple or inconsistent obligations. Hypo: If I have a stock certificate for 1000 shares it says my name; but, Freer argues helped purchase the shares and his name should be on the cerftificate also. Freer (P) brings suit against XYZ corporation (D). Who is the absentee? I am the absentee. Am I necessary? Yes, but go through all three tests. First, the court cannot accord complete relief because if my stock is cancelled to reissue certificate with both names, Ill bring suit and there will be multiple litigation so we do meet the first test. The second test is also satisfied because my interest will be harmed due to Freers successful suit canceling my stock. Finally, to avoid inconsistent rulings it is necessary to join me because if Freer wins the court will require the corporation t reissue the stock but if I win the court will ask the court to issue me a certificate which is inconsistent. Second, we ask if joinder of the absentee feasible? Two things to look at: Feasible if theres PJ; and If bringing in A doesnt interfere with diversity. Third, If joinder is not feasible , you can either: Proceed without the absentee, OR Dismiss the case.

Joinder o How does a court decide this? Rule 19(b) and court uses four factors to decide this. If the court dismisses, we call the absentee indispensible and this is a motion to dismiss under 12(b)(7). Of the four factors, this is the most important: If he court chooses to dismiss, the court asks if the Plaintiff will have an adequate remedy (justice somewhere else). o Impleader Rule 14 If it starts with (I) someone new is coming into the case. Impleader is also known as third party practice. Any defendant can bring in a Third Party Defendant (TPD). We cannot always do this. We can do it if the TPD may be liable to the defendant on the Plaintiffs claim. The defendants been sued and believes there is someone else who is liable for indemnity or contribution. Example: We have two joint tortfeasors and the plaintiff sues one of them. That defendant is thinking if I lose I should only have to pay half the judgment. The defendant then brings in the TPD. Example: TPD brought in by D P D ^ (D brings TPD for Indemnification or contribution)

o Then we have to assess TPD and Ds claim under SMJ. That claim may come in through diversity, federal question, or suppl. Jd. o There are more claims o Under Rule 14(a)(3) - the plaintiff can assert a claim against the TPD if it arises from the same t/o. o 14(a)(2)(d) - TPD can also assert a claim against the P if it arises from the same t/o of the underlying case. o All claims are assessed under SMJ for diversity, federal ques., and if all else fails Suppl. JD. o Intervention Fed. R. Civ. P. 24 - Starts with I so were bringing in someone new. When you intervene you choose whether you intervene as a plaintiff or defendant and court may realign you if it believes youve chosen the wrong side. Two kinds of intervention and in both the application must be done in a timely fashion. Two types of intervention: Intervention of right Fed. R. Civ. P. 24(a)(2) tells the court that you have a right to intervene if your interest may be harmed if youre not joined. (exactly the same as necessary parties under 19(a)(1)(b)(1)). Permissive Intervention (much less likely) - Fed. R. Civ. P. 24(b)(2) all you have to show is that As claim or defense in the pending case have at least one common question. Court does not have to let you in. If the court allows the intervention assess the SMJ. o Class Action the rep sues on behalf of a plaintiff class. Pre-Requisites Fed. R. Civ. P 23(a) there are four

Joinder Numeracity ( there have to be so many people that its better than traditionally joining plaintiffs). Commonality (theres gotta be something in common among them) Reps claim is typical of the class member Rep is adequate. That rep must adequately represent those class members. Types of Class - Fed. R. Civ. P 23(b) tells us there are three kinds of class action. B1 and B2 are very specialized only B3 will be discussed. B1 B2 B3 o First, you must show that common questions pre-dominate over individual questions. o The class is the superior method for resolving the dispute. o A case is not a class action until the court certifies it. o Notice of pendency Rule 23(c)(2)(B) - In the B3 class, the court must give individual notice to all members reasonably identifiable. This notice is only required in a B3. o Who is bound by the judgment Everyone is bound except those opted out of a B3. There is no opt out of a B1 or B2. o Settlement or dismissal of a certified class must be approved by the court o SMJ It could be a federal question or diversity. Diversity For citizenship you look only at the rep. You do not look at the other class members. All you need is for the rep to be diverse from every defendant. For amount in controversy, you look only at the rep. As long as the reps claim exceeds 75k, were ok. o CAFA (Class Action Fairness Act) opens the door to a Federal court by a stunning degree. CAFA was mainly to open up the federal courts to class actions. 1332(d)(2) grants SMJ for CAFA if: any class member is diverse from any defendant and the aggregate damages exceeds 5 million dollars This is mostly used for defendant because Federal courts are generally a little tougher on Class Actions.

Discovery
o The rules are basically very liberal to avoid surprises and allow access to ESI if the standard for discoverability is met. o Required Disclosure Fed. R. Civ. P. 26(a) Tells the party that they must produce certain information even if it was not requested. Also found in 26(a)(1),(2), and (3).

Discovery/Pre-Trial Adjudication Most important is 26(a)(1) because its the initial disclosure You must identify people with discoverable info that you might use at trial. Anybody you know of who has discoverable information that you may use at trial for you claim or defense. You must also give a description or copies of documents and ESI and even tangible things that you expect to use at trial. Plaintiff has to give the calculation of damages and the defendant has to give what kind of insurance coverage. 26(a)(2) is about experts, and 26(a)(3) as you approach trial you have to disclose pre-trial required disclosures which is everything that will be raised at trial. o Discovery Tools Five tools. Important to identify which tools can be used to get information from a non-party. Deposition (Rule 30 and 31) Is sworn oral testimony. Asked questions and testifies under oath. You can take a deposition of a party or non-party. But, you must subpoena the non-party or he will not show up. Interrogatories (Rule 33) are written questions answered in writing under oath. Only go to parties and not to non-parties. Request to Produce (Rule 34) written request that somebody give you access to anything. Documents, ESI, tangible items. 34(c) says you can use it to get information from non-parties if theyre hit with a subpoena. Medical Exam (Rule 35) You must get a court order. Ordered of a party or of someone in a partys custody or legal control. Does not include employee of employer. Request for admission (Rule 36) To force another party to admit or deny any discoverable matter. Can only be sent to parties. o Scope of Discovery Standard Rule 26(b)(1) says you can discover anything relevant to a claim or defense. Relative to a claim or defense means that its reasonably calculated to lead to admissible evidence. Privileged matters are not discoverable. Attorney client (example) WORK PRODUCT Rule 26(b)(3) also known as trial preparation materials Work Product is material prepared in anticipation of litigation. Not routine stuff. If its work product it is not subject to discovery. Overriding work product. You can get work product if you show: o Substantial need o Information is not otherwise available.

Discovery/Pre-Trial Adjudication Some work product is absolute, of which youll never see. You wont get mental impressions, conclusions, opinions, and legal theories. Does not have to generated by an attorney. It can be generated by a party or any representative of a party.

Pre-Trial adjudication
o Fed. R. 12(b)(6) Motion to Dismiss for Failure to State a Claim The court never looks at evidence. The court looks at the face of the complaint. The court says that if everything in the complaint were true, would the plaintiff win? Remember the standard got a little tougher with Twombly and Iqbal. Youve got to plead facts and the legal conclusions will be ignored. Example: If plaintiff pleads facts about A,B, and D for a claim that needs facts for A,B, C, and D. The court will dismiss, usually without prejudice. All were doing is testing the legal sufficiency of the claim. o Fed. R. 56 Motion for Summary Judgment The court here can and usually does look at evidence. The standard shows that there is no dispute as to any material issue of fact You are entitled to judgment as a matter of law Here we have stated a claim and we are showing that we do not need a trial because there is no dispute of fact. Evidence is proffered by the parties. You can use deposition testimony, affidavits or declarations (written statements signed under penalty of perjury). When were talking evidence, this does not include pleadings.

Trial
o We only go to trial to resolve disputes of fact. If we have a jury, the jury decides the facts. It resolves the disputes of fact. Whos lying or telling the truth and damages. If we dont have the jury, the judge determines the facts and is called a bench trial. o Right to a Jury Trial In Federal Court Civil Cases 7th Amendment Only applies in Federal court and in civil cases. This amendment PRESERVES (does not create) the right to a jury trial and does so only at law, not at equity. Preserve Provides us with a test o Whether we get a trial today, is based upon whether we would have had a trial in 1791. Figuring out if we get a trial today (Two Factors where b is most important) o First, is the claim analogous (similar) to a claim that existed in 1791. o Second, we focus on the remedy: Legal Remedy, or

Trial Money damages Equitable Remedy Injunction Court orders making the defendant do something or stop doing something. Specific Performance Command you to do perform something. Rescission of a Contract Bekin Theater and Dairy Queen created three rules: We will determine the right to jury issue by issue If an issue of fact underlies both law and equity, you get a jury Generally, jury issues are tried first. o Motions there are various motions that can come up at trial. If were going to have a jury, weve got to have some way that the judge can control the jury so that they dont do stupid stuff. Two motions judges can use for a judge screening the case out that doesnt not require a jury: Fed. R. Civ. P. 50(a) Judgment as a Matter of Law (JMOL/Directed Verdict) Standard o Rule 50(a)(1) Says that well grant the motion for JMOL if a reasonable jury could only come out one way then it should not go to a jury. Reasonable people could not disagree. Judge looks at evidence and its overwhelming allowing the judge to grant the motion for JMOL and grant the motion ending the case without need for the jury. There must be a motion. Judge cannot do this himself Timing o Rule 50(a)(2) Says that you can only move after the other side has been heard at trial. HYPO o Suppose Plaintiff must prove A, B, C, and D and rests. o D can make a motion for JMOL and it could be granted as a matter of law because reasonable people would not let you win if you put on a case only speaking about A, B, and D without C. Fed. R. Civ. P 50(b) Renewed JMOL which is exactly the same as JMOL only thing is that it comes up later in case and the difference is that here the judge denied the first JMOL and allowed the jury to find the facts; however, the jury did not arrive to a logical conclusion. This basically is for when the jury makes a conclusions reasonable conclusion couldnt have reached. If you want to move for Renewed JMOL under 50(a), you cannot ask for RJMOL. Fed. R. Civ. P. 59(a)(1) New Trial The point of this motion is for something that the judge did incorrectly at the trial and that the problem was serious enough to warrant a new trial. Motion for a new trial is LESS radical than the RJMOL. If we grant a RJMOL we take the victory away from the party and do not have a new trial entering judgment for the other party; in contrast, we take the judgment

Trial away but we have a new trial and allows the former winning party to perhaps win again.

Appeal
o You cannot appeal until the trial court enters a final judgment. o To figure out if the judgment is appealable, ask this question: After making this order, whatever the order is that wants to be does the trial judge have anything left to do on the merits of the case. o If the answer is yes, then it is not final and you cannot appeal. o If the answer is no, then you can appeal. o Interlocutory Statute 1292(a) Certain interlocutory orders are appealable of right. Include: o Injunctions o Appointments of receivers; and o certain admiralty, o patent infringement o property possession 1292(b) allows certification of interlocutory issues for appeal. Federal Rule Fed. R. Civ. P 23(f) allows you to seek review of a class certification order. Fed. R. Civ. P. 54(b) only for cases where you have multiple claims or multiple parties and there the trial court, if it rules as to one of the claims or the parties, it can call it a final judgment. o Example: Plaintiff brings a claim against D and D brings a counter claim and then grants Summary Judgment in favor of Plaintiff against Ds counterclaim. This rule allows you to appeal Ds counterclaim decision despite the original claim still being tried. Collateral Order Rule very limited. Allows you to ask the court of appeals to review an issue that is separate from the merits of the case. Has to be an important issue and effectively unreviewable if we have to wait until final judgment. Example: One thing that might qualify might be 11th amendment. If the court

Claim and Issue Preclusion

o There must be two cases. Case 1 has gone to judgment. Case 2 is pending. The question for us is whether the judgment from Case 1 stops us (precludes us) from litigating something in Case 2. Two ways it can preclude us from litigating in: o Claim Preclusion (also known as Res Judicata) This means that you get one case to vindicate a claim. If you have a claim you can only sue on it one time. You dont get two cases. Claim Preclusions will apply if these Three Mechanical Steps are met:

Claim and Issue Preclusion Show both cases are by the same claimant against the same defendant. (Same configuration meaning claimant can be a defendant who issued a counterclaim in Case 1 against Plaintiff in Case 1) Case 1 ended in a valid final judgment on the merits. o Fed. R. Civ. P. 41(b) - Every judgment is on the merits unless it was based on: Jurisdiction Venue, or Indispensible parties Show that both cases involve the same claim. o Majority view of claim Defines claim as the transaction or occurrence (t/o) o Minority view of claim Primary rights You get a different claim for each right invaded. o Example: One claim for harm to your body and one claim for harm to your property because those were different rights that were invaded. Semtek A court will give a prior judgment from a federal diversity court the preclusive effect that the state in which the diversity court sat would give the judgment. o Issue Preclusion (Collateral Estoppel) This is focused on an issue. There was an issue decided in case 1 and the same issue comes up in Case 2 but we dont want to relitigate because its already been litigated. If we use Issue Preclusion we deem it established in Case 2. So if in Case 1 we decided A, B, C then in Case 2 were trying to establish X, Y, and Z, then A will already be deemed established in Case 2. Mechanical Rules: o Case 1 already ended on the merits. o Show that the same issue was actually litigated and decided in Case 1. o Was that issue was essential to the judgment in Case 1. o Is it used against someone was a party in Case 1. It can only be used against someone who was a party to Case 1 includes privity. o By whom is preclusion used. The traditional rule said that you can only use issue preclusion if you were a party in Case 1. Mutuality is not required by due process. So mutuality can be rejected. Non-Mutual Issue preclusion Means issue preclusion is being used by someone who wasnt a party in Case 1 but can never be used against someone who was OK as long as the person against whom youre using it had a chance to fully litigate the issue. o Non-Mutual Defensive

Claim and Issue Preclusion Person using issue preclusion/collateral estoppel and was not a party in case 1. Example: I own a car and have a roommate. I lend my car to my roommate which means Im vicariously liable for what she does. My roommate and Freer collide in a car accident. Case 1 Freer sues my roommate. Case 1 is litigated and it is determined that Freer loses because the wreck was his fault. Case 2 Freer sues me. I then try to use Issue Preclusion on the finding from Case 1 that says the accident was Freers Fault. o Analysis Case ended on final judgment on the merits. Same issue was litigated and determined in Case 1. Issue was essential to the judgment because roommate won the first case due to Freers negligence. It is being used against someone who was a party in case 1. It is being used by me (who was not a party in case 1) and therefore non-mutual defensive preclusion. Traditional view says issue preclusion can not be used. Now, it will be able to be used because most courts in this land ok issue preclusion as long as the person against whom its being used has already had a chance to litigate the issue. o Non-Mutual Offensive Same fact pattern as example above (Freer and Roommate accident). I want the court to deem it established in Case 2 that Freer was negligent. Elements 1-4 are meant but the only tough one is number 5 because its being used by someone who was not a party in case 1 and here Im the plaintiff so its offensive. Majority today says that Non-Mutual Offensive will not allow me to use non-mutual offensive. But, there is a very strong trend that says non-mutual offensive is ok if it is fair. Parklane v. Hosiery o Says yea it can be done as long as its fair and here are the fairness factors: Did I have a full chance to litigate Did I forsee multiple suits? Could I have joined into Case 1 without difficulty. No inconsistent judgments