Civil Procedure Ides/Outline

Civil Procedure
Authors	Ides May Grossi
Text	The International Tribunal for the Law of the Sea Collection: Case I, M/V Saiga (3) (ITLOS Collection)
Taught by	Catherine Fisk Rich Seamon Bradley Shannon
Taught at	University of California, Berkeley, School of Law University of Idaho College of Law Florida Coastal School of Law
Related course(s)

PERSONAL JURISDICTION

Personal Jurisdiction: Ask whether or not the Court has power over a Defendant. Does the relevant statute permit an exercise of personal jurisdiction in these circumstances?

Pennoyer:

Statutory Question: Does the relevant statute permit personal jurisdiction?* 4(k)(1)(A): Federal court has the same statutory jurisdiction as a state court in that state.

• Two types of long-arm statutes:
  • Constitutional
  • Statutory

Does the U.S. Constitution permit an exercise of personal jurisdiction over Defendant:* Tagging

• • Either it exists based on tradition
  • Or it exists based on weak Shoe (tagging & voluntary presence)
• Consent from Defendant = Jurisdiction
• Domicile = Jurisdiction

Otherwise, use Shoe test: (1) Minimum Contacts (2) Relatedness (3) Reasonableness

Shoe: International company, though not incorporated in Washington, had employees in Washington who operated business there. Washington sued International Shoe in Washington.* Holding: There was personal jurisdiction.

• Rule: Minimum contacts in the state so as not to offend traditional notions of fair play and substantial justice.
• Reasoning: Where a party establishes sufficient minimum contacts with a state by enjoying the benefits of that state, there is jurisdiction. The business activities of International Shoe were enough for minimum contacts.

1. MINIMUM CONTACTS (Sufficient minimum contacts w/ forum state)
   1. Purposeful availment: Was there purposeful availment of the state?
      1. Mere existence of contractual relationship is not automatically minimum contacts.
      2. The Defendant has to be targeting the forum state and privileging himself to the protections of that state.
      3. Unilateral action of consumer is not enough.

Denkla:

McGee: Resident of California purchased a life insurance policy & then when he died, insurance company refused to pay saying he committed suicide. Insurance company had no offices in California.* Holdings: CA has jurisdiction.

• Rule: Must have minimum contacts with a state and not offend traditional notions of fair play and substantial justice.
• Reasoning: Executing a contract in CA is enough for personal jurisdiction. CA has an interest in protecting its residents from insurers.

1. 1. 1. A contract with a forum resident does not mean that you automatically have minimum contacts. You must ask about facts & circumstances of the state. (Where/when was the contractual negotiation, solicitation and performance made?)

Burger King: A franchise was started in Michigan by Plaintiffs who are Michigan residents. BK headquarters is located in Florida and contract with Plaintiffs stated all legal disputes are resolved in Florida courts. When the franchise fell through, BK sued in FL. Defendants challenged based on lack of personal jurisdiction.* Holding: There is personal jurisdiction in Florida.

• Rule: Purposeful availment. Executing a contract in the state is enough.
• Reasoning: Defendants knew the contract was being executed in FL.

1. 1. 1. Active v. Passive
         • Active (usually businesses): Defendant dictates or negotiates terms of the deal. Do more. More likely to have personal jurisdiction over Defendant.
         • Passive (usually consumers): Order by phone, mail. Just accept terms of seller. Usually no personal jurisdiction.

Chalek: Issue was whether out-of-state residents who order a product from an Illinois business may be sued by that business in an Illinois court.* Holding: No personal jurisdiction because Defendants were classic passive buyers who merely ordered a product from an Illinois business.

Tak How: MA had personal jurisdiction over Tak How, a Hong Kong company, in the death of a MA resident in their hotel in Hong Kong because Tak How actively targeted MA residents and had continuous contact with Kiddie Products, located in MA.

1. 1. Stream of Commerce (Manufacturer  Distributor  Consumer): When a business other than yourself puts products in another state. It matters where it is being sold, not purchased.

Asahi:* Four justices find sufficiency with the mere knowledge that the product being sold would end up in the stream of commerce.

• • Brennan (Stream of Commerce): If reasonably anticipated that the product will flow into the forum state, it is enough. (One product into forum state will be sufficient for our analysis.)
• Four justices believe that the manufacturer must intend to serve the market in the forum state to have availed him in that forum.
  • O’Connor (Stream of Commerce +): Placement of product in stream of commerce is not enough. Needs intent or purpose to serve the market (advertise, design, advise). Targeted at the forum state. Awareness of the forum as a destination of your product is not enough.

Nicastro: Does targeting a region of the county count as targeting a state? No law on the subject. Kennedy says NO. Ginsburg says YES. Court could not agree that targeting a region was targeting a state.

1. 1. Effects Test
      1. Use this test when dealing with intentional conduct, not mere negligence. Use when Defendant knows action could cause harm in forum state because that is where the Plaintiff is. Actions are targeted towards and are about Defendant in the forum state apart from existence of Plaintiff there.

Calder: Article written about Plaintiff who resides in California. CA is both the focal point and the location of the harm suffered. CA had jurisdiction over Defendant even though they did not reside in CA because their intentional conduct (libel) from our of state caused injury to Plaintiff in CA.

Walden: * Justice Thomas declined to find jurisdiction (minimum contacts) even though the cop knew the Plaintiffs were in Nevada because there was no connection between cops acts and the state of Nevada.

1. RELATEDNESS
   1. Does the claim arise from contract or is it related to the activities in the forum state? If yes, SPECIFIC JURISDICTION. IF NO, GENERAL JURISDICTION.

#

1. 1. Specific Jurisdiction: Plaintiff can only sue when claim arises out of or relates to Defendant’s contacts with the forum state.
      1. Analyze the relationship between the contacts with the state and the claim you are making. Does the claim being made arise out of those contacts?
      2. Figure out arising under by the substantial connections test: Ask yourself – Is there some significant connection between the claim and the contacts with the forum state? (Use common sense.) If yes, then relatedness is satisfied.

#

1. 1. General Jurisdiction: Contacts are so substantial to make Defendant at home in the forum state. No reasonableness or relatedness test required.
      1. Fair to sue on any claim against Defendant.
      2. Corporations are subject to general jurisdiction in the forum state if:
         • They are incorporated there
         • Principle place of business is there (where the brain if the company is, where the officers and directors who make decisions reside, where the bosses are.)
      3. People are subject to general jurisdiction where they are domiciled.
      4. Reasonableness prong does not apply to general jurisdiction.

# REASONABLENESS

1. 1. Needs to satisfy minimum contacts in order to conduct reasonableness test.

#

1. 1. Gestalt Factors: (5)

1. Burden on the Defendant
2. Forum state’s interest in adjudicating the dispute
3. Plaintiff’s interests in obtaining convenient and effective relief
4. Interstate judicial system’s interest in most efficient resolution of controversies (where are the witnesses and evidence)
5. Interest of other states in furthering their substantive policies (balance competing interests of the different states)

1. 1. Defendant has to make a compelling case for unreasonableness. Has to be grossly unreasonable to not have jurisdiction if minimum contacts and relatedness are met.
   2. If exercising jurisdiction is very reasonable, you can lessen the requirement for minimum contacts (Brennan). Always need minimum contacts but if the contacts are weak but it is super reasonable to allow jurisdiction over the Defendant, they will let the weak contacts go.

NOTICE/SERVICE OF PROCESS/OPPORTUNITY TO BE HEARD

Notice must satisfy the constitutional requirements (14^th Amendment – Due Process Clause)

Mullane: sets forth the basic constitutional standard for notice. NY law established common trust fund and all judicial settlement of accounts is conclusive. There was a petition for settlement and notice was given by publication. The statute had been sent months before to people with known addresses.* Holding: Notice is not sufficient.

• Rule: Due process is met if notice is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
• Reasoning: Publication was not enough in this case. They had the addresses of known parties so they should have sent notice through mail. Publication for unknown beneficiaries was sufficient. Different notice is required depending on the circumstances of those being notified.

1. Reasonableness Analysis
   1. How effective is the notice?
   2. How burdensome is it on the party that is giving the notice?
   3. What is the state’s interest? What is the individual interest of those being given notice?
   4. Alternatives?

Flowers: Certified mail for tax notice returned twice. Government seized and sold Defendant’s property.* Holding: Notice is not reasonable.

• Rule: If the state knows the address and name, Roberts spells out what is reasonable.
• Reasoning: If the state knows the notice fails regarding the taking of an interest as important as a home, it must take reasonable steps to provide notice as practical.

Notice must satisfy statutes as well:# Rule 4(C), (E), (H) for federal (look at to know if someone has been properly noticed)

1. Rules are different if serving individuals or corporations:
   1. Individuals: (1) Personally (2) Leave at dwelling or place of abode (3) Deliver copies to an agent (See Rule 4(E)(1) if state court allows mail service)
   2. Corporations/Partnerships/Associations: (1) By borrowing rules for servicing individuals from the State (2) Rule 4(H)(1)(8) by delivering a copy to office, managing or general agent, or any other agent authorized by appointment or by law.

Affinity Card: Served non-officer of business owned by the same owner and in the same office as business intended to be sued. Court should resolve any doubt in favor of party seeking relief. Actual notice will not, in itself, cure an otherwise defective notice.

Opportunity to be Heard

What process is someone entitled to a party that is going to be harmed in a particular way?

Doehr: Bar fight and Plaintiff attaches Defendant’s house in tort claim.

Eldridge:

Process due in private claims:# Consideration of private interest that will be affected by the prejudgment measure. Smaller interest = less process due (was the Defendant’s interest big or small)

1. Examination of the risk of erroneous deprivation through the procedures that are under attack and value of changing the procedures. Pre-attachment hearing? (Court tries to figure out what the odds are that the process will make a mistake, and what the value is of doing something different)
2. Interests of the party seeking prejudgment remedy? Are there exigent circumstances? With some consideration for the government. (What does the Plaintiff have at stake here? Does the government have an interest in making this process not too costly?)
   1. If government is trying to do the taking, this prong is the same except we consider what is the government’s interest.

Facts and context will matter a lot (the things being taken away and the type of dispute). Flexible standard. The specifics of the thing that one party wants to take from the other is going to effect how you analyze and come out of the 3-step analysis.

SUBJECT MATTER JURISDICTION

State courts have general SMJ.

Fed  State. Any federal claim can originally be filed in state court.

State  Fed. Must have basis for SMJ.

Two ways to get into federal court:#

1. 1. 1. Arising out of federal question
      2. Diversity & 2(a) Alienage

Arising Under Federal Question: §1331* Constitution requires possibility of arising out of federal question

• Statute

Osborn: Very broad for federal question constitutional requirement. (Statutory requirement is narrower)

1. Creation Test: Cause of action is created by federal law

Assume a cause of action is not federal, unless stated otherwise. Meaning assume cause of action is from state law.* If Plaintiff is bringing a federal cause of action then federal question jurisdiction is satisfied because a federal cause of action is created by federal law.

1. Essential Federal Ingredient Test (Pat Benetar Test or Grable Test)
   1. If you have a state law claim, you must ask:
      1. Does the claim necessarily involve a federal issue?
      2. Is the federal issue disputed?
      3. Is the federal substantial? Does the federal government have a substantial interest?
      4. Would giving federal jurisdiction upset the federal and state court congressional balance? If it would lead to a lot of cases following from state court to federal court, it would upset the balance.
         1. Well Pleaded Complaint Rule: Cannot consider anticipated possible defenses. When you are analyzing FQJ you are not going to consider the anticipated or actual defense of the Defendant. Doesn’t matter. Not part of the complaint.

Mottley: Mottleys were in an accident on Defendant’s railroad. The Defendant gave the Mottleys lifetime passes to settle the claim. Congress then passed a law prohibiting this activity and the railroads stopped honoring the free passes. Mottleys sued.* Holding: No subject matter jurisdiction

• Rule: Must arise under the laws of the constitution or the laws of the U.S.
• Reasoning: The dispute was one of contract and no diversity. The defense arose under federal law because of the new legislation. But the heart of the action was in contract.

Diversity: §1332* Must meet (1) Diversity of citizenship and (2) Amount in controversy

• Diversity Citizenship: Claims between citizens of different states. Must be present in the state & must be domiciled in the state.
  • Must have complete diversity – Constitution requires minimal diversity but §1332 requires complete diversity.
  • Domicile requirements are: (1) Present in the state (2) Intent to stay in the state (Bank One factors)
  • Domicile is determined at the time of filing (Senor Frogs)
    • Things that happen after the time of filing are important because it shows intent at time of filing
    • Start with domicile when you’re born & keep it until a new one is established
  • Corporations are citizens of state where they are incorporated and where they have principle place of business (nerve center)
    • Place of incorporation: where the corporation was legally founded
    • Principle place of business: where the executives are
  • Partnerships are citizens where the partners live. Look through the partnership. Determined by the citizenships of all the partners.

Complete Diversity: No Plaintiff can have same citizenship as any Defendant

Minimal Diversity: If one Plaintiff has different citizenship from one Defendant. Constitutional standard. Broad.

Hertz Corp: Court held the principle place of business/nerve center is where a corporation’s officers direct control & coordinate the corporation’s activities, not simply an office where the corporation holds its board meetings.* Statute language supports this approach

• Legislative history supports this approach
• It promotes administrative simplicity

Grupo:

Alienage: §1332(A)(2)* Complete alienage provision

• All U.S. citizens on one side versus all aliens on the other

1. Amount in Controversy: $75,000+ (does not apply to FQJ)
   1. Not a constitutional requirement. Gate keeping requirement to keep out small claims.
   2. The sum claimed by Plaintiff upon filing closes the inquiry if made in good faith
      1. If facts show Plaintiff cannot recover more than $75,000, courts assume Plaintiff claimed in bad faith. The Plaintiff knew or should have known that his claim did not satisfy the minimum
      2. HOWEVER, if Plaintiff could not have known at the time of filing then it is good faith

Coventry: Plaintiff could not have known at the time of filing that they could not recover in minimum amount in controversy since a 3^rd party vendor provides the invoice that caused the error. Amount was determined in good faith so there is SMJ.

1. Must look at claims individually, except Plaintiff can aggregate all the claims against one Defendant, not all Defendants.
   1. One party can aggregate all claims against any one Defendant to reach minimum of $75,000+ even if they are not factually related. However, one party cannot aggregate claims against different Defendant (unless joint & several liability case)
   2. Separate Plaintiff’s cannot aggregate claims against single Defendant (unless we are talking about single title or right where all Plaintiff’s have single or common title in which they are divided interest)

Removal: §1441/§1446/§1447* When Defendant (and only Defendants) removes a matter originally files in state court to federal court, it requires SMJ analysis ***ONLY STATE TO FEDERAL***

• All Defendant’s must join (unanimity rule)
• If every claim cannot be removed, none will be removed
• Goes from state to federal in the district where the state court sits
• Only works where the Plaintiff could have originally brought the matter in federal court (must have FQJ, diversity or alienage) must have SMJ analysis
• HOME STATE RULE, UNANIMITY RULE

Remand: When case moves from federal court to state court following a removal ***ONLY FEDERAL TO STATE***

Supplemental Jurisdiction:* Every claim in the case must have SMJ

• Original Jurisdiction: Standalone. Has federal jurisdiction on its own merits.
• Supplemental Jurisdiction: Tagalong
  • Must have a relationship with a standalone claim
    • CNOF (common nucleus of operative fact) = same underlying facts
    • Is the tagalong claim part of the same case as the standalone claim?

Gibbs: A district court may exercise supplemental jurisdiction over additional claims over which the court would not independently have SMJ but that arise out of a CNOF such that all claims should be tried together in a single judicial proceeding. Discretion in hearing supplemental jurisdiction claims.* Avoid exercising SMJ to hear supplemental claims if state claims predominates or concerned about fairness to litigants (jury confusion)

• If standalone claims are dismissed before trial, state claims should be dismissed
• If the standalone claims are dismissed during trial, state claims should not be dismissed
• Justice Brennan: Supplemental jurisdiction is okay
• Court changed their minds after Gibbs: (1) Constitutionally permitted (2) Must be state that permits it in certain circumstances

Is there a statute that allows it?

§1367 – GRANT* This grants courts statutory authority to exercise supplemental jurisdiction over tagalong claims that are part of the same case or controversy as the standalone claim (CNOF)

§1367(b) – TAKEAWAY* Takes away jurisdiction. Applies in certain circumstances: (1) only if original standalone claim is founded solely upon diversity, and (2) only for certain claims made by Plaintiffs or parties joining on the Plaintiff’s side. Limited to diversity & alienage.

§1367(c) – DISCRETION* Just because a court may authorize supplemental jurisdiction over a tagalong claim does not mean that it has to. It has discretion to say “no thanks” and remand those cases to state court.

• It should ask: Does the tagalong claim raise the issue of state law? Does the tagalong claim substantially predominate over the standalone claim? Has the court dismissed the standalone claim already? Are there exceptional circumstances with regard to the exercise of supplemental jurisdiction?
• Why does this make sense from a policy perspective?

ERIE DOCTRINE

Determining the law in federal court

• 28 USC §1652: RDA – Use state law including statutes and case law unless there is a federal statute.
• 28 USC §2072: REA – Authorizes the FRCP. These are rules passed by Supreme Court and FRCP, which conflicts with state law.

Swift v. Tyson: Federal courts sitting in diversity, in the absence of a state statute, could determine, on their own, what general law was. They did not have to apply state law. Each judge looks at common law sources to make independent judgments as to the proper rule.

Erie v. Tompkins: Destroys Swift v. Tyson. There is no general federal common law. Federal courts decided state law claims apply state substantive law (forum state) and federal procedural law, unless a federal statute is present.

1. You use “choice of law” rules of the forum state:
   1. Horizontal: If there’s a dispute and you need to determine which body of state law applies. We do not care about this for Erie.
   2. Vertical: When you ask, for a given issue in a given case, are we applying federal or state law?
2. Federal courts are only bound by the state’s highest court. Otherwise, they must use the lower court decisions to predict what it believes the state’s highest court would do.

STEPS OF ERIE ANALYSIS# Does the federal rule control and conflict? (If you determine there is no conflict, state law wins but you should continue to analyze as if there was a conflict.)

1. What is the source of the federal rule? Follow analysis depending on the source of federal law. See below.

US CONSTITUTION: Control and conflict? If yes, apply the Constitution. If no, apply state law.

TRACK ONE:

FEDERAL STATUTE: Conflict? If yes, is it rationally classifiable as procedural? If yes, then apply the federal statute. If no, then apply state law.

Stewart v. Ricoh: Conflict between federal and state court on a forum selection clause in a contract. The Court therefore held that we must apply the federal statute, assuming it is constitutional because the Supremacy Clause and the RDA.

TRACK TWO:

FEDERAL RULES: Conflict? If yes, is it rationally classifiable as procedural? If yes, run the REA two-prong test:#

1. 1. 1. Does the rule really regulate procedure?
      2. Rule cannot abridge, enlarge, or modify a substantive state right.

If the federal rule passes this test, then it trumps conflicting state law under the Supremacy Clause.

Sibbach v. Wilson: Defendant wanted physical examination done. Plaintiff said no because state law does not require examinations. Supreme Court disagreed with Plaintiff. FRCP is valid if they comply with the REA.

You must ask: Does the rule really regulate procedure and does it modify, enlarge or abridge a substantive right? If yes to the first and no to the second, FRCP wins. If you find that something does not satisfy the REA, then for our purposes, state law wins.

Hanna v. Plumer [Part 1]: Modern application of Erie to the FRCP. MA rule required in-hand service, while the FRCP does not. Which governs? If MA governed, the case would be dismissed. The Court gives us the approach it wants us to follow:# Does it actually control the issue in dispute and conflict with state law? (Remember – in the FRCP setting, the Supreme Court believes in the spirit of federalism. Will read an ambiguous rule narrowly.)

1. If the FRCP controls and conflicts, do the REA compliance analysis. (Does the rule really regulate procedure? Does it enlarge, abridge or modify a substantive right?)

TRACK THREE:

Guaranty Trust v. York: Federal latches v. state statute of limitations. Conflict between federal judge-made law and state law. The court said state law wins if it is substantive (whether it specifically affects the result.) In this case, it did because it dictated the result. Announced the outcome-determinative test.

• Outcome Determinative Test: The outcome of the case in federal court should be the same as it would be in state court. If applying federal law would change the outcome of the case, use the state rule.
  • Before the case started, could you tell that the outcome would be different? If yes, that would lead to forum shopping. Use the state law.
  • THIS TEST PROVES TOO MUCH

Byrd v. Blue Ridge: Federal policies. When you have judge-made law versus state law, there is a role for balancing of interests. Think about the federal interests and the state interest in the rule and the likelihood of whether the outcome will change.* Three step approach:

• • State practice was not clearly substantive;
  • Even if it were substantive, there was consideration that would trump any obligation to follow state law;
  • The outcome would not have been substantially affected by whether it was decided by a judge or jury
• Consider countervailing federal interests. Is it strong enough to outweigh state interest? This is the Byrd balancing test. CHANGED BY HANNA.

Hanna v. Plumer [Part 2]: York’s outcome determinative test is no good. Throws out too much. Instead, what we care about are the twin aims of Erie (to avoid forum shopping and inequitable administration of the law.)

Hanna/Byrd Combo: If applying the federal law will not lead to forum shopping or inequitable administration of the law, the federal law is not outcome determinative and we can apply it without worry. However, if applying federal law will lead to the twin bads, then applying federal law is outcome determinative and we should apply state law unless there is a countervailing federal/state interest, and taking into account the likelihood that the twin bads will result when doing your balancing. Outcome determinative test PLUS interests.

We don’t care if the outcome will change. We care whether the expected outcome in a group of cases will change if people knew about the rule difference in advance.

1. Is there a direct conflict?
2. Is the federal statute constitutional?
3. Modified outcome determinative test
   1. If it would lead to twin bads  USE STATE LAW
   2. If it would not lead to twin bads  USE FEDERAL LAW

SUMMARY JUDGMENT

Is case good enough for trial? Usually made after significant discovery

• No genuine issue of material fact. When a reasonable jury could find for one side on an issue.
• Burden: Moving party bears initial burden of showing lack of genuine issue of material fact. If burden is not met, then SJ is denied.
  • Can satisfy this burden by pointing to a hole in the evidence such that the non-moving party cannot prove all elements of his case at trial, or providing affirmative evidence that the non-moving party cannot prove at trial all elements of his claim.
• Evidence viewed in favor of the non-moving party
• Plaintiff must put forth evidence to support each and every one of the elements of the claim without any issue of material fact. Defendant need only show hat one of the elements is not met or that there is evidence against one of the elements to avoid SJ.

Pleading  Discovery  Motion for SJ

Rule 56: Motion for Summary Judgment* 56(a) Motion for Summary Judgment or Partial Summary Judgment

• 56(b) Time to file a motion
• 56(c) Procedures
• 56(d) When Facts are Unavailable to the Non-movant
• 56(e) Failing to Properly Support or Address a Fact
• 56(f) Judgment Independent of the Motion
• 56(g) Failing to grant All the Requested Relief
• 56(h) Affidavit or Declaration Submitted in Bad Faith

Anderson v. Liberty Lobby: If your burden of proof is higher at trial, then you have to show more than someone else getting SJ against you. “Clear and convincing evidence” standard. Your burden you have at trial if the burden you will have at the SJ stage.

Celotex v. Catrett: When Plaintiff has the burden of proof, if the SJ movant (Defendant) specifically identified the part of the record that demonstrates the absence of a material fact, then the non-movant (Plaintiff) must come forth and show why there is a specific fact establishing a genuine issue for trial. Defendant only has to show there is an absence of evidence to support Plaintiff’s case. Don’t need to show affirmative defenses.

Policy reasons for SJ: Efficiency. Keeps frivolous claims out of court. To pierce the pleadings and to assess the proof to determine whether there is a genuine need for trial.

PLEADINGS

Primary function of pleadings is to notify the other party of your claims and defenses

Policy reasons: Notice, facts that matter can be proved, narrows the issues and allows parties to prepare, screening meritless claims.* Pros of stricter pleading requirements  Fewer meritless cases, easier to mount a defense, reduce the docket load. The more difficult the pleading requirements, the fewer claims will be made and the fewer claims will succeed.

• Cons of liberal pleading requirements  Costly, large amount of initial documents, if you leave out an issue it is a big problem because there is no amendment

Pleadings have to be both factually & legally sufficient:* Factually: Supply enough facts for the litigation to proceed

• Legally: Implicitly and explicitly list all elements of the claim

Rule 8(a): Short and plain statement (“Notice pleading”)

Conley v. Gibson: A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Rule 9(b): Heightened pleading requirement. This is the exception to Rule 8.

Leatherman v. Tarrant: If Rule 9(b) of the FRCP does not require specific pleading of a certain type of claim, then the court cannot interpose a higher standard of specificity. Rule 9(b) only asserts heightened pleading requirements for specific instances (like fraud or mistake.)

TWIQBAL: Must have enough facts to state a claim to relief that is plausible on its face. Retired Conley v. Gibson (which said there only has to be no set of facts upon which relief can be granted.)

Rule 12b: Motions to Dismiss

Seven defenses a Defendant can assert pre-answer if she so chooses:# Lack of SMJ

1. Lack of PJ
2. Improper venue
3. Insufficient process
4. Insufficient service of process
5. Failure to state a claim upon which relief can be granted
6. Failure to join a party under Rule 19

12(g) and 12(h) require the Defendant to assert FOUR defenses in her 12b Motion (AT LEAST) in her first response. If she doesn’t, she cannot assert these again in her answer. (2-5)

** Remember, you cannot waive subject matter jurisdiction. **

12(b)(6) - Motion to dismiss for failure to state a claim upon which relief can be granted* Have to assume everything Plaintiff says is true cannot add facts of your own and can only rely on the four corners of the complaint.

Twombly: We do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Made 12(b)(6) motions easier to obtain.

JOINDER

The joining or two or more legal issues together

COMMON LAW = STRICT & LIMITED

EQUITY = OPEN & FLEXIBLE

1. Does the FRCP allow joinder?

2. Does the court have jurisdiction over the claim? SMJ

3. Figure out SMJ for EVERY claim by using 1331, 1332 or 1367 (supplemental jurisdiction)

• Every claim in the lawsuit must have SMJ, original jurisdiction or supplemental jurisdiction.
• We know supplemental jurisdiction is okay constitutionally if the supplemental claim is part of the same case. However, the Supreme Court says that although supplemental jurisdiction is okay under the Constitution, it is not enough.
  • Must have statutory authority from Congress – 1367

Claim Joinder – When Plaintiff wants to sue for multiple claims in the same lawsuit

Party Joinder – When Plaintiff wants to sue two separate Defendants in same lawsuit

• Rule 18: A party asserting a claim can join as many claims as it has against an opposing party. Claims don’t have to be related. This can be limited by claim preclusion.
  • Policy: To avoid litigation about whether claims are sufficiently related to be joined.

• Rule 20: Persons who may join or be joined. Plaintiffs & Defendants can be joined if:
  • Assert any right to relief arising out of the same T/O
  • Any question or law or fact common to all will arise out of this action
  • This does not permit unlimited joinder of parties. Requires a certain degree of relatedness.
• Rule 20(a): Permissive Joinder by Plaintiff

Once Rule 20 is satisfied, another rule (like Rule 18) can operate to permit joinder claims as to the parties in the lawsuit.

Counterclaims: Claims brought as a reaction to other claims

For example: If A sues B, but B has a claim against A, B might assert it as a counterclaim in the A v. B suit.

This is a request for affirmative relief against an opposing party

Compulsory Counterclaims  MUST BRING

• Rule 13(a): Defines compulsory counterclaims
  • Must arise out of the same T/O
  • Exceptions: Don’t have to bring a claim if the claim is subject to another pending action OR there is no personal jurisdiction
• Three Elements of Compulsory Counterclaims:
  • Must be against opposing party
  • Must arise out of the same T/O
  • Must exist at the time the opposing party’s pleading is served on you

Permissive Counterclaims  MAY BRING

• Rule 13(b): Permissive Counterclaims
  • A pleading may state a counterclaim against an opposing party any claim that is not compulsory
  • Can be raised any time. Not the same T/O
  • Has to have a independent jurisdictional basis

Cross-claims: Claims made between parties on the same side of the “v”

• Rule 13(g): Governs cross-claims
  • Must arise out of the same T/O
  • Co-party is or may be liable to the cross claimant for all or part of the claim asserted

Policy: If not allowed, it would be unfair to Plaintiff if didn’t arise out of same T/O. Cuts down on discovery and trial time.

If, under Rule 18, a proper cross-claim is brought, then any subsequent cross-claims (unrelated) can be joined

** Cross-claims are permissive unless someone makes a cross-claim against you, then you must bring compulsory counterclaims at that point. **

• Rule 13(h): Joining Additional Parties
  • You can bring a person as a party to a counterclaim or cross-claim under Rule 19 or Rule 20.

Same T/O: Must be some relatedness between the original and the added claims* Tests: Is the evidence needed the same to prove the two claims? Would the two claims be considered the same cause of action for purposes of claim preclusion? Logical relationship test

Joinder of Parties by Defendants:* Rule 13(h) and Rule 14(a) allow a Defendant to bring in new parties to the action, but a Rule 13(h) claim must be part of a counterclaim or cross-claim being asserted against an existing party. Rather, a Rule 14 indemnity claim is asserted solely against the new party to the suit.

Third Party Claims: The procedure by which you’d join a third party is called an impleader.

• Rule 14: Third Party Practice
• Rule 14(a)(2)(C): Permits third-party defendants to raise defenses to the main claim as well as the third-party claim, but there are limits.
• Rule 14(a): A claim against a third-party. If the party is found guilty, then the third-party is liable. Court has discretion to allow third-party joinder even if 14(a) is met.

Absent Parties (Compulsory Joinder):

• Rule 19: Required Joinder of Parties
  • 19(a): An absent party SHOULD be joined. Is the party necessary?
    • Complete Relief Prong: Requires more than just a chance of additional lawsuits to make an absentee party necessary. It will be met where any relief between the existing parties themselves would be hollow or meaningless without the absentee’s presence.
    • Can the party be joined? SMJ?
      • If yes, then the third-party is good to join.
      • If no, then go to step three.
  • 19(b): Four factors for when a person who cannot be joined, but the case should proceed anyway
    • Prejudice parties would suffer
    • Reduce prejudice?
    • Resolved as a whole without the party?
    • Does Plaintiff have adequate remedy elsewhere if case is dismissed?
    • Is the party indispensible? Go to 19(b). This is a pragmatic analysis
      • Plaintiff’s interest: Will Plaintiff have another adequate remedy if dismissed? Can state court hear the case if federal dismisses? Does state statute of limitations bar the suit?
      • Defendant’s interest in avoiding multiple/double liability or inconsistent relief.
      • Interests of the absentee: Will third-party interests be affected in a practical way?
      • Public interest of efficiency: If there is a forum where all the parties can be joined in one suit, then Plaintiff should go there.

Intervention:

• Rule 24:
  • 24(a)(2) Intervention of Right: Can be disruptive and may only be allowed if intervening party can add something to make better, not more complicated.
    • A timely motion
    • An interest relating to the property or transaction that is the subject matter of the action
    • An impairment of that interest without intervention
    • The movant’s interest is not adequately represented by the other parties in the litigation
  • 24(b)(1)(B) Permissive Intervention: Can be disruptive and may only be allowed is intervening party can add something to make better, not more complicated.
    • Requires that both actions have a common question of law or fact, but it cannot unduly delay or prejudice the adjudication of the rights of the original parties.
    • The intervention should not be used as a means to inject collateral issues into an existing action.

SUBJECT MATTER JURISDICTION

State courts have general SMJ.

Fed  State. Any federal claim can originally be filed in state court.

State  Fed. Must have basis for SMJ.

Two ways to get into federal court:# Arising out of federal question

1. Diversity & 2(a) Alienage

Arising Under Federal Question: §1331* Constitution requires possibility of arising out of federal question

• Statute

# Creation Test: Cause of action is created by federal law

Assume a cause of action is not federal, unless stated otherwise. Meaning assume cause of action is from state law.* If Plaintiff is bringing a federal cause of action then federal question jurisdiction is satisfied because federal law creates a federal cause of action.

1. Essential Federal Ingredient Test (Pat Benetar Test or Grable Test)
   1. If you have a state law claim, you must ask:
      1. Does the claim necessarily involve a federal issue?
      2. Is the federal issue disputed?
      3. Is the federal substantial? Does the federal government have a substantial interest?
      4. Would giving federal jurisdiction upset the federal and state court congressional balance? If it would lead to a lot of cases following from state court to federal court, it would upset the balance.
         1. Well Pleaded Complaint Rule: Cannot consider anticipated possible defenses. When you are analyzing FQJ you are not going to consider the anticipated or actual defense of the Defendant. Doesn’t matter. Not part of the complaint.

Diversity: §1332* Must meet (1) Diversity of citizenship and (2) Amount in controversy

• Diversity Citizenship: Claims between citizens of different states. Must be present in the state & must be domiciled in the state.
  • Must have complete diversity – Constitution requires minimal diversity but §1332 requires complete diversity.
  • Domicile requirements are: (1) Present in the state (2) Intent to stay in the state (Bank One factors)
  • Domicile is determined at the time of filing (Senor Frogs)
    • Things that happen after the time of filing are important because it shows intent at time of filing
    • Start with domicile when you’re born & keep it until a new one is established
  • Corporations are citizens of state where they are incorporated and where they have principle place of business (nerve center)
    • Place of incorporation: where the corporation was legally founded
    • Principle place of business: where the executives are
  • Partnerships are citizens where the partners live. Look through the partnership. Determined by the citizenships of all the partners.

Complete Diversity: No Plaintiff can have same citizenship as any Defendant

Minimal Diversity: If one Plaintiff has different citizenship from one Defendant. Constitutional standard. Broad.

1. Amount in Controversy: $75,000+ (does not apply to FQJ)
   1. Not a constitutional requirement. Gate keeping requirement to keep out small claims.
   2. The sum claimed by Plaintiff upon filing closes the inquiry if made in good faith
      1. If facts show Plaintiff cannot recover more than $75,000, courts assume Plaintiff claimed in bad faith. The Plaintiff knew or should have known that his claim did not satisfy the minimum
      2. HOWEVER, if Plaintiff could not have known at the time of filing then it is good faith

Supplemental Jurisdiction:* Every claim in the case must have SMJ

• Original Jurisdiction: Standalone. Has federal jurisdiction on its own merits.
• Supplemental Jurisdiction: Tagalong
  • Must have a relationship with a standalone claim
    • CNOF (common nucleus of operative fact) = same underlying facts
    • Is the tagalong claim part of the same case as the standalone claim?

Is there a statute that allows it?

§1367 – GRANT* This grants courts statutory authority to exercise supplemental jurisdiction over tagalong claims that are part of the same case or controversy as the standalone claim (CNOF)

§1367(b) – TAKEAWAY* Takes away jurisdiction. Applies in certain circumstances: (1) only if original standalone claim is founded solely upon diversity, and (2) only for certain claims made by Plaintiffs or parties joining on the Plaintiff’s side. Limited to diversity & alienage.

§1367(c) – DISCRETION* Just because a court may authorize supplemental jurisdiction over a tagalong claim does not mean that it has to. It has discretion to say “no thanks” and remand those cases to state court.

• It should ask: Does the tagalong claim raise the issue of state law? Does the tagalong claim substantially predominate over the standalone claim? Has the court dismissed the standalone claim already? Are there exceptional circumstances with regard to the exercise of supplemental jurisdiction?

CLAIM PRECLUSION

Policy goals: Efficiency, finality, repose, consistency & legitimacy

Claim Preclusion: Treats a judgment, once rendered, as the full measure of relief to be accorded between the same parties on the same claim or cause of action. * Also forbids a party from re-litigating a claim that should have been raised in the former litigation. Claims not actually litigated but should have been.

• • Affirmative defense that must be raised by the party against whom the challenged claim is being asserted.

Elements:#

1. 1. 1. 1. Same Claim:
            1. Transactional Test: (MAJORITY) – A cause of action came to be defined as group of operative facts giving rise to one or more rights of action. Says a claim encompasses all rights to relief with respect to all or any part of the transaction out of which the action arose. Modern version = pragmatic approach.
            2. Primary Rights Test: (MINORITY) – Where the claimant has a separate claim and can file a separate case for each right that is violated.
         2. Same Party/In Privity: Policy reasons behind why we care whether or not they are the same party  We care because we want to bind people who had their day in court the first time around or bind people who are so legally close that we say they are bound too. We want them to have their day in court before they are precluded.
         3. Final, Valid & On the Merits: Assume a final valid judgment on the merits unless Maher says otherwise. If there is none, however, there is no claim preclusion. Finality = trial court’s decision is final until reversed or altered on appeal, or by its own reconsideration. Final means when a trial court has definitely ruled on it – all that remains for the court to do is assess costs and execute judgment.
            1. The first proceeding must have been valid: A judgment is deemed valid if the Defendant had proper notice, the requisites of PJ were satisfied, and if the rendering court had SMJ over the controversy.
            2. The first proceeding must have been on the merits: On the merits includes default judgments, SJ, and directed verdicts.
               1. Exceptions: dismissal, voluntary dismissal, statute of rule does not operate as a bar to another action on the same claim

ISSUE PRECLUSION

Issue Preclusion: Forecloses re-litigation on a discrete issue. Same issues are precluded. Change of facts or change of law will help avoid issue preclusion.

Elements:#

1. 1. 1. 1. Same Issue:
         2. Previous Valid Judgment:
         3. Actually Litigated: Does not apply if it was not litigated. Different from claim preclusion. Actually litigated means they must have formally opposed each other on the issue and submitted it to the court for a decision. Not litigated if it was admitted.
         4. Decided and Necessary: Decided means that if the particular issue was not actually decided in case one, no issue preclusion. The issue that was decided must be necessary to the judgment in case one. If a court’s decision of an issue can be excised from the judgment without altering the outcome of the case, then that issue was not necessary to the judgment. If the issue is dispositive, then it is necessary.

Limits Against Whom: Preclusion is subject to due process. Cannot assert issue preclusion unless the target was in case one or in privity. People need their day in court.

Limits By Whom: Governed by the old concept of mutuality. Mutuality says that the party invoking issue preclusion must have been bound by the judgment the firs time. This is not the rule anymore.* New Rule = Non-Mutual Issue Preclusion OR Defensive/Offensive Issue Preclusion

• • Defensive: You don’t need mutuality
  • Offensive: You can only use mutuality if you satisfy some discretionary limits
• Reminder about the difference between the two types:
  • Defensive  When a defending party seeks to prevent a claimant party from asserting an issue that the claimant party has previously litigated and lost to an earlier and different defending party.
  • Offensive  When a claimant party works to foreclose the defending party from litigating an issue that the defending party previously litigated and lost in an action with a different and earlier claimant.

* Ask:

• • Could the Plaintiff have joined in a prior suit? If yes, this weighs against allowing offensive issue preclusion.
  • Did the Defendant have an incentive to litigate the prior suit fully and vigorously? If not, this weighs against allowing offensive issue preclusion.
  • Is the judgment from the prior suit inconsistent with other previous judgments? If yes, this weighs against allowing offensive issue preclusion.
  • Were the procedural opportunities in the prior suit for the Defendant more limited than the procedural opportunities in the present suit? If yes, this weighs against allowing offensive issue preclusion. (The procedural limits the court cares about are discovery of evidence or productive of evidence that affected their ability to defend.)