Civil Procedure Barbari

I.

Personal Jurisdiction

a. Pennoyer i. Issue What states can we sue the defendant in? ii. Same Analysis whether state or federal court iii. Whatever court is chosen it must have power over: The defendant or defendants property to be valid personal jurisdiction b. Three kinds of Personal Jurisdiction i. In Personam court has power over the defendant ii. In Rem court has power over defendants property because could not get power over the defendant iii. Quasi-in-rem c. Due Process sets boundaries for power court can extend in three kinds of PJ i. If power falls within due process valid PJ full faith and credit Constitutional analysis ii. If power falls outside due process Unconstitutional no full faith and credit invalid PJ d. State statutes define ability of due process for PJ i. Does a statute grant PJ long-arm statute if NO NO PJ; if YES go to the constitutional analysis to determine valid or invalid PJ CONSTITUTIONAL ANALYSIS: DUE PROCESS FOR STATES ii. In Personam PJ can be broken down two ways: 1. General Jurisdiction defendant under courts jurisdiction anywhere in the world 2. Specific Jurisdiction defendant sued on claim that arises from activities in the forum state a. The claim must relate to action in forum state and hold court jurisdiction in the activity state A. CONSTITUTIONAL LIMIT OF PJ IN THE FORUM STATE a. Constitutional Analysis Due Process Analysis i. Principles from cases to determine this analysis - PENNOYER: raw physical power/traditional basis of PJ: ii. Defendant was served with process in the forum presence a. Had to be present in forum when served in state b. Gives general jurisdiction iii. Defendants agent was served while in Forum State iv. Defendant is domiciled in the state v. Defendant can consent to jurisdiction b. Law expanded traditional basis for presence as mobility of people became easier with growing technology - HESS V. POLANSKI: o Driving motor vehicle in state and parties are in an accident defendant, by actions, appointed a state official for service of process, agent mailed service to defendant court upheld PJ o Statute: NON-RESIDENT MOTORIST ACT includes implied consent to PJ true in every state

Implied Consent by consenting to use of states roads and privileges of the state you are consenting to PJ INTERNATIONAL SHOE: New Doctrinal Formula (1945) o Such minimal contacts with forum state so that exercise of jurisdiction does not offend the traditional notions of fair play and substantial justice. Flexible led to expansion of jurisdiction Clear you can serve process on a defendant outside the forum as long as defendant has min K w/ forum not offend trad/ not/ of FPSJ Does not overrule Pennoyer, rather in addition to traditional basis element (1) Contact Part (2) Fairness Part MAGEE: (1957) o Texas insurance company, sold 1 contract to person in California, who sued for breach of contract, in California, the court upheld jurisdiction. o Defendant solicited the contract from California o Plaintiffs claim Arose from Ds Contact with forum relatedness Because of relatedness there is jurisdiction o States Interest in providing citizens with jurisdiction in California HANSON: o Contact must result from PURPOSEFUL AVAILEMENT D reaches out to the forum state like Magee, Hanson. Only contact with Florida in DE case was woman moved there WORLDWIDE VOLKESWAGON: (1980) NO PJ NO Purposeful Availement o Ps rear ended in Oklahoma while moving from New York o D only does business in Connecticut, New York, and New Jersey and Messina NY (Seaway Motors D2) o D never reached out to Oklahoma, only got there because P drove there in car they bought from D. o ISSUE Foreseeable a car will be driven out of area of business, not enough. Court says need Foreseeability D will be sued in OK. CALDER V. JONES: D need not enter forum to meet international shoe test o Florida D caused an effect in CA by defaming P in an article BURGERKING: Contract case in Florida o Ds two people from Michigan operating business franchise of BK sued in Miami PJ upheld Inter Shoe Test: Contact Fairness o Must have a relevant (1) Contact, before look at (2) Fairness, party of test o Contact Ds reached out to FL to have a 20-yr contract with BK for franchise o Fairness D should not be hailed into court as to little guys from MI Burden on D to show: forum is so gravely inconvenient that they are at a severe disadvantage in litigation being held in forum state. ASAHI: Stream of Commerce o D makes valves in state A, sell only to state B. State B manufactures and puts As valve into their tire and sells tire to states C, D, and E. Valve ends up in C, D, and E, but D did not reach out thereare they purposefully availing themselves to being sued in C, D, and E?

o 2 Arguments: No Law on this matter: have to apply both approaches from opinions of the justices: Brennan Approach: there is a contact if D puts product into a stream of commerce and reasonably anticipates it will get to forum states of C, D, and E. OConnor Approach: need Brennans approach plus something more Intent to serve (states C, D, and E) forum state: i.e. setting up a service station. BURNHAM: CA and NJ Does CA have General Jurisdiction over NJ? o D served in CA, does the Traditional Basis survive on its own, or is Inter Shoe necessary? o 2 Approaches: Scalia Approach: Presence alone when served is valid no need to apply Inter Shoe Test of Min Ks Brennan Theory: Must apply Inter Shoe Test every time Traditional Basis does not apply fully anymore. All 9 justices agree CA has GJ, question over SJ Brennan said in 3 days D uses enough of states benefits to be served with GJ General Jurisdiction GJ if D has continuous systematic ties with the forum then GJ can apply. Brennan If D in forum for 3 days can be served outside of that state anywhere in the world for a claim that arose from forum state with valid jurisdiction (GJ). WRAP UP: Contacts Analysis: o Do any of Traditional Basis apply? If any do apply not necessary to apply Inter Shoe If they do not apply necessary to apply Inter Shoe o If using Inter Shoe if there a relevant (1) Contact, between D and the Forum: two factors: (1) Must result from Purposeful Availement (2) Must be Foreseeable the D could be sued in the Forum o Fairness: is Forum Jurisdiction Fair? Factors: Relatedness Does Ps claim arise from the Ds contact If it does Specific Jurisdiction (SJ) can be applied If it does Not only GJ can be applied Inconvenience for the D so gravely inconvenient that it creates severe disadvantage for D. States Interest Does the state have an interest in protecting its states citizen (P) Ps Interest Interest of court in Efficiency Interstate Interest in shared substantive policy Constitutional Analysis: o Does a state statute allow specific jurisdiction?

o Every state has a statute that allows GJ by Traditional Basis Non-Resident Motorist Act SJ o In addition all states have (Long-Arm Statutes) allowing jurisdiction to go outside boarders to get D broader than non-resident motorist But still SJ: determined by a laundry list of examples for SJ o State has Jurisdiction over a D who commits a tort in the state i.e. Where injury occurred Where was product made that caused injury Was it made in another state B. IN REM Jurisdiction over Ds Property a. Seizing Ds property to have jurisdiction over D b. Suit is about who OWNS that Property: Question for the court c. Quasi-in-Rem No question of ownership no dispute D owns the property in question - PENNOYER MITCHELL V. NEFF: o Using property to hail owner into court as jurisdictional basis o Would have worked if court seized property in beginning of the case litigation o Holding in Pennoyer In Rem and Quasi-in-Rem Valid if seized before case o Statute Every state has An ATTACHEMENT STATUTE over property the D owns or claims to own to seize to hold jurisdiction over the D - SCHAEFFER: o Seize property at outset of litigation, but in addition, D must have Min. Ks w/ Forum State meeting Inter Shoe in addition to In Rem/Quasi-in-Rem o Bottom Line with In Rem and Quasi-in-Rem Must have valid Inter Shoe Test.

II.

Notice service of process, process required

A. Service of Process FRCP 4 a. Process consists of: (1) a summons and a (2) copy of the complaint, served to the D i. Summons court document of power over the D b. Service can be made by any non-party who is at least 18 years old c. How to serve a human being 3 choices: FRCP 4(e)(2): i. Personal Service in forum state ii. Substituted Service must be at the Ds dwelling, usual abode. Service must be made to someone of suitable age and discretion, who resides there. iii. Serve the Ds Agent by contact; by law non-resident motorist statute, which gives the state ability to appoint an officer for providing service. d. FRCP 4(e)(1) can impose a method that is permitted by state law which may provide for other means of valid service of process e. Serving a Business or a Corporation: 4(h) serve a manager or general agent; a person with enough job responsibility to be able or allowed to transmit important documents like a summons. f. Waiver of Service 4(d) by mail, the process and waiver, by regular mail with self addressed envelope for D to mail back to the P. i. If D fails to mail back waiver form then P will serve process on D and D will have to pay for cost of providing service.

III.

MULLANE (1950): o Notice must be reasonably calculated under all the circumstances to give the party notice of the proceeding o If all things have been followed and D does not receive not unconstitutional unless P is aware of D not receiving service. JONES V. FLOWER: o If P is aware D did not receive service then P may have to take other measures to provide adequate service otherwise it is unconstitutional.

Subject Matter Jurisdiction

a. PJ we can sue D in a particular state: jurisdiction over parties b. SMJ what court do we go to when PJ established in a particular state State or Federal Court? Jurisdiction over the claims. A. State Courts: a. Can hear any kind of case, generally. b. Some federal question cases that must go to federal court (Bankruptcy, Fraud, etc.) cannot be heard in State Court, however most federal question cases can be heard in State Court. c. Federal Courts can only hear certain kinds of cases: limitations to get into Fed Ct. B. DIVERSITY OF CITIZENSHIP: 1332(a)(1) of judicial code (statute not FRCP) a. Two things for Diversity: i. Citizens of different states ii. Amount-in-Controversy in excess of $75,000 C. Citizens of Different States Requirement Rules: a. Complete Diversity Rule there is no diversity if any P is a citizen as the same state as any of the Ds b. Citizen of Human Being natural person U.S. Citizen is a citizen of the state in which that citizen is domiciled. i. Domicile Human Being take citizenship of parents until age of majority 1. Physical Presence of that state 2. Intent to make state Permanent Home a. Can only have One domicile at a time b. These two elements are BOTH necessary for valid Domicile i. Physical Presence ii. Mental Intent ii. Domicile Corporation have citizenship not domicile 1. 1332(c)(1) have citizenship where incorporated (that state) and where corporation has its Principle Place of Business (PPB). 2. Can have two citizenships, unlike human Business can have citizenship of state where: a. Incorporated b. PPB - HERTZ: o PPB court says The nerve center of Business place from where the business is directed. o Unincorporated Businesses: LLC, etc. Citizenship defined by the citizenships of Humans of the Business, the members or partners citizenships. Common Law if majority of partners citizenship in PA Business PA

D. AMOUNT-IN-CONTROVERSY EXCESS OF 75K a. Claim itself no including court fees b. Ps claim governs unless it is clear to a legal certainty that P cannot recover more than 75K c. Claim Aggregation have to add multiple claims to get over 75K; aggregate Ps claim if 1 P v 1 D claims can be completely unrelated to each other. d. If 1 Ps Complaint: Claim 1 40k for tort, and Claim 2 50K for assault: meets amount-in-controversy e. If Multiple Ps or Multiple Ds cannot aggregate claims in order to exceed 75K f. With Joint Claims uses total amount of joint claims can be with multiple parties if exceeds amount-in-controversy then valid allowed to aggregate with joint claims. E. Federal Question 1331 a. Citizenship and Amount-in-Controversy are irrelevant to get into Federal Court, if there is a proper Federal Question by this statute. b. Case must Arise out of Federal Law i. Well-Pleaded Complaint Rule look at complaint alone, only at claim itself, ignoring other parts the claim must arise under federal law. ii. Is P enforcing a Federal Right? 1. If Yes, Ps claim meets Well-Pleaded Complaint Rule. - MOTLEY (1908): Railroad suit where they are given life-time passes to ride train for free. o U.S. Federal Law RR cannot give away free passes o Motleys sue RR Complaint alleges: (1) RR is breaching contract that allows them to ride for free by not recognizing pass agreement; (2) Federal Law about RR passes does not apply to P. o Not a Well-Pleaded Complaint not enough to just mention a Federal Law, but have to be defending a right give from Federal Law. o Having to be enforcing a right for Federal Question to give valid Federal Jurisdiction F. Supplemental Subject Matter Jurisdiction (Supp SMJ) a. Case in Federal Court must have met either 1331 or 1332(a) b. This deals with multiple claims meeting Fed. Juris. i. Every claim in a case must meet Federal SMJ ii. Every claim must address Federal Question (1331) or Diversity (1332) iii. What if additional claim, to an original claim, does not meet Federal Jurisdiction, when the original claim already does meet one of 1331 or 1332 1. Try Supp SMJ a. 28 U.S.C. 1367: lets Federal Court hear a claim that otherwise could not go to federal court because it does not meet the federal question or diversity requirement for FSMJ 2. However the underlying, original claim, must meet 1331 or 1332. - UNITED MINE WORKERS V. GIBBS o Claim 1 based on Federal Law: meets (FQ) (1331) o Claim 2 based on State Law. o Claims 1 and 2 arose from the same FQ o Claim 2 does no invoke FQ (1331), or Diversity (1332) but court allows it into Fed Court because it shares a Common Nucleus of Operative Fact with Claim 1 o 2 is Closely related Factually to 1

o Common Nucleus is always met by claims that arise out of the same transaction or occurrence. From Gibbs Upheld today by 1367 which was not enacted at the time of Gibbs - Steps: If there is a claim that itself does not get into Federal Court because FQ not met, Diversity not met, then look to 1367 o Does 1367(a) grant Supp. SMJ? Yes, if it meets Gibbs Test: Common Nucleus o Does 1367(b) take away Supp SMJ: certain kinds of claims are barred because of (b) 1367 (b): only come up in Diversity Cases (1332) Only Barres claims by Ps: o Against parties joined under FRCP 14, 20 o Against a FRCP 19 P o Against a FRCP 20 P 1367 (b): does not apply to claims in Federal Court due to FQ(1331) G. Removal: a. Allows a D to have state court case Removed to Federal Court System Change of Venue b. Removal governed by 1441, 1446, 1447 statutes of 28 U.S.C. c. Removal Rules: i. A case is removable if it meets FSMJ: 1331 or 1332 ii. You cannot remove a 1332 Diversity case if any D is a citizen of the Forum to be removed to. 1. Diversity (1332) and Citizenship of Forum not permitted for removal 2. All Ds must agree to removal 3. Can only remove to Federal District that embraces that state court 4. Must remove within 30 days of SERVICE of document that makes the case removable. a. Document making removable usually the Complaint iii. SMJ allows suing in Federal Court

IV.

Venue:

a. Exactly which Federal Court you can go to , when allowed to sue in Federal Court by SMJ b. P filing a case in Federal Court: 2 choices: i. 1391(a) venue for diversity ii. 1391(b) venue for FQ c. Basic Choices: i. (1) May lay venue where in any district, all the Ds reside Sub-Rule: if all Ds live in different districts in the same state then P can sue all Ds in any one of those districts with valid venue, and all Ds would be required to appear even if not their district. 1. Reside Usually your domicile (Human); Corporations (1391(c)) reside in every district where corp. is subject to PJ where it does business. ii. (2) May lay venue in any District where a Substantial part of the claim arose. d. (b) Transfer of Court can only transfer within the same system of Court: Federal to Federal, State to State cannot transfer from Federal Court to State Court.

i. Original Federal Court is the Transferor and where the case is transferred to that Federal Court is the Transferee 1. Transferee Must be a proper venue and have PJ over the D, must be true without waiver. Must have PJ independently. a. This is a way to test for Proper Venue and PJ on exam A. Center of Gravity: e. 1404 Applies when the transferor is a proper venue i. (a) based on convenience and interest of justice ii. Looking for public or private factors where would it make more sense to have this case tried f. 1406 (a) when Federal Court is an improper venue. i. (c) Forum Non-Convenience where a court dismisses the case because there is another court that is way more proper for adjudication not a transfer but a dismissal which is when transfer is not possible, like to another judicial system. - PIPER V. RENO: o Plane crashes in Scotland o Suit ends up in PA o Dismisses to Scotland because they could not transfer to Scotland therefore dismissed to another judicial system. o Foot Note 6 Public and Private Factors for Non-Convenience of Forum.

V.

Pleading

o Documents Parties file A. The Complaint Filed by P; what commences the case a. FRCP 8(a)(1) statement of SMJ b. (2) short and plain statement of the claim c. (3) demand of the relief sought by P from the D d. FRCP 8(a)(2) short and plain statement - TWOMBY AND IQBAL (2009) changed the rules for historical rule of statement of claims o P must plead facts supporting a plausible claim. Facts more than common law for simple notice to D Plausible more detail than traditionally (common law) o Court will ignore conclusions of law (conclusory statements) o Court will use its own experience and common sense to determine whether a claim is plausible e. FRCP 9(b) Allegations of Fraud or Mistake must be read with detail and particularity f. FRCP 9(g) Special Damage P must plead with specificity in claims of special damage; damage that does not normally flow from set of facts i. Car crash 1. normal damages: pain and suffering 2. special damages: nerve damage that caused a permanent erection B. The Response Filed by D a. FRCP 12 after served with process within 21 days D has to serve within 2 ways to avoid risk of being in default i. Responses:

VI.

b. Motions: i. FRCP 12(e) Motion for a more definite statement ii. FRCP 12(f) Motion to strike iii. FRCP 12(b) Affirmative Defenses: Motions to Dismiss : Most important motions 1. SMJ 2. PJ 3. Venue 4. Insufficient Process (Documents) 5. Insufficient Service of Process 6. Failure to State a Claim 7. Failure to Join an Absentee under Rule 19 indispensable party problem iv. FRCP 12(g) & (h) impose strict rule for: Waiveable Defenses 1. 12(b)(2)-(5): Must be put in your FIRST FRCP 12 Response: or these motions are waived and cannot be used again 2. 12(b)(6) & (7): Can be raised at any time before appeal 3. 12(b)(1): is never waived can be raised at any time during suit v. Explanation: D files motion to Dismiss [12(b)(5)]; Motion is denied; filed an answer including lack of PJ [12(b)(2)] and Venue [12(b)(3)] will not uphold in court because not raised in first FRCP 12 Response 12(b)(2)-(5) must be put in first response of want to be addressed during proceedings; otherwise they are completely not able to be discussed. C. The Answer a. FRPC 8(b): 3 ways to respond to Ps Complaint i. Admit ii. Deny iii. Do not know lack of sufficient information to admit/deny iv. Failure to Respond with one of these responses is considered an admission by D that Ps claim is true; fact. b. Part of Answer following: Admit/Deny/Do not Know i. Raising Affirmative Defenses 1. Must be plead with answer if not those affirmative defenses are waived ii. Answer required 2 things: 1. FRCP 8: Admit/Deny 2. FRCP 12(b) Affirmative Defenses

1. By Motion not a pleading 2. By Answer a pleading

Joinder

a. Rules that determine the scope of litigation b. Ways to raise SMJ A. Claim Joinder by P: a. FRCP 18(a): i. P can join all the claims P wants ii. No limit to claims, do not need to be related B. Claim Joinder by D:

a. D becomes a Claimant by: i. Counter-Claim ii. Cross-Claim b. Counter Claim FRCP 13(a) & (b) claim against an opposing party; typically D raises back against P filed with the answer i. Compulsory Counter Claim: FRCP 13(a)(1) arises from the same transaction or occurrence as Ps claim 1. If applicable D must assert that claim in this specific claim cannot be raised later in another suit if not asserted here, it is waived; because it is something that arises out of the same trans/occ as present claim by P ii. Permissive Counter Claim: FRCP 13(b) does not arise from the same trans/occ as Ps claim 1. Does not have to be asserted in this case, can be, however can also be raised properly in a separate later suit; not a must like compulsory. iii. Look to: 1. Diversity? 2. Counterclaim? 3. SMJ? 4. Does 1367(a) allow com counter claim to be valid? 5. Does 1367(b) dismiss case? Is it a diversity case? c. Cross Claim: FRCP 13(g): must arise from same trans/occ as the underlying P claim. C. Permissive Joinder of Parties: FRCP 20 a. Proper Parties: FRCP 20(a) P will use this rule i. 20(a)(1) can have multiple Ps join together and raise at least 1 claim arising from the same trans/occ ii. 20(a)(2) joining multiple Ds is also allowed D. Impleader: FRCP 14 Defending party joining a new party 3rd party D (3PD) a. Allowed to join because 3PD may be liable to the D because of the Ps claim against original D. i. Usually a claim for (1)indemnity to an insurance company or (2)contribution to a joint tortfeasor ii. Two joint tortfeasors: P sues 1, D does not want to be liable for whole suit because D knows there was someone else involved 3PD so original D joins 3PD. b. Impleader 3PD, D claims against 3PD i. Each claim needs to be evaluated as to whether there is valid SMJ for every claim in suit. ii. P can assert a claim against 3PD if it arises from same trans/occ: 1. FRCP 14(a)(3) iii. 3PD can also make claim against original P 1. FRCP 14(a)(2)(D) c. Finding Federal SMJ: necessary for each claim in a suit to evaluate validity i. 1331 Federal Question ii. 1332(a) Diversity iii. 1367(a) Gibbs Test iv. 1367(b) dismissal of Ps claims

VII.

Discovery a. Rules are very liberal to find facts of both parties b. Rules recently updated for electronically stored information (ESI) i. ESI should be treated as hardcopy documents would be treated. c. FRCP 26(a) Parties must produce certain information even when not asked for; three time throughout litigation: Disclosures (1),(2), & (3) d. FRCP 26(a)(1) Initial Disclosure: i. Identify people you may discuss in trial ii. Must give copy of documents, ESI, or tangible evidence iii. Calculation of damages and how arrived at that number iv. Insurance from D e. FRCP 26(a)(2) Expert Disclosures: Production of Expert Witness f. FRCP 26(a)(3) Pre-Trail Disclosures: Everything you are going to raise at trail so no surprises at all during trial proceedings. g. Five Discovery Tools: i. FRCP 32: Deposition: 1. Deposing of a party or non-party; if non-party that person must be subpoenaed 2. This is a sworn oral testimony ii. FRCP 33: Interrogatories: 1. Written questions answered under oath in writing 2. Only for parties iii. FRCP 34: Request to Produce: 1. Written request that someone give you access to opposing information 2. Allowable requests to non-parties upon subpoena iv. FRCP 35: Medical Exam: 1. Needs a court order 2. Can get for a party of anybody in custody of or control of that party ONLY v. FRCP 36: Request for Admission: 1. Request to force another party to admit or deny any discoverable matter 2. ONLY for parties h. Discovery Scope and Limits: FRCP 26(b) i. FRCP 26(b)(1): can discover anything relevant to a claim or defense; any reasonably calculated to admissible evidence ii. FRCP 26(b)(2): Privileged Matter is not Discovery different privileges: Attorney/Client confidential conversations between certain people can be privileged. iii. FRCP 26(b)(3): Work Product Material (Privilege) trail preparation; materials prepared in anticipation of litigation not routine documents. Not discoverable; protected from having to be produced at discovery disclosures 1. Absolute: Opinion Work Product Mental impressions, conclusions, opinions, and legal theories cannot be discoverable. Not work product anyone can make work product not anyone can opine theories.

i.

Pre-Trial Adjudication: FRCP 12(b)(6) Failure to State a Claim & FRCP 56: Summary Judgment i. 12(b)(6): Motion to Dismiss: for Failure to State a Claim 1. Court never looks at evidence 2. Court looks at the face of the complaint (Prima Facie) a. If everything here is Ps complaint were true would the P win the suit? b. Ignores conclusions of law just a factual determination on the merits of the case presented in complaint 3. Works to eliminate cases with sloppy complaint allegations ii. 56: Motion for Summary Judgment 1. Court can look at evidence of case 2. Moving party must show (burden of proof): a. No dispute on the material issues of fact b. Entitled to judgment as a matter of law 3. Showing that parties do not need a trial reason for trial is to resolve dispute of fact if obviously no dispute of facts then no need for trial: Summary Judgment would be properly granted 4. Evidence is prepared by the parties: a. Evidence under penalty of perjury: Depositions/Affidavits/ Written Statements b. Evidence does not include Pleadings which are not signed under penalty of perjury 5. If any dispute upon the facts no Summary Judgment can be granted.