Civil Procedure Outline – 1L

  1. Federal and State Jurisdiction
    1 {Section I Jurisdiction}

    1. Introductory Survey of
      Civil Procedure

      1. US Constitution
        Article III

        1. Section 1:
          The powers of the United States are vested in one U.S. Supreme
        2. Section 2:
          The power of the US Supreme court extends to all cases in law and
          equity arising under the Constitution, the laws of the US (Fed
          Law), and treaties made, cases affecting ambassadors, maritime,
          cases where the U.S. Is a party, issues between 2 or more states,
          between citizens of two sates (diversity), citizens of a
          state claiming land under grants from other states, between a US
          citizen and a Foreigners.
        3. Section 3:
          Treason conviction only on the testimony of two witnesses or a
          confession in open court.
      2. U.S
        Court Structure

        1. State-court
          • Trial Court/Superior

            1. Police Court, Small
              Claims Ct, Tax Ct
          • App.
            Ct./Intermediate Ct.

            1. Looser has a right to
              a single appeal
          • Cal.
            Supreme Ct.

            1. Judges appointed
              first term then elected, can be impeached or recalled by a
              popular vote
          • Cases
            can be removed from state court
            directly to
            US Supreme Ct only if it is a Federal Issue
            and the US Supreme grants cert.
        2. Federal

          • Fed District Ct
            1. At least one in every
            2. Fed trial ct, tax ct,
              Military Ct.
            3. You have a right to
              Appeal to Fed Ct. App.
          • US
            Circuit Ct. App.

            1. 13 Circuits, takes
              appeals from Dist. Ct.
          • US
            Supreme Ct.

            1. 9 Justices
              appointed for life
              (impeached by House, removed by Senate)
            2. Chief Just. Roberts,
              Kennedy, Stevens, Scalia, Thomas, Altio, Ginsburg, Breyer,
      3. FRCP
        Rules 1 and 3

        1. Rule 1 Scope and
          : FRCP govern all civil actions in the US district
          courts. The proceedings should be just, secure, speedy and
        2. Rule 3 A
          civil action is commenced by filing a complaint with the court.
      4. 28
        USC § 1331 – The [federal] district cts. Shall have original
        jurisdiction of all civil actions arising under the Constitution,
        laws or treaties of the United States
      5. § 1332(a)
        1. Fed dist. Cts. Have
          jurisdiction where the amount in controversy exceeds
          $75,000 ($75,000.01 !) AND is between

          • 1 citizens of
            different states,
          • 2 US
            citizens v Foreigners,
          • 3
            citizens of different states where foreigners are additional
            parties; AND
          • 4 a
            foreign sate defined in 1603a

            1. An alien admitted for
              permanent residence is a citizen, FOR THIS PURPOSE, of the
              state that person is domiciled
      6. Civil
        Procedure in Action pg 1-25

        1. Selecting a proper

          • In choosing a court
            you must first determine:

            1. Personal
              : Jurisdiction over the parties, check for
              minimum contacts with the forum state (Fed OR State
              ) AND the party must then receive proper notice due
            2. Venue:
              The case must be heard in any dist where the D resides OR where
              a substantial portion of the events occurred. (In Fed Ct this
              is one of the 13 districts)
            3. Subject Matter
              : FEDERAL ONLY (because states have
              universal jurisdiction over any occurrence within the forum)

              • Diversity: No P is
                of the same state as any D – AND $75,000.01 ($75K alone is not
              • Federal Question:
                Question the US Constitution, Fed treaty, or act of Congress
                (No min $ for fed Question)
        2. Commencing
          the Action…….
  2. Class

    1. General Jurisdiction
      1. Jurisdiction over the D
        irrespective of the nature of the claim
      2. Claims where the suit is
        unrelated to activity in the forum
      3. Continuous systematic
        activities (Int Shoe)
    2. Specific

      1. Jurisdiction because the
        D activities in the state are the subject of the suit
      2. Minimum contacts or
        purposeful availment required
    3. Personal

      1. US
        Constitution Amendment XIV, Section 1

          • All persons born and
            naturalized in the United States subject to the jurisdiction,
            are citizens of the US in the state they reside. They shall not
            be deprived of life liberty or property without due process
            of law
        1. Due
          Process: “The protection and enforcement of private rights,
          including notice and the right to a fair hearing
          before a tribunal with the power to decide the case.” – Black’s

          • Proceedings in a court
            to determine personal rights and obligations of parties over
            whom the ct has no jurisdiction do not constitute due process of
      2. Pennoyer
        v. Neff
        pg 71-82

        1. Jurisdiction over a
          person is valid by their presence within the forum state.

          • “Territoriality
            Rule” – Every state has power over persons and property
            located within the state and may assert power of any D resident
            or not, by personally serving him summons while he is present in
            the forum state, even if only there briefly. (Exception for
            Special Appearance to contest Jurisdiction)

            1. A state CANNOT obtain
              personal jurisdiction by serving process outside the state on a
              non-resident D
            2. A state CAN establish
              in rem OR quasi in rem if the D owns
              property in the forum state AND the property is legally
              attached (put a sign on the property) giving constructive
              notice that legal action is pending.
          • US
            Supreme HELD that improper assertion of PJ violates a D rights
            to due process under XIV any judgment in violation of due
            process is invalid and unenforceable
          • RULE A court
            may enter judgement against a non-resident only if the D is 1
            served personally while in the forum state OR 2 has property
            within the state that is attached BEFORE litigation establishing
            quasi in rem jurisdiction
      3. Three
        Types of Personal Jurisdiction.

        1. In Personum –
          Personal Jurisdiction over the person who must be served with
          due process. Judgment is not limited and can be enforced in any
          state. Since Pennoyer and still today, if you are present in the
          state you can be sued about anything, even if it has nothing to
          do with the state, as long as you are in the state the Ct has In
          Personum over you. (However if the Ct will follow the substantive
          law of the state the incident occurred in if suit in CA was about
          injury in FL then CA court will use FL law for substantive
        2. In Rem – The
          issue is about the property itself eg a claim to title or status
          of the property. Usually land, sometimes property is U.S. v.
          Boxes of Pepsi, Bananas etc.
        3. Quasi in rem
          The action is not concerning the property but the property
          or debt is seized by attachment and the D will only be liable for
          no more than the property used to gain quasi in rem
      4. Hess
        v. Powloski
        pg 82-85

        1. Implied consent to PJ
          by operating a vehicle in the state (most states)
        2. This former MA statute
          held that there was jurisdiction over anyone who operated a motor
          vehicle in the state.
        3. Modern theory not
          “implied consent” but the states simply have the right to
          exercise police power to protect their own citizens from crazy
          out of state drivers
        4. HOLDING by
          driving in the forum state you are submitting to PJ and may be
          served process in ANY ACTION arising out of a motor vehicle
          accident. (Where the line to “ANY” action is drawn is anyones
        5. Rule: State has
          the power to declare that all non-residents who use its highways
          have impliedly consented to submit to the state’s jurisdiction
          for all actions arising from that highway usage
      5. Kane
        v. New Jersey

        1. Out of state motorists
          must sign a paper consenting to allow a NJ agent to accept due
          process prior to driving on the highways
        2. RULE Motorists
          used to be required to consent to PJ before using the states
    4. Jurisdiction
      over individuals can be established by:

      1. Presence in the
        forum state as long as service is made while the D is within the
        state borders
      2. Domicile where
        the person has his current dwelling place OR has an
        intention to remain/return to the state (You can only have
        one domicile at a time)

        1. Residence Some
          states allow jurisdiction based on residence, you can have more
          than one residence.
      3. Consent
        by waiver of personal jurisdiction “OK fine sue me here”
      4. Driving a car
        within the forum (Hess v Powloski)
      5. Committing a tort
        long arm will allow
      6. Owning property in
        the forum
      7. Conducting business
        with minimum contacts (Int. Shoe Co. v. WA)
      8. Being married to a
        citizen of the forum BUT you must have minimum contacts ie
        a NY father sending his daughter to visit mother in CA is NOT
        minimum contacts sufficient for PJ
  3. Class

    1. “Personal Jurisdiction”
      over corporations and Others

      1. International Shoe
        Co. v. Washington

        1. Had traveling salesmen
          taking orders for shoes then mail the orders to HQ. Did these
          salesmen submit Int Shoe to PJ in Washington?
        2. Due process requires
          only that the D has minimum contact with the forum state. Minimum
          contacts are found when the entity conducts systematic and
          continuous business within the forum
        3. Purposeful availment
        4. Combined the doctrines
          of Implied Consent (Hess) and Express Consent (Kane) forming the
          MINIMUM CONTACTS Standard
        5. HOLDING Yes
          minimum contacts with the forum state are sufficient to establish
          PJ consistent with Due Process.

          • DISSENT Just Black:
            Wanted a clear cut Rule for fair play
    2. Long
      Arm Statutes

      1. Cal Code Civ Pro –
        410.10 and 410.30

        1. 410.10
          A court of this state may excercise jurisdiction on any basis not
          inconsistant with the Constitution of this state or of the United
        2. 410.30(a) When a court, upon motion by a party or a courts own
          motion, finds that in the interest of justice an action should be
          heard in another forum the court shall dismiss in whole or in
          (b) Provisions in 418.10 dont apply to a motion to stay
          or dismiss the action by a defendant who has made a genreal
        3. California
          has an “Unlimited” long arm statute the gives power
          over any person or property up to the constitutional limit.
      2. New
        York Long Arm

        1. Also online
      3. Long
        arm statutes provide PJ over non residents who cannot be found and
        served in the forum

        1. Substitute Service:
          Long arms typically allow substitute methods of service since
          in-state personal service is not possible.
      4. Long
        Arm jurisdiction is based on links between the defendant and the
        forum state such as, property, domicile, minimum business
        contacts, tortious acts,driving a motor vehicle etc.
    3. Cases
      from 91D-98 99-100 105-119thru n 1

      1. Grey v. American

        1. Exploding Water Heater
          – OH valve → Assembled in PA → injury in IL.
        2. In products liability a
          D who sells products that he knows/has reason to know will be
          used within a forum state he may be required to defend in that
          state if the product causes tortious injury
        3. HOLDING yes the
          OH valve maker is required to defend in IL because the valves
          were frequently and expectedly used in the state of IL
      2. Hanson
        v. Deckla

        1. Donner PA established a
          trust in DE, she then moved to FL and died
        2. Donners daughters
          brought suit in FL regarding the dispersal of the trust.
        3. Defendant’s claimed FL
          had no jurisdiction of DE trust
        4. The DE trust had no min
          contact with FL

          • The cause of action
            doesnt arise out of an act or transaction in the forum state.
          • The DE bank did not
            purposefully avail itself to FL, Donner just moved there.
        5. IF no
          min cont then it doesnt matter how fair it is
        6. HOLDING A court
          cannot excersice jurisdiction where a defendant has only sporadic
          and inadvertant contacts with the forum.
      3. Word
        Wide Volkswagen Corp. v. Woodson

        1. Injured by defective
          burning NY Audi while driving through OK
        2. Brought suit in state
          court against all 3 parties to destroy diversity juris to prevent
          it from being removed to business friendly Federal court.
        3. Defendants made special
          appearance in OK claiming no juris

          • Test for minimum
            contacts to:

            1. Protect the D
            2. Ensure state
          • Base
            the test on the D conduct in the forum state
          • Purposeful Availment?
            1. Direct acts by the D
              in forum?
            2. Conduct outside their
              own state that would have obvious potential for a suit being
              brought in the forum
          • Fairness
            Test Looks at:

            1. The burden on the D
            2. The forum state’s
              public interest in hearing the case-by-case
            3. The P interest in
              using the forum
            4. Judicial efficiency
            5. Forum’s social
              interest in creating public policy on the issue
          • Interlocutory
            Appeal: an appeal made on a trial court ruling that is made
            before the full trial is over that will send the case directly
            to Appellate Ct. This appeal is permitted if:

            1. The case outcome
              would be determined by the issue
            2. The issue appealed is
              collateral to the merits AND
            3. The matter was
              effectively reviewable if the immediate appeal was not allowed.
        4. HOLDING
          The US Supreme said no juris in OK because the NY dealers did
          nothing to solicit business and the mere foreseeability that the
          car would end up in OK was not sufficient to establish PJ

          • DISSENT Brennan: Used
            the same tests for min contacts but said fairness is more
            important and the WERE MIN CONTACTS because thats fair
        5. Calder
          v Jones –
          The Calder Test

          • Shirley Jones,
            actress, was libeled by National Enquirer.
          • She
            sued the FL owners in CA Superior Ct.
          • Superior
            Ct granted Calders Motion To Dismiss 12(b)(2) lack of personal
          • HOLDING US
            Supreme Ct reverses, gives CA personal jurisdiction. Because the
            “libelous story concerned the activities of a California
            resident…[t]he article was drawn form California sources…and
            the brunt of the harm…was suffered in California”

            1. Committed an
              intentional Act
            2. Aimed at the forum
            3. Caused harm known
              by the D
              in the forum state

              • Courts
                warn not to rely too heavily on this
  4. Class

    1. Long Arm Statutes
      continued….Cases 138-140 n 1 142-148 n 1

      1. Perkins v. Benguet
        Mining Co
        Ms. Perkins, after messy divorce sues a
        Philippine corporation in OH for dividends and damages arising out
        of shares in the Philippine Co.

        1. D set up shop in OH
          after fleeing the Philippines due to Japanese WWII occupation.
          Uses OH for payroll, holding meetings, etc probably out of his
        2. OH district grants D
          12(b)(2) dismiss no PJ
        3. HOLDING US
          Supreme said OH DOES have PJ! Because D had “continuous and
          systematic” activities in OH the court has GENERAL

          • General
            is when the claim arises out of activities
            outside of the forum state. In this case the the in personum
            is sometimes called general jurisdiction.
          • Specific
            is when the in personum jurisdiction is
            granted over activities that DO arise from contacts in the
          • Perkins Test
            When the Action arises out of activities done outside the
            forum, Due Process requires that the in forum activities be
            “systematic and continuous”
      2. Helicopteros
        Nacionales De Columbia, S.A. v. Hall (US Supreme 1984)

        1. Helicopteros makes K
          with Consorcio to provide transport in Peru
        2. One negotioation
          session with Helicol and Consorcio was in TX at Bell Heli
        3. Helicol trains pilots
          and mechanics, and purchases 80% of its fleet from Bell
          Helicopter in TX
        4. HOLDING US
          Supreme said no Jurisdiction in TX

          • BECAUSE all the
            defendants activities were “mere purhcases” and purchases
            from an in forum entity even if “systematic and continuous”
            is not enough to establish PJ. The wrongful death did not arise
            out of the D in state activities. AND their in state activities
            were not “systematic and continuous” (Failed Perkins
          • Brennen DISSENT,
            argues that the action was “related to” the Ds TX contacts
            because the negotiation in TX and the helicopters that crashed
            were bought in TX and the pilot trained in TX, it is only “fair
            and reasonable” to allow TX PJ
    2. New

      1. Zippo Manuf. Co.
        v. Zippo Dot Com
        Articulated a “sliding scale”
        balancing test for websites.

        1. Active websites used
          to carry out transactions with the residents of a forum sate. One
          end of scale
        2. Passive websites
          do little more than post information on the web
      2. Pebble
        Beach Co v. Caddy (9

        1. Caddy had dual
          citizenship US/England
        2. Ran
          a bed and breakfast

          • Passive website, no
            reservation system. Non-interactive.
        3. Pebble
          Beach sues under Lanham Act for TM infringement and Bus Prof Code
          for intentional infringement and dilution

          • Must prove that Caddy
            had “performed some act…or otherwise purposefully availed
            himself” privileges of the forum state.
        4. District
          court grants Caddy’s motion to dismiss 12(b)(2) “lack of
          personal jurisdiction”
        5. HOLDING Judgement
          Affirmed, when a website owner puts up essentially passive
          content website there is no grounds for PJ unless he purposefully
          avails himself to the forum state (Supreme Ct has yet to address
          this, and is still up for state by state consideration)
        6. Reasoning Minimum
          Contacts Test
          – Three Mandatory Requirements

          • The defendant
            performed some act or transaction within the forum or otherwise
            purposefully availed himself the privileges of conducting
            activities in the forum
          • AND the claim arises
            out of those activities by the D
          • AND exercise of
            jurisdiction is reasonable
      3. Inset
        Systems Inc. v. Instruction Set, Inc. (D.Conn. 1996)
        website advertisement not directed towards any particular state
        was sufficient to establish PJ in Connecticut
      4. Cybersell,
        Inc. v. Cybersell, Inc.
        When a website owner puts up
        essentially passive content there is no grounds for PJ
  5. Class

    1. In Rem”

      1. Black’s “A court’s
        power to adjudicate the rights to a given piece of property,
        including the power to seize and hold it.”
      2. The issue is about the
        property itself eg a claim to title or status of the property.
        Usually land, sometimes property is U.S. v. Boxes of Pepsi,
        Bananas etc.
    2. Quasi
      in rem” Jurisdiction

      1. Black’s “Jurisdiction
        over a person but based on that person’s interest in property
        located within the court’s territory”
      2. Requires attachment at
        the outset of the action. D liable only for the property located
        within the state. The property is not the subject of the
        litigation but simply collateral to satisfy a possible judgement
    3. Harris
      v. Balk (US Supreme 1905)

      1. Harris
        NC $180 –> Balk NC $300 –> Epstein MD
      2. Harris goes to MD to
        visit, while he’s there Epstein sues him to recover the debt that
        Balk owed to Epstein. Asserting quasi in rem over Balks
        debt. MD makes Harris give the $180 to Epstein
      3. Balk then sues Harris in
        NC for the $180 that he just gave to Epstein.
      4. HOLDING supreme
        court found that the quasi in rem over the debt was valid
        in MD and the NC court must give full faith and credit to the MD
      5. NOTES The attachment on
        Harris’ debt probably would violate Balk’s Due Process under
        Shaffer (1977). Could Epstein ave sued Balk in MD?
        Probably IN REM as long as it was applied to MD transaction,
        because his business had established min contacts. IN PERSONUM, no
        because Balk was not Pennoyer present in MD. QUASI IN REM, Yes
        only up to the amount of the debt.
    4. Shaffer
      v. Heitner (US Supreme 1977)

      1. P brought a shareholder
        derivative suit in DL on behalf of Greyhound Corp. against 28 of
        Greyhounds non-resident officers and directors.
      2. Shareholder
        derivative suit
        “A shareholder
        derivative suit
        is a lawsuit
        brought by a shareholder
        on behalf of a corporation
        against a third party. Often, the
        third party is an insider of
        the corporation, such as an executive officer or director.
        Shareholder derivative suits are unique because under traditional
        corporate law,
        management is responsible for bringing and defending the
        corporation against suit. Shareholder derivative suits permit a
        shareholder to initiate a suit when management has failed to do
        so.” – Wikipedia
      3. None of the violating
        activities took place in DL and main place of business activities
        was at the AZ hq
      4. HOLDING
        court rejected Quasi In Rem
        over the shares of stock because the suit has nothing to do with
        in state property and it is just a slick way to attempt
        jurisdiction over the owner of the stock. This is obvious because
        DL doesn’t allow “special appearance” and this is just a
        sneaky way to force the D to appear submitting to a general
        appearance. Used the “minimum contacts” test from Int
        to decide that QinRem
        was unsuitable.
      5. Notes:
        In principle this case kills Quasi In Rem in CA because we have an
        expanded long arm statute over anything as long as it is
        constitutional. The court here rejected traditional arguments for
        quasi in rem
        especially the argument that a D should not avoid liability by
        removing his assets to a location outside jurisdiction.
  6. Class

    1. More on Physical Presence
      1. Burnham v.
        Superior Court

        1. Separated couple (didnt
          finish divorce), Mrs. Vernon takes kids to CA
        2. Mr. Vernon visits kids
          while in CA for business
        3. Mrs. Vernon serves him
          while hes there to get money out of him
        4. Affirmed, a person CAN
          be served if physically in the state even on matters unrelated to
          his reason for being in the state.
    2. Consent
      1. Under Pennoyer v Neff
        a D can consent to Personal Jurisdiction.
      2. Rule 12(h)(1) states
        that if you fail to object to PJ in your FIRST 12 defense, then
        you waive it
      3. Carnival Cruise
        Lines v. Shute

        1. Plaintiff opposes suit
          by a passenger who was injured on a cruise, because the tickets
          included a forum selection clause for FL
        2. RULE Forum
          selection clauses are enforceable as long as thy pass the test of

          • Passengers saved money
            up front because of forum clause
          • A crusie line
            especially has interest in choosing forum with potentially
            worldwide operations.
    3. Challenging

      1. FRCP 12 (b) How to
        Present Defenses.

        1. Lack of subject-matter
        2. lack of personal
        3. improper venue
        4. insufficient process
        5. insufficient service of
        6. failure to state a
          claim upon which relief can be granted; and
        7. failure to join a party
          under Rule 19
      2. A
        motion asserting any of these (12(b) defenses must be made before
        pleading if a responsive pleading is allowed. If a pleading sets
        out a claim for relief that does not rewuire a responsive
        pleading, an opposing party may assert at trial any defence of
        that claim. No defense or objection is waived by joining it with
        one or more other defenses or objections in a responsive pleading
        or in a motion.
      3. 12(g) Joining Motions
        1. Right to Join: A motion
          under this rule may be joined with any other motion allowed by
          this rule.
        2. Limitations on Further
          Motions: Except as provided in Rule 12(h)(2) or (3) a party that
          makes a motion under this rule must not make another motion under
          this rule raising a defense or objection that was available to
          the party but omitted from its earlier motion.
      4. 12(h)
        Waiving and Preserving Certain Defenses

        1. When Some Are Waived: A
          party waives any defenses in Rule 12(b)(2)-(5) by

          • A. Omitting it from a
            motion in the circumstances described in rule 12(g)(2); OR
          • B. failing to either
            1. I. make it by motion
              under this rule; OR
            2. ii. include it in a
              responsive pleading or in an amendment allowed by Rule 15(a)(1)
              as a matter of course.
        2. When
          to raise Others: Failure to state a claim upn which relief can be
          granted, to join a person required by Rule 19(b), or to state a
          legal defense to a claim may be raised:

          • A. in any pleading
            allowed under Rule 7(a)
          • B. by a motion under
            Rule 12(c); or
          • C. at trial
        3. Lack
          of Subject Matter Jursidiction: If the court determines at any
          time that it lacks SMJ the court MUST dismiss the action.
      5. Collateral
        When a separate lawsuit is filed to protest a piece of
        another lawsuit. Typically Habeus Corpus lawsuit, eg was
        Mirandized, unconstitutionally searched, these would be
        colllateral attacks on a crime conviction.
      6. How
        can you sue someone if you dont have PJ?

        1. USE the Long-Arm!
        2. CA Long-Arm: You can
          sue anyone, anywhere as long as its constitutional.
  7. Class
    7 {Section II How You Start a Lawsuit}

    1. Summons
      1. FRCP 1: Scope and
        Purpose: These rules govern the procedure in all civil actions and
        proceedings in the US district courts, except as stated in Rule
        81. They should be construed and administered to secure the just,
        speedy, and inexpensive determination of every action and
      2. FRCP 3: A civil action
        is commenced by filing a complaint with the court.
      3. FRCP 4
        1. a. Contents of a
        2. b. Issuance of a
          summons from the court clerk
        3. c. Service of that
          summons ^
        4. d. waiving service
          • 1. Requesting a waiver
          • 2. Failure to Waive: D
            will incur costs of service
          • 3. Time to answer
            After waiver: 60 days
          • 4. Results of Filing a
            Waiver: no proof of service reuqired
          • 5. Jurisdiction and
            Venue not waived: < even if summons is waived
        5. e.
          Serving an Individual Within a Judicial District of the US

          • 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 US by:

            1. Following state
              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
            2. Doing any of the

              • A. delivering a copy
                of the summons and the complaint to the individual personally;
              • B. leaving a copy at
                the individual’s dwelling OR usual place of abode with
                someone of suitable age and discretion who resides there; OR

                • Not Office under
                  FRCP, In CA-RCP you can deliver to home OR business AFTER
                  attempting personal service
              • C.
                delivering a copy of each to an agent authorized by
                appointment or by law to recive service of process.

                • (ex Hess said the
                  sec of state was aloud to accept service for out of state
      4. FRCP
        Form 3: Is a summons (pg453 Heiser)
    2. Notice
      1. Service
        1. Personal Service all
          the way down to constructive notice (publication). In between
          there is a spectrum, mail it, leave at home, business, with mum
          ect. Different jurisdictions require different minimums for
          service, ranging from federal system that says 4(e)(2) that says
          you can satisfy the state where they are or the state where the
          suit is brought (which may be the same, or may not if long-arm)
          or you can leave it with them or at home.
        2. Courts are generally
          lenient for service that isnt served to an agent, probly wont
          throw ot for bad service.
        3. Recently rules have
          been leaning more towards formalism of rules.
        4. The preferred method of
          service now is NO SERVICE by waiver of service 4(e)3), and you
          have 60 days instead of 21 to answer/respond to the service.

          • 60 days from the time
            it was mailed!
        5. Even
          if you respond and say NO i dont waive, you havent been served.
          But you will have to pay for the service
      2. Mullane
        v. Central Hanover Bank & Trust Co.

        1. Central Hanover was the
          trustee of a large estate with pooled assets of a number of
        2. Is notice given to out
          of state parties by publication in a newspaper, when the parties’
          addresses were known, constitutional in light of the Due Process
          Clause of the Fourteenth Amendment?
        3. RULE
          No. Notice given to out of state
          parties by publication in a newspaper, when the parties’
          addresses were known, is unconstitutional in light of the Due
          Process Clause of the Fourteenth Amendment
      3. 4(d)
        Waiving service

        1. Under Rule 4 of the
          Federal Rules of Civil Procedure, the defendant must either
          consent to waive service or be personally served. Service be
          affected by mail only if the defendant does not waive service or
          accept personal service.
        2. Under the new Rule
          4, if the defendant does not reply, there is no basis for
          defaulted judgment, except that the defendant has to pay for
          normal service.
      4. a
        fortiori – a for-she-orie
  8. Class
    8 Notice, cont.

    1. 217-229
      1. 4(d) specifies
        First class mail, postage prepaid for service.
      2. FedEx has been accepted
        under 5(b) mailing to last known address
      3. 4(e)
        Serving an Individual Within a
        Judicial District of the United States.
        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:
        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
        doing any of the following:
        delivering a copy of the summons
        and of the complaint to the individual personally;
        leaving a copy of each at the
        individual’s dwelling or usual place of abode with someone of
        suitable age and discretion who resides there; or
        delivering a copy of each to an
        agent authorized by appointment or by law to receive service of
      4. National Equipment
        Rental, Ltd. v. Szukhent

        1. Szukhent rented
          equipment from NER
        2. Lease stated Weinberg
          as agent for process, Szukhent doesnt know who Weinberg is.
        3. NER served Weinberg, he
          sent the summons certified mail to Szukhent
        4. HOLDING
          Yes, you may appoint an agent to
          receive service and the service is valid IF that agent promptly
          transmits the notice
        5. DISSENT. Doesnt belive
          the appointment of W as an agent is valid because it was simply a
          name on a form K
      5. 4(h)
        Serving a Corporation,
        Partnership, or Association.
        federal law provides otherwise or the defendant’s waiver has
        been filed, a domestic or foreign corporation, or a partnership or
        other unincorporated association that is subject to suit under a
        common name, must be served:
        (1) in a judicial district of the
        United States:
        (A) in the manner prescribed by Rule 4(e)(1) for
        serving an individual; or
        (B) 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 and — if the agent is one authorized
        by statute and the statute so requires — by also mailing a copy
        of each to the defendant; or
        (2) at a place not within any
        judicial district of the United States, in any manner prescribed
        by Rule 4(f) for serving an individual, except personal delivery
        under (f)(2)(C)(i).

      6. 4(f)
        Serving an Individual in a
        Foreign Country.
        (They are also
        given incentives to waive service in the form of a loner time to
        respond to summons. but they will not be charged for the costs of
        formal service.)
        Rio Properties
        v. Rio Int. –
        circuit approved service by email for international
        federal law provides otherwise, an individual – other than a
        minor, an incompetent person, or a person whose waiver has been
        filed – may be served at a place not within any judicial district
        of the United States:
        (1) by any internationally agreed means
        of service that is reasonably calculated to give notice, such as
        those authorized by the Hague Convention on the Service Abroad of
        Judicial and Extrajudicial Documents;
        (2) if there is no
        internationally agreed means, or if an international agreement
        allows but does not specify other means, by a method that is
        reasonably calculated to give notice:
        (A) as prescribed by the
        foreign country’s law for service in that country in an action in
        its courts of general jurisdiction;
        (B) as the foreign
        authority directs in response to a letter rogatory or letter of
        request; or
        (C) unless prohibited by the foreign country’s law,
        (i) delivering a copy of the summons and of the complaint
        to the individual personally; or
        (ii) using any form of mail
        that the clerk addresses and sends to the individual and that
        requires a signed receipt; or
        (3) by other means not prohibited
        by international agreement, as the court orders.
    2. 231
      (Sewer Service)

      1. When a process server
        provides a false affidavit of service. He never actually serves
        defendant, just throws the paper in the sewer then lies to court
        about it.
    3. 231-232
    4. 237-239 n1
  9. -10
    {Section III Pleadings}
    When in doubt if
    you have a claim JUST PLEAD IT!!!

    1. Notice
      – Just tell the other
      party what you are suing for Purpose of Notice is to give party

      1. IF you DONT MEET than →
        12(b)(6) FAILURE TO STATE A CLAIM
    2. Code
      – required pleading
      facts, not law, very technical

      1. Twombly
        and Ickball
        have thrown a lot
        of uncertainty into the pleading under federal rules
      2. Extent to which they
        change a very liberal Notice Pleading is unclear
      3. Pure
        notice Pleading WILL NOT satisfy TwomBall
    3. .Example
      of Notice Pleading

      1. Dioguardi
        v. Durning
        His pleading is not
        at all clear and was amended a couple times, but the court finds
        his pleading to be good enough
        Claims he lost his 37 bottles of
        imported medicine being held at customs and were then auctioned
        long as you present a claim with a cause of action, (NOTICE
        PLEADING) it is ok if you cant quite articulate the claim as long
        as something is presented.
      2. BELL
        used to be a regulated lawful monopoly, it was then broken down
        into smaller regions and separate companies
        Parralelism of
        conduct is not illegal simply sticking to your territory is not
        illegal BUT
        However AGREEING to divide up territories as an
        industry is illegal
        Complaint, 100 paragraphs
        alleging that the phone companies are sticking to their
        This is not a cause of action here 12(b)(6)
        Heightened the Pleading Requirement for Fed Civil Claims to
        include enough facts in their
        complaint to make it plausible — not merely possible or
  1. The

    1. 7(a) PLEADINGS: Only
      these pleadings are allowed

        1. A complaint;
        2. An answer to a
        3. An answer to a
          counterclaim designated as a counterclaim;
        4. an answer to a
        5. a third-party
        6. an answer to a
          third-party complaint; AND
        7. if the court orders
          one, a reply to an answer
    2. 8(a)
      CLAIMS FOR RELIEF: A pleadng that states a claim for relief must

        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 of different
          types of relief.
    3. 9(b)
      Fraud od Mistake; Condition of Mind
      In alleging fraud or
      mistake, a party must state with particularity the circumstances
      constituting fraud or mistake. Malice, intent, knowledge, and other
      conditions of a person’s mind may be alleged generally.
    4. 10(a) Caption; Names of
      Parties (Document Label)

      1. Every
        pleading must have a caption with the court’s name, a title, a
        file number, and a Rule
        The title of the complaint must name all the parties; the title of
        other pleadings, after naming the first party on each side, may
        refer generally to other parties.
    5. 10(b)
      Paragraphs; Separate Statements (Number each claim in its own
      paragraph so the claims can be reffered to by number in the answer

      1. A party must state its
        claims or defenses in numbered paragraphs, each limited as far as
        practicable to a single set of circumstances. A later pleading may
        refer by number to a paragraph in an earlier pleading. If doing so
        would promote clarity, each claim founded on a separate
        transaction or occurrence — and each defense other than a denial
        — must be stated in a separate count or defense.
    6. 8(d)
      Pleading to Be Concise and Direct; Alternative Statements;
      (1) In General.
      allegation must be simple, concise, and direct. No technical form
      is required.
      (2) Alternative
      Statements of a Claim or Defense.
      party may set out 2 or more statements of a claim or defense
      alternatively or hypothetically, either in a single count or
      defense or in separate ones. If a party makes alternative
      statements, the pleading is sufficient if any one of them is
      (3) Inconsistent
      Claims or Defenses.
      A party may
      state as many separate claims or defenses as it has, regardless of
      8(e) Construing
      Pleadings must be
      construed so as to do justice.
    7. 54(c) Demand
      for Judgment; Relief to Be Granted.
      default judgment must not
      differ in kind from, or exceed in amount, what is demanded in the
      pleadings. Every other final
      should grant the relief
      to which each party is entitled, even if the party has not demanded
      that relief in its pleadings.
    8. Form 10: Complaint to
      Recover a Sum Certain
    9. Form 11: Complaint for
    10. Form 12: Complaint for
      Negligence When the Plaintiff Does Not Know Who is Responsible
    11. Form 13: Complaint for
      Negligence Under the Federal Employers Liability Activities
    12. Form 14: Complaint For
      Damages Under the Merchant Marine Act
    13. Form 15: Complaint for
      the Conversion of Property
    14. Form 16: Third Party
    15. Form 17: Complaint for
      Specific Performance of a Contract to Convey Land
    16. Form 18:Complaint for
      Patent Infringement
  1. Class
    11 Motions and Defendant’s Answer

      1. FRCP 12 (b) How to
        Present Defenses.

        1. Lack of subject-matter
        2. lack of personal
        3. improper venue
        4. insufficient process
        5. insufficient service of
        6. failure to state a
          claim upon which relief can be granted; and
        7. failure to join a party
          under Rule 19
      2. A
        motion asserting any of these (12(b) defenses must be made before
        pleading if a responsive pleading is allowed. If a pleading sets
        out a claim for relief that does not rewuire a responsive
        pleading, an opposing party may assert at trial any defence of
        that claim. No defense or objection is waived by joining it with
        one or more other defenses or objections in a responsive pleading
        or in a motion.


and Objections: When and How Presented; Motion for Judgment on the
Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

Time to Serve a Responsive Pleading.

In General.

another time is specified by this rule or a federal statute, the
time for serving a responsive pleading is as follows:

(A) A
defendant must serve an answer:

within 21 days after being served with the summons and complaint; or

if it has timely waived service under Rule
within 60 days after the request for a waiver was sent, or within 90
days after it was sent to the defendant outside any judicial
district of the United States.

(B) A
party must serve an answer to a counterclaim or crossclaim within 21
days after being served with the pleading that states the
counterclaim or crossclaim.

(C) A
party must serve a reply to an answer within 21 days after being
served with an order to reply, unless the order specifies a
different time.

United States and Its Agencies, Officers, or Employees Sued in an
Official Capacity.

United States, a United States agency, or a United States officer or
employee sued only in an official capacity must serve an answer to a
complaint, counterclaim, or crossclaim within 60 days after service
on the United States attorney.

United States Officers or Employees Sued in an Individual Capacity.

A United
States officer or employee sued in an individual capacity for an act
or omission occurring in connection with duties performed on the
United States’ behalf must serve an answer to a complaint,
counterclaim, or crossclaim within 60 days after service on the
officer or employee or service on the United States attorney,
whichever is later.

Effect of a Motion.

the court sets a different time, serving a motion under this rule
alters these periods as follows:

(A) if
the court denies the motion or postpones its disposition until
trial, the responsive pleading must be served within 14 days after
notice of the court’s action; or

(B) if
the court grants a motion for a more definite statement, the
responsive pleading must be served within 14 days after the more
definite statement is served.

How to Present Defenses.

Every defense
to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the
following defenses by motion:

(1) lack
of subject-matter jurisdiction;

(2) lack
of personal jurisdiction;

improper venue;

insufficient process;

insufficient service of process;

failure to state a claim upon which relief can be granted; and

failure to join a party under Rule

A motion
asserting any of these defenses must be made before pleading if a
responsive pleading is allowed. If a pleading sets out a claim for
relief that does not require a responsive pleading, an opposing party
may assert at trial any defense to that claim. No defense or
objection is waived by joining it with one or more other defenses or
objections in a responsive pleading or in a motion.

Motion for Judgment on the Pleadings.

After the
pleadings are closed — but early enough not to delay trial — a
party may move for judgment on the pleadings.

Result of Presenting Matters Outside the Pleadings.

on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule
All parties must be given a reasonable opportunity to present all the
material that is pertinent to the motion.

Motion For a More Definite Statement.

A party may
move for a more definite statement of a pleading to which a
responsive pleading is allowed but which is so vague or ambiguous
that the party cannot reasonably prepare a response. The motion must
be made before filing a responsive pleading and must point out the
defects complained of and the details desired. If the court orders a
more definite statement and the order is not obeyed within 14 days
after notice of the order or within the time the court sets, the
court may strike the pleading or issue any other appropriate order.

Motion To Strike.

The court may
strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter. The court may act:

(1) on
its own; or

(2) on
motion made by a party either before responding to the pleading or,
if a response is not allowed, within 21 days after being served with
the pleading.

Joining Motions.

Right to Join.

A motion
under this rule may be joined with any other motion allowed by this

Limitation on Further Motions.

as provided in Rule 12(h)(2) or (3), a party that makes a motion
under this rule must not make another motion under this rule raising
a defense or objection that was available to the party but omitted
from its earlier motion.

Waiving and Preserving Certain Defenses.

When Some Are Waived.

A party
waives any defense listed in Rule 12(b)(2)-(5) by:

omitting it from a motion in the circumstances described in Rule
12(g)(2); or

failing to either:

(i) make
it by motion under this rule; or

include it in a responsive pleading or in an amendment allowed
as a matter of course.

When to Raise Others.

to state a claim upon which relief can be granted, to join a person
required by Rule
or to state a legal defense to a claim may be raised:

in any pleading allowed or ordered under Rule

(B) by a
motion under Rule 12(c); or

(C) at

Lack of Subject-Matter Jurisdiction.

If the
court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.

Hearing Before Trial.

If a party so
moves, any defense listed in Rule 12(b)(1)-(7) — whether made in a
pleading or by motion — and a motion under Rule 12(c) must be heard
and decided before trial unless the court orders a deferral until

    1. American
      Nurses’ Association v. Illinois

      1. Nurses felt
        discriminated by gender. Didnt draft a very clear complaint, more
        likely that they were afraid the actual facts didnt mactch
      2. They really were
        claiming that men in completely different jobs were making more
      3. Comprable work, suppose
        im an employer i have two jobs

        1. Forklift operator $12
        2. Bookeeper  $8 hou
        3. is it sex
          discrimination under the law if most bookeepers are women or most
          forklifts are men? NO not currently
        4. Womens rights have been
          pushing for this.
        5. One fix is to jsut pay
          everyone the same. for every jo
      4. Could
        require 50/50 hiring
      5. Good claim would be
        equal pay for equal work (but nurses were unclear about this
      6. They really claimed
        1. Comprable work should
          be paid the same – WELL WHAT IS A COMPARABLE WORK??? it would
          take a large Czar to determine the millions of options
      7. Reveresed
        and remanded (will probobly loose)
      8. Comprable work claims
        will fail
      9. But if they can show
        evidence for unequal pay for EQUAL work they may have a claim. but
        prob not
      10. Ingraham
        v United State US Ct App 5th Circuit 1987

        on medical malpractice
        Argument for  – Can cause some
        geographic areas to be devoid of certain practitioners due to high
        malpractice insurance
        in doubt if you have a claim JUST PLEAD IT!!!
        do you need to plead these defenses from 8c affirmatively?
        med malpractice case you may try to go after damages you know are
        not going to be capped
        Specific denial –> denial of
        Affirmative defenses –> disputes an issue by
        theoretically adding facts that kill the claim
      11. 8(c)
        RULE 8c
        to affirmatively state any affirmative defense.
        Affirmative Defenses
        (1) In General.
        In responding to a
        pleading, a party must affirmatively state any avoidance or
        affirmative defense, including:

        1. accord and
        2. arbitration and award;
        3. assumption of risk;
        4. contributory
        5. discharge in
        6. duress;
        7. estoppel;
        8. failure of
        9. fraud;
        10. illegality;
        11. injury by fellow
        12. laches; (Unreasonable
          delay in pursuing a right or claim — almost always an equitable
          one — in a way that prejudices the party against whom relief is
          sought — also termed sleeping on rights)
        13. license;
        14. payment;
        15. release;
        16. res judicata; (an issue
          that has been definitively settled by judicial decision)
        17. statute of frauds;
        18. statute of limitations;
        19. waiver.
  1. Mistaken

    1. If a party mistakenly
      designates a defense as a counterclaim, or a counterclaim as a
      defense, the court must, if justice requires, treat the pleading as
      though it were correctly designated, and may impose terms for doing
  1. Class
    12 Amendment

    1. FRCP 15
      1. A.
        Amendments before trial
      2. 1. A party may amend its
        pleading once as a matter of course

        1. A. 21 days after
          serving it OR
        2. B. If the pleading is
          one which a response is required, 21 days after service OR 21
          days after service of a motion under Rule 12(b) (e) OR (f),
          whichever is EARLIER
      3. 2.
        Other amendments: In all other cases, a party may amend its
        pelading only with the opposing party’s written consent or the
        court’s leave [permission]. The court should freely give leave
        when justice requires.
      4. 3. Time to respond:
        Unless the court orders otherwise, any required response to an
        amended pleading must be made within the time remaining ot respond
        to the original pleading OR within 14 days after service of the
        amended pleading whichever is LATER
      5. (b) Amendments During
        and after trial

        1. Based on an objection
          at trial: If at trial a party ojects to evidence as being outside
          the original pleading the court may allow the pleading to be
          amended. The court should allow if it will aid in the merits and
          will not prejudice the parties action or a defense on the merits
        2. For issues Tried by
          Consent: When an issue is tried by express or implied consent it
          will be considered to have been part of the pleading.
      6. (c) An
        amendment Relates back when:

        1. A) the statute of
          limitations allows it to relate back OR
        2. B) the amendment
          asserts a claim or defense from same T/O; OR
        3. C) the amendment
          changes the naming of the party under 15(c)(1)(B)^^ within RULE
          4(m) for serving summons, the party to be brought in

          • (i.) received such
            notice AND
          • (ii) Knew or should
            have know it was supposed to be their name on the complaint
      7. (2)
        When Notice to the U.S. 15(c)(1)(C)(i) and (ii)^^ are SATISFIED IF
        process was delivered or mailed to the US Attorney or designee,
        the US Attorney General or an officer of AttGeneral.
      8. (d) Supplemental
        Pleadings → A court may on just terms allow amendment for an
        event that occurred AFTER the original pleading, and will prob
        require the other party to respond within a specific time
      9. Worthington v.

        1. Complaint against two
          police, because P or his attorney did not know the names they
          files as P v. “unknown police officers” (Probably should have
          named the police chief or department under respondeat superior)
        2. HOLDING because
          Worthington’s failure to name Wilson and Wall was due to lack of
          knowledge as to their identity and not to mistake in their names
          the amendment does not relate back under 15(c)
    2. 623-626,
      630-633, 643n4
  2. Class
    13 Deterring Abusive Pleadings

    1. FRCP 11
      1. (a) SIGNATURE. Every
        pleading, written motion, and paper must be signed by at least one
        attorney, or by the unrepresented party. MUST include ADDRESS,
        EMAIL, and PHONE
      2. (b) Representations to
        The Court: By representing a pleading, motion, or other paper, an
        attorney certifies to the best of his knowledge that the
        information is correct.

        1. It is not being
          presented for improper purposes to harass, delay, or increase
          cost of litigation AND
        2. claims, defenses and
          other legal contentions therein are warranted by law or by a
          non-frivolous argument for extending, modifying, or reversing
          existing law or establishing new law AND
        3. the factual assertions
          have evidential support; AND
        4. the denials of factual
          assertions or warranted on the evidence, OR reasonable lack of
      3. (c.)

        1. In generalIf after
          notice and a reasonable opportunity to respond the court
          determines that Rule 11(b) has been violated (by FALSE
          REPRESENTATIONs), the court may impose sanctions on the attorney
          or law firm. Absent exceptional evidence the law firm is held
          jointly liable.
        2. Motion for Sanctions:
          must be made separately from any other motion and must describe
          the alleged misconduct that violates 11(b). The motion must be
          served Under RULE 5 (Serving, Filing, And other papers). If
          warranted the court may award the prevailing party attorneys fees
          incured for the motion
        3. On the courts
          initiative may require the attorney/firm to show cause that the
          conduct has not violated 11(b)
        4. Nature of a Sanction:
          Sanction must be limited to what is necessary to deter repetition
          or comparable conduct by others. May include monetary,
          non-monetary, or attorneys fees to other side for the trouble
        5. Limitations on Monetary
          Sanctions, court must not impose money sanctions for:

          • (A) a represented
            for violating 11(b)(2); OR
          • (B) on its own before
            a voluntary dismissal of the claims
        6. requirements
          for an order, order for sanctions MUST describe the sanctioned
          conduct and explain the basis
      4. (d)
        Inapplicability to Discovery, does not apply to disclosures OR
        discovery requests
    2. Surrowitz
      v. Hilton Hotels Corp.
      (Represented by Mr. Brilliant)

        1. Request for sanction
          for violating the RULE 23(b) “complaint shall be verified by
          oath” in shareholder derivative suit because the P old lady
          didnt understand the suit.
        2. HOLDING no
          sanctions nothing indicates that the verification need be that of
          the shareholder
    3. Hadges
      v. Yonkers Racing Corp.
      640-648, 649n2-651

      1. Issue may the attorney
        be sanctioned for relying on the Jockey’s word AND not disclosing
        the state-court case?
      2. HOLDING No
        because the other side did not properly file the sanction request.
        D did not file a SEPARATE ORDER explaining the sanctionable
        activity AND did not give 21 DAYS TO REMEDY the issue before
        filing the RULE 11 motion with the court.

3. Subject
Matter Jurisdiction

  1. General

    1. Diversity (different
      citizens diff states) v. Federal Question
    2. Amount in controversy
      exceed $75,000
    3. Burden the party waning
      to invoke the jurisdiction must make an affirmative showing that it
      is within the courts SMJ (ie the pleading/complaint) must allege
      the SMJ
    4. Dismissal at ANYTIME for
      lack of SMJ → RULE 12(h)(3)
  2. Diversity
    Jurisdiction § 1332

    1. No party on either side
      of the “v.” can be from the same state

      1. Date
        for determining citizenship is as of the commencement of the

        1. A later change in
          citizenship does not affect (create OR destroy) diversity
      2. Domicile:
        citizenship is DECIDED BY DOMICILE (not residence).
        Domicile is one place where the person intends to stay. To
        establish new domicile you must go there AND intend to stay

        1. Resident alien is
          deemed a citizen of the state he is domiciled in
        2. Presence of a foreign
          citizen (French Guy) or foreign country does not destroy
      3. Complete
        diversity IS REQUIRED (unless specifically excepted)
      4. Pleading not
        dispositive, the pleading itself doesnt determine who exactly is
        an adverse party for diversity, the court arranges parties
        according to their real interest in the litigation.

        1. Nominal
          parties are ignored for diversity ie a guardian suing on behalf
          of an infant (infant’s citizenship decides diversity)
        2. Pete
          Rose v. Giamatti, MLB, C Reds.
          should be established by the major parties ie Giamatti
          in the Pete Rose v. Giamatti,
          MLB, C Reds.
          not by the
          nominal or formal parties. A nominal/formal party in a genuine
          legal sense has no real interest in the result of the suit.
          wants to sue in Ohio, Giamatti wants the case removed to federal
          Court holds that diversity of citizenship exists
          because MLB and C Reds are at best nominal parties
    2. Alienage
      Mexican v. D(American) is considered diversity as
      long as it exceeds $75k

      1. Suit solely among
        foreigners doesnt count as diverse ie Mexican v. Canadian

        1. Resident alien living
          in the US is a citizen of that state for diversity purposes
    3. Diversity
      involving partnerships and corporations

      1. Partnerships, Union
        LLCs, LLPs, dont have a single citizenship. It is a citizen of
        each members state of citizenship
      2. Corporation Is a
        citizen where it is incorporated AND its Principal Place of

        1. Principal
          Place of Business is either:

          1. The Nerve Center –
            Decision making center, corporate HQ, etc
          2. Corporate activities
            test – the location of the production or service activities
          3. Total activity test –
            Hybrid of Nerve and CorpActivities balances the relevant factors
            to see which is weighted more heavily
          4. Hertz
            v. Friend
            says to use the Nerve Center
    4. Fabricated
      diversity by “improperly or collusively joined” parties will
      not be tolerated §1359

      1. Assignment: You can not
        “hire” someone else to bring the suit for you
      2. Devices
        to defeat removal to federal Ct there is no statue BUT courts will
        often disregard obvious removal-defeating tactics like joining a D
        that is irrelevant

        1. Low
          Dollar Claim
          less than $75k CAN
          be used, but must be claimed before removal is requested by D
  3. Federal
    Question Jurisdiction

    1. Federal Ct has authority
      (not required) to hear Federal Question cases §1331 (if a FQ is
      brought in state court it cannot be removed if D is a citizen of
      that state)

      1. Federal
        : There
        is NO DEFINITION exactly
        mostly because federal law is the source of the P’s claim.

        1. Interpretation of
          federal law does NOT COUNT. A state based claim that requires
          interpretation of federal law is not a FQ
        2. Claim
          based on the merits
          If the claim
          arises under Fed Law it qualifies even if the claim is invalid on
          the merits (in the latter case will be dismissed on 12(b)(6)
          failure to state a cliam NOT 12(b)(1) no SMJ
        3. Anticipation
          of Defense
          does not satisfy FQ
          (Louisville RR v Mottley free train passes)
  4. Amount
    in controversy

    1. Applies to Diversity ONLY
      must exceed $75,000
    2. Standard
      of proof – P only has to show with some
      that it exceeds that

      1. Legal certainty cannot
        be dismissed for lack of amount UNLESS it can be shown with legal
        certainty that the claim is really only for less
      2. Eventual Recovery
    3. Most
      courts say it must be worth $75,000 to P (others may look at D
      valuation of the item as well)
    4. Aggregation of Claims
      1. Aggregation by a single
        P v. single D: P may add all claims together to make +$75

        1. Aggregation only works
          against a single D and uses supplemental §1367
        2. Additional D: a P who
          has aggregated his claims against one D may not join claims
          agains other D’s UNLESS those claims meet the juris amount
      2. Aggregation
        by multiple P

        1. IF one of the P’s meets
          the amount then other P’s can join as long as same T/O under
          supplemental §1367 (Exxon v. Allapatah)
        2. Aggregation NOT ALLOWED
          IF No single claim meets the amount (unless 2 P’s are asserting a
          single title or right with a common undivided interest)
        3. Class
          in diversity as long as
          one named P meets the +$75K amount then others dont need to
  5. Supplemental

    1. Under
      SuppJuris some claims might not have to meet SMJ if excepted under

      1. § 1367 replaced
        pendent/ancillary jurisdiction
      2. § 1367(a) “In any
        civil action of which the district courts have original
        jurisdiction, the district courts shall have supplemental
        jurisdiction over all other claims of the… same case or
        controversy…[and] shall include claims that involve the joinder
        or intervention of additional parties”
      3. Federal
        when the original claim
        is a FQ §1367 allows the court to here ANY same T/O state claims

        1. §1367 Clearly applies
          when it Is the same parties a the FQ
        2. Additional parties
          (same T/O) are also allowed under §1367(a) last sentence
      4. Diversity

        1. Claims
          under supplemental §1367

          1. RULE
          2. RULE
            joinder of parties
            to compulsory counterclaims
          3. RULE
            cross-claims by D
            v. D (
            because it
            necessarily relates to the T/O)
          4. RULE
            impleader of
            TPD, for claims by and against TPP, and claims by TPD, but
            claims by original P against TPD
          5. Multiple
            under RULE 20
            “permissive joinder” (BUT only for juris amount, NOT for
          6. Joinder
            of Plaintiff’s
            RULE 23
            for class actions (as long as one or more Named P meet
        2. Claims
          NOT COVERED under
          §1367 when only ON DIVERSITY

          1. Claims
            against TPD under
            RULE 14(a)
          2. Compulsory
            under RULE 19(a)
            “joined if feasible” claims against that, nor claims by that
          3. RULE
            Permissive Joinder of
            ex P(NY) is hit by
            D1(NJ) and injured in rescue by D2(CA) → P(NY) v D2(CA) for
            $20k cannot be heard because it is not covered under SuppJuris
          4. Intervention
            Claims by prospective P
            who try to intervene under RULE 24 do not get the benefit of
        3. Defensive
          Posture Required
          claims by D’s basically fall under §1367, but additional claims
          (or addition of parties) by P’s is generally NOT given
          supplemental. SO EXPECT
          IT IN A
      5. Discretion
        to reject exercise of 1367
        §1367(c) gives four reasons why the court may decline
        supplemental jurisdiction. Most often because the original claim
        with SMJ has been dismissed.
      6. No
        effect on PJ
        1367 supplemental
        does not eliminate the PJ requirement or the need for valid
        service. Supplemental 1367 Only
        effects SMJ (
        but often under
        supplemental the 100mi bulge will apply)

        1. Venue
          when supplemental 1367 applies
          Venue will not need to be satisfied for new parties with respect
          to the new party.

    1. Removal
      generally any action
      brought in State Court that COULD have been in Fed Court MAY be
      removed by D

      1. UNLESS any D is a
        citizen of the State court where the diversity action was brought
        (exception for class-actions which may be removed)
      2. Where suit goes: When a
        case is removed it goes to the Federal Court in the district where
        the state-court sits
    2. Diversity
      and amount apply in removal for SMJ
    3. P
      cannot remove ever
      ONLY a D may
      remove. A P defending a counterclaim cannot remove.
    4. Look ONLY at P’s
      complaint → If injury bills are $100k and P only sues for $60k
      this WILL PREVENT removal by D because the complaint control.
    5. Removal
      of Multiple Claims
      Where P asserts
      against D two claims in state court one of which could be removed
      alone, and the other could not it gets TRICKY

      1. Diversity
        if the basis for removal of the
        second claim is diversity
        then the whole case is barred from removal
      2. Federal
        Question case
        if the second claim
        is a FQ and the other claim has no independent fed jurisdiction
        then D may remove the whole case § 1441(c)

        1. BUT the Fed Ct can
          remand the state-court claim
        2. AND can even remove the
          FQ if the state claim is found to be the predominate controversy
    6. Compulsory
      If the federal judge
      concludes that removal did not satisfy the 1441requirements SHE
      MUST remand
    7. Mechanics of Removal
      1. Time
        D must file removal within 30
        days of receiving the state-court complaint
      2. All D must be joined in
        removal (except purely nominal ones)

        1. If removed under
          1441(c) “separate federal claim” then only D to the FQ need
          to be on the notice
        2. v. WHOSE LAW?
6. Ascertaining
Applicable Law

  1. Nature
    of the Problem

    1. Generally Cases that can
      be heard in Fed Ct can ALSO be brought in State Ct, BUT what Law
      should be used?

      1. Forum Shopping To
        prevent forum shopping the courts will generally apply state
        substantive law in diversity cases.
      2. Rules of Decisions
        Act § 1652
        is based on the supremacy clause tells which law
        to apply: “The laws of the several states, except where the
        Constitution or treaties of the United States or Acts of Congress
        otherwise require or provide, shall be regarded as rules of
        decision in civil actions in the courts of the United States, in
        cases where they apply.”

        1. Federal Applies when
          there is a applicable Constitution, treaty, or statute enacted by
          Congress. ← These all take precedent over state law
        2. State
          Statutes IF
          there is not a Federal Constitution or Statute on
          Point then → Fed court MUST use the State Statute
        3. Dispute about common
          If there is NO Fed OR State Statute then follow
    2. Erie
      v. Tompkins
      In DIVERSITY cases The Federal Ct MUST apply
      State common law on any Substantive Law issues (This rule is
      contrary to Swift v. Tyson where the Fed could ignore state
      common law)

      1. Erie says that Rules of
        Decisions Act intends to apply State Common Law in Fed Ct
        diversity cases.
  2. Erie

    1. Ascertaining State law
      only easy when the highest state court has recently spoken
      on the issue (It is tricky when only Lower Cts have heard the
      issue). It is up to the Fed Ct to determine how the States Highest
      Ct would see the Issue TODAY!!!

      1. IF there is an
        Intermediate Ct decision then the Fed Ct will generally follow
        this UNLESS there is good reason to believe the St Supreme would
        see the issue differently
      2. IF no state court has
        spoken then the Fed Ct will look to prior Fed Diversity Cases.
        OR the decisions from other state courts.
      3. OLD obsolete
        State Decisions the Fed Court is at its discretion to conclude
        that the State court would hold differently now
      4. Federal Ct (even AppCt)
        must follow any NEW state court decisions even if decided after
        the original Fed Jgmnt
    2. Conflict
      of laws
      Fed Ct must follow State Conflict laws.

      1. Ex P soldiers are
        injured by defective grenades while in Iraq. P dues the
        manufacturer in TX court. TX tort law allows strict liability,
        Iraq does not. Texas state conflict of laws holds that the tort
        law where the accident occurs (Iraq) are applied therefore no
    3. Burden
      of Proof
      The fed court must allow the rules governing the
      allocation of the burden of proof in force in the state where the
      federal ct is sitting
    4. Procedural vs
      Substantive distinction
      Erie v. Tompkins holds that state
      common law controls in “substantive” matters. But federal rules
      and policies control in matters that are procedural

      1. Federal Rules take
        precedence: Erie only applies when there is no controlling federal
        statute because of the RDA → ask (1) Does the rule apply to the
        issue? (2) Is the rule valid under RDA? If yes to both then follow
        federal rule.

        1. Does the rule apply? →
          ex RULE 3 says action “commenced when filed” P files before
          SofL but serves after! KY law says Statute of Limitations
          is satisfied when process is served. Here RULE 3 does not
          specifically address SO STATE Statute Of Limitations law
          must be followed in a Fed Ct therefore the action is too
        2. Is the Rule Valid?
          RDA says the rule Must not “abridge, enlarge, [or[ modify
          the substantive rights of any litigant.” But as long as the
          rule is procedural it will satisfy this test. NO FEDERAL rule has
          EVER been found to violate the “no abridge, enlarge, modify”
          test of the RDA. ie FEDERAL RULES
        3. Illustration P
          sues D in Mass Fed Ct. D is executor of an estate. P serves Ds
          wife by leaving the summons at his dwelling. RULE 4(e)(2) allows
          leaving at dwelling BUT Mass has an exception for service on an
          executor of an estate which says you cant leave with someone
          else. Hanna v. Plumer
          HOLDING follow the Fed
          RULE here because it trumps any valid State Rules
      2. Case
        not covered by a Federal RULE but is still procedural.

        1. Bird v. Blue
          Rejected a Pure Outcome Determinative Test.
        2. Instead of outcome
          determinative the court now BALANCES which rule is WEIGHTIER.
          Where the state interest is fairly weak follow Fed if the Fed
          policy carries more WEIGHT

          1. Judge/Jury allocation:
            Follow Federal policies

            1. Byrd v. Blue Ridge Is
              the P an employee (workers comp) OR a contractor (tort) Here
              the federal policy is stronger, the state policy is not as
              concerned with the parties rights and the choice is not very
              outcome determinative.
          2. Unanimity
            for Jury trials according to Federal Rules will be applied (as
            apposed to a less than unanimous state jury policy to avoid
            hung). The state policy has little weight here ans is less then
            outcome determinative.
          3. Statute
            of Limitations → FOLLOW STATE SofL because the state’s
            interest is heavily outcome determinative
      3. Federal
        statute (not RULE) on point: The Fed Statute Will Control the
  3. Federal
    Common Law

    1. Federal Common law
      still exists
      BUT Erie makes it clear there is no general common
      law, there are still particular instances when fed common law is
      applied. Fed court can occasionally disregard state common in favor
      of fed common-law
    2. Federal Question cases
      → Federal Common Law APPLIES usually

      1. Ex P sues the D(U.S.) in
        TX fed court, the court should apply federal common law here even
        if the US would not be negligent under TX law. So the P would win
    3. Diversity
      Occasinally Fed Common can be applied in diversity ie
      when a D asserts a defense that uses federal lawnmower
    4. Fed Common Law in
      State Court:
      States will occasionally be required to use Fed
      Common Law

      1. Ex
        P brings a claim in state court against D(a city) for deprivation
        of civil rights. State law requires claim within 120 days. HOLDING
        state-court may not impose this state rule since it would Abridge
        Federally granted Rights Felder v
      2. VI. JOINDER
8. Multi Party
Claims and Litigation

  1. Counterclaims
    1. RULE 13 counterclaims are

      1. Compulsory
        1. Arises out of the same
          transaction or occurrence
        2. If you fail to state a
          compulsory counterclaim you cannot bring up in later litigation

          1. If you cant get PJ
            over additional parties then it is not compulsory
      2. Permissive
        1. The counterclaim has
          nothing to do with original transaction.
      3. Default
        judgment may be entered for a counterclaim if the party fails to
        answer RULE 55(a)
    2. Claims
      by third parties: a counter claim may be made by any party against
      an “opposing party” RULE 13(a), RULE 13(b)

      1. Third Party Defendant
        can counterclaim against the original D or against any P (if
        against P there must be an original claim against the TPD to
By P: a
counterclaim to a counterclaim (If D counterclaim is about banana
peel, now any claim P has over banana is compulsory)

      1. New parties: D in a
        counter claim may bring in another party X on the P side so
        D -v-> XP
    1. Subject
      matter jurisdiction: the SMJ for counterclaims depends on

      1. Compulsory counterclaims
        are covered in supplemental jurisdiction §1367 and require
        NO independent SMJ
      2. Permissive Counterclaim:
        Requires independent SMJ not withing courts supplemental
    2. Statute
      of Limitations on Counterclaims

      1. Time barred when P sues:
        If D’s claim was time barred already when P sues then probly wont
        fly as a claim (but can probably be used as a defense if it was a
      2. Time barred after P
        sues: the counterclaim will probably be allowed.
  1. Joinder
    of Claims

    1. Joinder of claims
      generally: Once a party has made a claim against some other party,
      he may then make any other claim he wishes against that party. RULE

      1. Never Required by RULE
        18(a) however (rules against splitting a cause of action my stop
        you from bringing it later)
      2. SMJ not affected:
        Supplemental under 1367 does not apply to a joined claim.
        (But SMJ probably wont be a problem because P v D can aggregate
        and it will be diverse already)
  2. Joinder
    of Parties

    1. Permissive
      of Parties RULE 20 – Gives the right of to join (1)
      multiple plaintiffs to join together P P P v D AND (2) P right
      to sue several co-defendants P v D D D

      1. Joinder of P: P may
        voluntarily join together IF

        1. It is a single T/O
        2. OR a common question of
          law or fact
      2. Joinder
        of D: If one or more P has a claim against multiple D same test IF

        1. It is a single T/O
        2. OR a common question of
          law or fact
        3. Joinder of D is ALWAYS
          at the P discretion
    2. Jurisdiction
      in permissive joinder

      1. Personal jurisdiction
        must be met for EACH D and each D must be:

        1. Served with process
        2. Ct must have PJ (by min
        3. Long-arm limits: each
          must be amenable to suit. Cts follow the long-arm where
          they sit.
      2. SMJ
        for joinder of parties
        : All parties joined under RULE 20 must
        meet SMJ supplemental generally doesnt apply to Rule 20 joinder
        of multiple defendants

        1. Diversity MUST BE
          COMPLETE for joinder of parties
        2. Aggregation
          as long a ONE P MEETS the requirement [Exxon Mobil v Allapattah
          Serv In]

          1. Where the RULE 20
            Joinder involves multiple D’s supplemental jurisdiction does not
            apply even for the amount in controversy, EACH D must have
            claims against him meeting the jurisdictional amount
          2. P1 $80k —> D1$15k t/o> D2
            D2 claim must be dropped in Rule 20
            joinder doesnt meet jurisdictional amount requirement
    3. Compulsory
      : situations where additional parties MSUT be joined

      1. Two categories
        1. Necessary parties:
          Less important parties that (1) must be joined if it can be done
          (2) if there are jurisdiction problems with this party the action
          will continue
        2. Indispensable
          : Action must be dropped if this party cannot join
          RULE 19(b)
      2. Necessary
        : a party is necessary – and must be joined if
        jurisdictionally possible – if the party is not “indispensable”
        and either OR of these is met ::

        1. Incomplete relief: In
          the parties absence complete relief cannot be given to the
          parties OR
        2. Impaired interest: The
          absent party has an interest relating to the action, and trying
          the case without them will impair that party’s interest or leave
          one of the current parties open to multiple or inconsistent
      3. Indispensable
        : If a party meets the requirement for necessary the
        court will then decide if the party is indispensable

        1. Consequences of
          : IF indispensable then the action is
          dismissed without this party
        2. Looks to 4 factors
          1. (1) the extent of
            prejudice to the absentee, or those already parties
          2. (2) the possibility of
            framing the judgement so as to mitigate prejudices
          3. (3) the adequacy of
            remedy that can be granted in the party’s absence
          4. (4) whether the P will
            have an adequate remedy IF the action is Dismissed
      4. Jurisdiction:
        Where a non-party who must be joined if feasible does not meet
        jurisdiction or amount in controversy then he cannot be joined
  3. Class
  4. Intervention
    1. RULE 24 you can enter
      yourself into a lawsuit by intervening

      1. Two forms of
        intervention under Rule 24

        1. Intervention of right
          Rule 24(a); and
        2. Permissive intervention
          Rule 24(b)
      2. Distinction
        the intervention “Of Right” no leave of court is required.
        Conversely “Permissive Intervention” requires the courts
        discretion to let the party in.
    2. Intervention
      Of Right

      1. Three tests to determine
        IOR must meet ALL:

        1. Interest in the
          subject-matter (ie the property/transaction at issue) AND
        2. Impaired interest: Her
          interest in that ^ property will be impaired if she is left out
        3. Inadequate
          Representation: She must show her interest is not already
          adequately represented by the existing parties.

          1. NOTE if one of these
            tests fails She May Still get in under 24(a) IF a Federal
            Statute gives her the right (ie the U.S. May intervene in any
            case involving the constitutionality of an act of congress)
      2. Jurisdiction:
        Must meet independent SMJ to intervene based on diversity

        1. Intervention is NOT
          covered by supplemental juris 1367
    3. Permissive
      The new party merely must have a “claim or
      defense” that involves a “common question of law or fact”

      1. Up to the discretion of
        the trial court, rarely reversed on appeal
      2. Jurisdiction: intervener
        MUST meet independent SMJ
  5. Interpleader
    1. Interpleader allows a
      party who owes something to 2 or more people to have them “fight
      amongst themselves” to decide who gets the cash.
      ex. X
      and Y (fighters) both claim ownership of a bank account at Bank Y,
      the Bank can tell X and Y to fight each other for it first an then
      the bank only has to pay the winner
      To avoid double liability

      1. Federal Practice allows
        two kinds of Interpleader

        1. Statutory
          under 28 USC § 1335 AND
        2. Rule Interpleader
          under RULE 22

          § 1335
          If no
          FQ what kind of diversity?
          or more Claimants (fighters) must be diverse
          can service be made?
          service §2361
          FRCP rules
          Amount $
          the stakeholder (bank) deposit the amount in dispute with the
          Yes No
          the stakeholder (bank) claim that he is not liable to any of
          the claimants?
          Yes Yes
    2. Federal
      Statutory Interpleader § 1335
      allows a person holding property
      which is or may be claimed by two adverse parties to “interplead”
      them to fight it out among themselves

      1. Benefits to the
        (bank) are nationwide service and relaxed

        1. § 2361 You
          “served by the United States marshals for
          the respective districts where the claimants reside or may be
          found” nationwide service
        2. Diversity is satisfied
          as long as two claimants (fighters) are diverse
        3. Amount in controversy
          exceeds $500 (NOT $75k)
      2. The
        stakeholder (bank) commences the action and places the property in
        question with the court, OR posts a bond for that amount

        1. Even though the
          stakeholder gives the property to the court he is not estopped
          from claiming he doesn’t owe Either Party!!
      3. Restraint
        on other suits: once the interpleader has begun the court can stop
        the claimants from starting OR
        any other action
        anywhere that would affect the property
    3. Rule
      Interpleader RULE 22
      allowed for
      any stakeholder who may face “double or multiple liability”

      1. Jurisdiction Rule 22 has
        NO EFFECT on Jurisdiction and Venue Requirements

        1. Complete Diversity
          REQUIRED between stakeholder and claimants
        2. Service: is the same as
          any other diversity action = within the state where the district
          court sits OR according to Long-Arm statute
        3. Amount must exceed
        4. No deposit required for
          the property at issue
        5. The stakeholder may
          deny liability to the claimants RULE 22(1)
  6. x
  7. Impleader (Third Party

    1. Impleader
      right generally: RULE 14(a) a defendant can implead a party that is
      liable to him for all or part
      of the claim against him from original D
    2. Claim must be derivative:
      The TPP may not cliam that the TPD is the ONLY one liable to the P,
      and that he himself (TPP) is not liable at all. BECAUSE the TPD is
      only liable IF the TPP is liable to the original P

      1. Alternative Pleading:
        However the TPP is not precluded from claiming an alternative
        pleading that neither he nor the TPD is liable to the P at all!
      2. Partial Claim: the TPP
        may also claim that the TPD is only liable for a portion of the
    3. Leave
      of court
      permission to follow a non routine procedure
      NOT necessary for Impleader, AS long as the TPP serves summons and
      complaint to TPD within 10 days of providing his answer to the
      original P’s complaint 14(a)(1). After 10 days the courts
      permission is required.
    4. Impleader
      by P
      RULE 14(b)
      the P can ALSO implead a new TPD
      in response to a counterclaim by the D
    5. Jurisdictional
      SMJ and PJ are
      relaxed for impleaded Third-Parties

      1. 100 mile bulge: service
        may be made within 100 miles of the courthouse even if outside the
        long-arm RULE 4(k)(1)(B)
      2. Supplemental
        Third Party
        claims/impleader ARE covered under supplemental jurisdiction §
        1367 ie TPD citizenship and amount are irrelevant
      3. served
        by the United States marshals for the respective districts where
        the claimants reside or may be found
      4. Venue:
        As long as venue was proper
        between original parties then no effect with TPD
    6. Additional
      Claims involving TPD

      1. Claim by a TPD can
        include (1) counterclaims against TPP permissive/compulsory (2)
        cross-claims against other TPD (3) claims against original P →
        must be same T/O (4) any counterclaim against the P if the P has
        made his own claim against TPD and (5) impleader claims against
        persons not already part of the suit → the impleaded can

        1. Supplemental
          Jurisdiction: All of the above claims ^ are covered by
          supplemental jurisdiction EXCEPT Permissive Counterclaims (1/p)
        2. Defenses: a TPD may
          also raise the same defenses that the original D could have
      2. Claims
        by original P → the original P may assert any claims against the
        TPD if same T/O

        1. Jurisdiction: A claim
          by P against TPD must have independent SMJ
    7. Dismissal
      of Main Claim: If the main claim is dismissed the court is at its
      own discretion tho hear Third Party Claims that relate to it
  8. Cross-claims
    1. Definition
      a claim against a co-party P v P
      is a cross-claim
    2. Requirements
      1. Same
        RULE 13(g)
      2. Cross-claim must ask for
        actual relief

        1. ex D1 claims he is
          blameless and D2 is liable for all Ps claims. This is NOT a
          cross-claim, instead it is merely asserting a DEFENSE.
    3. Cross-claims
      Never Compulsory
    4. Supplemental
      jurisdiction applies §

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