Backup of Civ Pro – LSL

8/7/2019 Backup of Civ Pro LSL

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Civ Pro

TOCI. Personal JurisdictionII. Notice / Opportunity to be heard

III. Subject Matter JurisdictionIV. VenueV. Challenging Forum SelectionVI. Erie DoctrineVII. PleadingVIII. JoinderIX. DiscoveryX. Pre Trial AdjudicationXI. Trial and Related MotionsXII. AppealXIII. Preclusion Doctrines

I. Personal Jurisdiction

A. In what states can the P sue the D- this is the big question.o No differ with state of fed court, only if we have it in Michigan.

o In any case it is the court that issues a summons to the D. So, the court must

have power (jurisdiction) over the D.I. Power over DII. Or power over property

B Three types of PJ:1. In personama. Court has power over the D, herself. D has some connection with forum,

she did something there, she lives there, she was served there, domiciledetc.

2. In rem

a. Cant get In personam, so the court has power over the Ds property.3. Quasi in rem

a. Cant get In personam, so the court has power over the Ds property.

C. Due process

a. Clause tells states how far that can go to establish PJ (sets the limit, circle wemust stay in)b. Has to fall in the Due Process circle

i. This makes it constitutionalii. Just b/c it is constitutional does not mean that there is PJ

Watson, C Mid Term Civ Pro 1


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D. Two step process in establishing PJ1. Does a statute grant PJ? Long arm statute etc.

a. If not there is no statute is no jurisdiction.2. If so, assess whether the exercise of jurisdictions on these facts constitutional

(constitutional analysis / falls in due process circle)?

I. A. In personam

Two types:1. General Jurisdiction

a. A D can be sued in the forum for a claim that occurred anywhere in theworld.

b. If California has GJ over you, you can be sued in California no matterwhere it occurred.

2. Specific Jurisdiction

a. More narrowb. SJ gives state power over you, but only for a claim that arose in that

forum.

A.1 Constitutional Standard (Due Process Analysis)

Pennoyer v Neff

Stressed astates power over an individual

Four bases for in traditional bases personam jurisdiction1. D was served with process with process in the forum (presence)

a. Gives GJ of the Db. Means D as present when served by process

2. Ds agent was served with process while in the forum

a. If D agent is in forum, is served and is capable of being served3. D is domiciled in the forum

a. Gives GJ of claim anywhere in the world4. D consents to jurisdiction

a. Openly / willingly by contractb. Inadvertently, by failing to objectc. It is a protection to D, but can be waived

Pennoyershows it is difficult to gain in personam jurisdiction

Hess v Powloski

Supreme Court

o Hess was a citizen of Penn, he drove to Mass, and is involved in a car crash.

o He hurts Pawloski, and gets out of Mass before being served with process.

o He is good? No, there is a statute (non-resident motorist act) if you are

involved in a car crash you have consented to jurisdiction and have appointed anagent for service of process.



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o Supreme court upheld jurisdiction over Hess

o There was service of process to Hess agent, even though Hess did not know

Implied consent driving on roads

By using the roads, Hess consented to jurisdiction, and appointedsomeone as an agent.

o Keep in mind this is only SJ, not GJ.

International Shoe v.

Court gives us a new doctrinal formula to restate principles of PJ (make it easier)the court has jurisdiction if the D has such minimum contacts with the forum so

that exercise of jurisdiction does not offend traditional justice and fair play

o This test is flexible, can be interpreted in different ways

o It is clear that you an serve process on the D outside the forum (as long as

they have such min contacts)o Nowhere does it overrule Pennoyer

o This is the test if the D is not present

o There seems to be 2 parts to the test:

o Contact test

o Fairness test

McGee v International Life expands Shoe

o A Texas Insurnace company is sued in California, and it only has one contact with

the state.o Is as allegedly breached that one contract.

o Does Cali have jurisdiction over the insurance company? Yes

o Even though there is only one contact, the court stressed 3 things:

Dsolicitedthe contract from Cali (reached out to Cali)

Notion ofrelatedness

Ps claim arises from Ds contacted with Cali

Might make up for the small amount of contact, makes iteasier to get PJ

States interest

Cali had an interest in protecting its people from being

taken advantage of.

Hanson v Denlka narrows Shoe

ContactNo purposeful Availment

o Case that shows no jurisdiction

o Involved rich Penn woman

o She formed a trust with the Delaware bank, as a trustee



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o Trust relationship was for years, even as she died in Florida

o Dispute in FL over who gets the estate

o Does FL have in persoman jurisdiction over the Deleware bank? No

o Even though the bank had a relationship with her while she was in

Florida, they had no relevant contact with Florida.

*Personal availment- to be a contact, it must result from the Ds personal availment ofthe forum. The D must reach out to the forum in someway.

o Here, the bank did a relationship with Florida, but not

because of anything the bank did, its because she movedthere.

o As opposed to McGee, where the ins company sought out a

policy in Cali

World-Wide Voltzwagon v like Hanson, no PA

contact

o Held no jurisdiction

o A family wants to move from NY to AZ

o They buy an Audia in NY

o On the way to AZ they are in a crash in OK, car explodes

o They sue in OK alleging that the car was defective

o Four Defendants

1. VW clear jurisdiction, they do biz in OK (every state)2. VW importer clear jurisdiction, they do biz in OK (every state)3. Regional distributor (world Wide) only did biz in several states, not

OK No jurisdiction, no relative contact with OK4. Retailer (Seaway) only did business in NY. No jurisdiction, no

relative contact with OK

in both cases there was a unilateral act of the P, not

of the D

no personal availment, did not reach out to OK

o foreseeability- it was foreseeable that the car would get to OK, and it is a relevant

factor, but not forseeablilty that the car would get there. It must be foreseeablethat the D gets sued in OK.

It was not foreseeable that the D would get sued in OK

Why not? Court did not see it that way.

Maybe if the state was closer? Maybe

Calder v Jones Calder effects test

o It makes it clear that the D need not enter the forum to meet Shoe test

o People in FL caused an effect in Cali (defamation thru a published article) so they



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were subject to jurisdiction in Cali

Burger King v.

fairness

o

Contract case, D are 2 franshisees in MIo They get sued in FL by Burger King (headquarters)

o Remember2 elements of minimum contacts (Shoe test)

1. Min contacts2. Fairness

o There must be a relavant contact, start with this. No contact, doesnt matter how

fair it is.o Court suggested that there is a sliding scale

If fairness is overwhelming enough, lesser contacts may be oko Contact was easy.

There was a contract, with FL company

Trained there

Agreement Under FL lawso Fairness was not easy

Burden is on D that it is so gravely incontinent that the D is at a

severe disadvantage in litigation.

D said it was not convenient to go to FL

SC said, the burden is on the D that the forum is unconstitutional.

Difficult to show that is so gravely inconvenient that Dshould not have to go.

Wealth does not matter

Asahi Metal Industry v Stream of Commerce

Stream of Commerce Case: I make valves in state A, I send them to State B. Thatmanufactures puts valves in widgets, and sends them to states C, D, and E. My valveblows up in C, D, or E. Can I be sued in C, D, or E? SPLIT, NO DEFINITIVEANSWER. IF THIS IS ON TEST, DISCUSS BOTH THEORIES

There is no authority coming out of this opinion only two theories1. (brennon) there is relevant contact, if I put product into stream of commerce and

reasonably expectthat it would get to C, D, or E

2. (oconnor) you need more than that, you need that plus an intent or purpose toserve state C, D, or E.a. Maybe advertisement, customer service there etc.b. Otherwise it is a unilateral act of the P

Burnham v

o NJ D is served with process in Cali, for a NJ lawsuit



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o Suit is for something that happened outside of Cali, in NJ

o D was served with process in Cali

o Does presence when served give GJ? bc this did not happen in Cali, so GJ is

needed

Yes, but justices did not agree on why

o Again, no law, but there are 2 more theories:1. Presence in the forum does give GJ, you do not need to go through the min

contacts. (Scalia approach)o BC presence is okay without contacts (historical approach)

o Being voluntary doesnt matter

o contacts is the test, if personal service is not avail.

2. Historical pedigree does not matter, you must apply min contacts. (Brennonapproach)

o Apply Shoe test every time.

o It is okay here be D meets min contacts test, by being in Cali for 3

days, soaking up the benefits of Cali. He availed himself.

Why 3 days? It is very unpredictable.

Being voluntary may matter

B. General Jurisdiction

I. There is GJ if the D has continuous and systematic ties with the forum

o D can be sued in the forum on a claim that arose anywhere in the World.

o If the Ds contact is continuous and systematic

o Difficult to draw the line

Easy when a company has its headquartered in a state or aperson is domiciled in a state

But also when you are in a state, soaking up the benefits of thestate

*****Overview of Constitutional analysis of in personam for EXAM: *****

1. Does traditional basis apply? (from Pennoyer, and

mention split in Burnham. May not have to do Shoe)

2. Do Shoe if there was no traditional basis (or if there is

traditional basis, based on Brennon)

a. Is there a relevant contact btwn D and forum?

(Contact must come first)

i. Must be result from purposeful availment

(D must reach out in some way)ii. Must be foreseeable that D can get sued

there

b. Is jurisdiction fair? (Reasonable)

i. Relatedness does the Ps claim arise from

Ds contact with the forum?

ii. Inconvenience for D- diff to prove. D has to

show that it is so gravely inconvenient that



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it is not fair to litigate fairly

iii. States interest- state may have an interest

in having the case there.

iv. Ps interest P may have an interest in

litigating home (maybe injured, cant move)

v. Interest in efficiency have litigation in oneplace

vi. Interstate interest in shared substantive

policies- (Kulko refused to have

jurisdiction because of family)

-Framework of how to tackle constitutional questions on exam1. Ask does one of the traditional basis apply?

a. Presence when servedb. Domicile

c. Consentd. Service on an agenti. If so, ID the traditional basis

ii. And still do a min contacts analysis2. Min contacts analysis two pronged process

a. Must have a contact, some relevant contacts btwn D and forumi. Two factors:

1. Purposeful availment, D must reach out to the forum insome way. Not the result of a unilateral act of P

2. Foreseeability that the D can get sued in that forum, not justthat the product would get there

b. Fairnessi. A high degree of fairness can make up for less contact

ii. Three elements1. Relatedness, does the Ps claim arise from the Ds contact

with the forum?a. Substantial contact can override relatedness

2. Inconvenience for the D and the witnessesa. It is a burden on the D to show the forum is

unconstitutionally inconvenient. Very difficult.i. So gravely inconv, that it would not be fair

ii. Money does not matter3. States interest

a. Does the state have an interest in providing itspeople?

4. Plaintiffs interest **5. Legal systems interest in efficiency **6. Interstate interest in shared substantive policy **

-What is still unclear to this day?



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1. Stream of Commerce2. Whether presence when served is enough to give GJ

I. A.2 Statutory inquiry

A. Analytically on an exam, you look at the statutory analysis FIRST *Every state has

PJ statutes.

-Typical basis for the statutes:o GJ over D who is served with process in the forum

o GJ over a D who is domiciled in a forum

o SJ from Non resident motorist statute (Hess)

o Implied consent when you drive in a state.

o Long arm statute

o Like non residents, but for other claims

o Two types:

1. California type: statute reaches to the full extent of due process

2. Laundry list long arm (SJ): a non resident D can be sued in our stateon a claim that arises from doing the following in our forum:

o Transact business

o Use real property

o Enter a contract

o Commit a tort- always on exam

This is interpreted in different ways

If I make widgets in state A, and I sell it in state B, it

then blows up.

Was that tort in A or B?

Some says the tort is where the injuryoccurred, (hurt in state B) some say its where

you made the widget. (Negligent in state A)

o Language is different in every state, be careful

o Conduct anybusiness in a state

o Conductsubstantialbusiness in a state

o Language can be interpreted differently

o Tortuous act form a valve that was sent out of state

Did the tort occur in the state it was sent to?

Did the tort occur when the valve was produced?

HYPO:P lives in Washington, drives to Oregon. Goes into clock shop, buys a clock and takes itto Washington. P puts it on the wall. Bird comes out every hour. Bird is propelled andhits P, P is injured. P wants to sue shop in Washington State on shop, D is a Oregonclock maker.

o Is there a statute?



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o Is there a traditional basis? 4 elements.

Presence when served no

Domicile no

Consent no

Service on an agent no

o Is there a long arm statute? Washington has jurisdiction over one that committed a tort in the

state of Washington.

Argue both ways (two thoughts)o It was in Oregon where the clock was made

(negligence)o Injury took place in Washington, therefore tort was

in Washingtono Then, go to constitutional analysis

o There is no traditional basis, so it has to be Shoe

o

Left with minimum contacts.. Two ways Is there a relevantcontact with shop and Washington? maybe

Purposeful availment- supposed facts are added, oninterstate highway, neighboring states, shop advertises inWashington. (Looks like McGee- advertised)

o If these were not there it is like WW Volts, the P

took it there, no purposeful availment.

Foreseeability that shop will be sued in Washington

Fairness (5 elements)

Relatedness, did lawsuit arise directly from contact? yes

Convenience? Is it convenient to go to Washington (not

gravely inconvenient?) States are neighboring States interest state may have interest

Ps interest P wants to sue at home, and they are injured

Shared sub policy - ?

I.B. In rem and quasi en rem

A. jurisdiction over Ds property (remember we always prefer in personam)

o Maybe you cant get in personam b/c long arm statute does not apply.

o Ex/ some long arm statutes do not include defamation

*Remember this applies to jurisdiction over ones property

In rem: lawsuit is about the property, i.e. about ownership or right of propertyQuasi In rem: lawsuit that has nothing to do with ownership of the property, we are onlyusing it to establish jurisdiction. It is no dispute about if the D owns it.

** Both are constitutional as long as property is seized at beginning of case** perPennoyer



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Same steps as with in Personam1. Statute (not long arm)- attachment statute, every state has one, allows attachment

(seizure) of property of D2. Constitutional

a. Schaefer says seizing at outset is necessarily, but not the only thing, D

must meet Shoe.b. Min contacts

I.C. Full Faith and Credit

What if we have a judgment that is valid, and we win a personal judgment is renderedon the D.

What if the D cannot / will not pay?o P can go to court to have property seized and sold to pay off.

o Judgment of 100k in MI, we seize property in MI worth 40k. Can we go to IL to

get other property to pay difference?o Yes, it is entitled to Full Faith and Credit

o In person was created, so we can follow D anywhere

This is different with en rem and quasi en rem. These are not personal but property.o If we have en rem jurisdiction, can we go to another state to seize property?

o No, it is only good to extent of jurisdiction (that of the property)

II. Notice and the Opportunity to be Heard

Due Process requires that D be given notice and have opp to be head

o Notice is provided by service of process

o Opportunity to be heard is by procedural rules that allow D to respond / engage

in litigation

A. Service of Process

o Vary from state to state

o We will look at federal Rule 4

Rule 4- seven main aspects1. What is process?

o 2 documents, (1) a summons notice formcourt telling you that you are sued and you mustrespond. Symbol of the courts power over theD (2) copy of the complaint

2. Service can be effected by any non-party who is at least18 years old Rule 4C2

3. When do we serve process?o Within 120 days after filing complaint, if you



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do that it will be dismissed without process(unless you can show good cause) Rule 4m

4. How do we serve an individual?o Rule 4e2 (1) personal service- deliver to the D,

can be done anywhere in forum state (2)

substituted service serving substitute, okay ifat Ds dwelling house or usual abode and youserve someone ofsuitable age/discretion whoresides there (3) serve the Ds agent, maybeappt by law ..(4) 4e1 also says court may useany method that is allowed state law where thefederal court sits and where the service iseffected

5. How do you serve a corporation?o Rule 4h1- must serve an officer or managing /

general agent of the corporation they must

have enough responsibility that they would getit to the right place. 4e1 also applies,state lawsare available

6. Waiver of service

o Rule 4d- first class mail, you send process and

waiver form. If she returns it, it has waivedservice of process, if she does not waive then theP would have to have to be formally served. Dmay have to pick up tab.

7. Where do we serve processo Rule 4k1a- we can server thought the state in

which the courts sits. That fed court can alsoserve out of state to the state extent that a statecourt can. (i.e. long arm statute applies)

Exceptions: 4k1b- bulge rule you canserve out of state without statute if it iswithin 100 miles of the fed courthouse,but it does not apply to service onoriginal D, only parties joined later

4k1c, d fed statutes may allow formore services out of state

B. Constitutional element to notice.

Mullane v National Central Hanover Bank

**Notice must be reasonably calculated under all the circumstances to apprise the D

of the suit.**

The fact that they did not receive it does not matter here. (if they are aware that the D did



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not get it, there may be issues)

What about publication notices? Usually not going to reach people. But in some cases(when we dont know who they D is) it is reasonable calculated. This is the last resort.

In Mullane, bens of a trust who could not be identified had to be served by publication,there was no other way.

C. Special Problems about Opportunity to be heard.

III. Subject Matter Jurisdiction

Now we have to figure out what court we go to (State of Federal)

PJ is over theparties; SMJ is over the case (and claims over case)

State v Federal o

Federal courts have limited SMJ (only certain kinds of cases can be heard)o 2 ways (does not mean that is MUST GO

Diversity of citizenship

Federal Question

There are sum Fed Questions that HAVE to go to courto Anti trust, patent infringement, tort act, etc

o State courts have General Jurisdiction

o It can hear any cognizable claim

A. Diversity of Citizenship

1332A1- statute

o 2 requirements of diversity of citizenshipo Citizens of different states

6 sub rules

(1) Complete diversity rule- there is NOdiversity if any P is a citizen of the same state asany D. (2) define citizenship of human being-for an American citizen, he is a citizen of thestate where he is domiciled. Domiciled- must bepresent in the state and form the intent to makethat your permanent home. Only one domicileat a time. You retain your domicile until youchange it (subjective) to change domicile at 18,you must have physical presence andneed theintent to make new home (3) citizenship of acorporation- do notmention domiciled. It isdefined by statue, 1332C1. Corp is a citizen ofstate where it is incorporated andwhere it has aPPOB (only 1 PPOB) (not necc where they havea big plant). Different tests- Nerve Center



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where the biz is directed (senior officers),Muscle Center (place of activities), most useTotal Activities test. (4) Citizenship ofunincorporated biz- (union / partnership) lookto the citizenship of all members (i.e. law firm,

if 50 partners citizens of 50 states, so is firm.(5) Representatives sue on behalf of others? Section 1332 c2; descendants, minors,incompetence- you look at citizenship of thepeople who are being represented (7) classaction- look at the citizenship of therepresentative, not the ones being represented.

HYPO:Person born and raised in Cali, Cali is his domicile. Turns 18, goes to college in Minn, helikes it there but doesnt want to stay or go back to Cali. After 4 years, he goes to lawschool in FL for 3 years, doesnt want to stay either. Goes to med school in Texas for 4

years, same thing, not sure where he wants to live. Then goes to the marines for 20 years.He is domiciled in Cali, because he never changed it.

o Amt in controversy must exceed 75k

4 sub rules

(1) 1332a1 the amount must exceed $75knotcounting interest on claim or costs. (2) Ps claimgoverns unless it is legally certain they cantclaim as much. (3) The Ps ultimate recover isirrelevant to SMJ the court may have P pick

up costs if under $75k. (4) Aggregation- iswhere we add together 2 or more claims to getover $75k (P sued D one claim for 30k, oneclaim for 50k) we aggregate claims if there is 1P v 1 D. (even if they are unrelated) and youcannotaggregate if you have multiple partieson either side. 1 P v 2D BUT if we havejointclaims you go with the total value of that claim(P sues 3 joint tortfeasors for $80k)- they arejointly liable to him, so its all good. Whybecause any 1 of them can be liable for entire

claim.

*** Fed courts will not hear domestic relations or probate hearings***

means that case CAN go to Fed court , it does not have to. Only a few have to:

1. bankruptcy

2. patent / copy write

3. antitrust



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B. Federal Question Jurisdiction

a. 1331

i. A case that arises under the federal law1. Citizenship and amount in question is irrelevant

b. How do we know that it arises under federal law?

i. Two rules1. Look only at the Ps complaint, do not look at anything theD does (defenses, counterclaims)

2. It is the Ps claim that must arrive under federal law, ignoreanticipated defenses (well pleaded complaint rule)

a. Ask your self: is the P enforcing a federal right?Does it give the P a right?

Yes- federal questionNo- notb. Louisville & Nashville Railroad v Mottley

i. Couple injured on railroad, they tooklifetime passes from the railroad. They were

riding for free, but congress passed a statutethat there are no free passes. Mottley doesnot honor them anymore. Mottley sues forspecific performance. The complaintmentioned the federal law, but it is not afederal question. They are not enforcing afederal right. They are anticipating

defense. This is a breach case.

c. Supplemental Jurisdiction

i. 1367- The P must have one Div or Fed for Federal Courtalready, because it is already in Federal Court. BUT there maybe addition claims asserted in the course of the case. For everysingle claim that it asserted in Fed Court, there must be Fed

SMJ. So, think about every claim with Fed Ques / Div , and Amt.1. What if an additional claim does not meet Diversity / Fed

Question?a. This is when Supplemental Jurisdiction comes in

1367b. Allows a Fed Court to hear a claim that otherwise

cannot get into Fed Court (non diversity / fedquestion), so it is our friend.

i. Ps original claim MUST be already in FedCourt.

ii. UAW v Gibbs1. P asserted 2 claims against D, one

under Fed Law and one under statelaw. Both came from same realworld event (transaction).

2. P (TN) >FQ>state law D(TN)a. Claim 1= fed question,



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belongs, (so case is in Fed)b. Claim 2= state law

3. The second claim does not invokefed question jurisdiction or diversity.Why is it cool? It is the part of the

same overall case as the Fedquestion claim. How do we know? Itarises from a common nucleus ofoperative fact with the jurisdiction-invoking claim (basically sametransaction / occurrence)

4. 1367- two stepsa. 1) Does 1367a grant Supp

jurisdiction to this claim? Yesif the claim meets Gibbs(same transaction CNOF)

b. 2) Does1367b cuts back onSupp Jurisdiction on certainclaims? Applies ONLY indiversity claims. ONLY killssupp jurisdiction for P. Itsays we take it away ininstances where (1) claim byP against parties joined undercertain rules (14, 19, 20, 24)(2) by rule 19 Plaintiffs and(3) over claims asserted byppl seeking to intervene as ofa P (24)

c. ** do you know these rules?

P (TN) asserted 2 claims against D (TN) 1 fed, 1 stateUnder 1367:Does it grant supplemental? (does it meet Gibbs?) yes, they both arose from same CNOFUnder 1367b:Does it take it away? No, this applies ONLY IN DIVERSITY CASES

HYPO GIBBS UNDER 1367 it will come out the same waySecond claim does 1367a grant supplemental jurisdiction? Yes because it came

from the same transaction. Does 1367b take it away? No, it only applies ONLY indiversity cases, not federal question cases.

d. Removal Jurisdiction

i. Allows a D (not P) to have a state court case removed to the

federal court (like a transfer)



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ii. Governed by 1441, 1446 and 1447

**RULES ABOUT REMOVAL**

1. GENERAL RULE: It is removable if the case meets Federal Subject

Matter Jurisdiction

2. EXCEPTION: you cannot remove a diversity caseif any D is a citizen ofthe forum. YOU CAN REMOVE A FED QUESTION CASE IN THISINSTANCE!!

HYPO:P (SC) ---- D1(NY) D2(GA) - claim is a state law for $1MM, filed in GA state court.Can D remove? NO, general is met, diversity. But D is citizen of forum. They couldremove if it was a Fed Question case.

3. All Defendants must agree to remove.

4. You can only remove to the Fed Distinct that embraces the state court.

5. You must remove within 30 days of SERVICE (NOT FILING) of thedocument that makes the case removable. (Usually this is the

complaint)and you cant remove after one year of commenced in state

court.

IV. Venue

Whats the diff btwn SMJ and Venue? SMJ told us we can go to Fed Court, Venuetells us which Fed Court to go to.

*There are 94 Federal Districts. So, which one??

A. Basic rules for Venue.a. When P files in Fed Court there are 2 basic choices:

i. 1391- you may lay venue in any district where ALL Ds reside(not necessarily where they are a citizen..

1. Sub rule: if all Ds reside in different districts of the

same state, then we can sue them all where any of them

resides. D1 northern Texas D2 southern Texas (can be

sued in either)

2. 1391c- where businesses reside for venue purposes? Inevery district where it is subject to PJ. Ford is citizen in 2states, but it resides in all 50 states.

ii. Any distinct where a substantial part of the claim arose.B. Transfer of Venue.

a. Going from one court to another court in the same judicial system.b. You can only transfer to another court in the same judicial system. (one

Fed trial court to another Fed trial court, not removal where you go to fed



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trial court to state trial court.)c. The original fed Court = transferor The other Fed Court = transfereed. 2 transfer statutes:

i. Under both, the transferee must be a proper venue and havePJ over the D. **MUST BE TRUE**

HYPO: D sued in Fed Court in Maine. D does not want to be in Maine, so he wants totransfer in Maine. He said he will waive PJ, he cannot do that. PROPER VENUE ANDPJ ARE NONE WAIVABLE.

ii. Statues:1. 1404a applies when the transferor is a proper venue.

(From one proper venue to another proper venue) this isbased on convenience (makes more sense). Maybe thatswhere the evidence / witness is, public and private factorsused to assess if this new place is the center of gravity.

2. 1406a applies when the transferor is an improper venue.

The court can dismiss or transfer.C. Forum non conveniencea. Where a court dismisses (not transfer) because there is another court

that is way more convenient (center of gravity)

i. ONLY do this when it is not possible to transfer (often because itis in another judicial system (country))

ii. P hates this bc usually foreign countries wont give you as much asUS.

iii. Often made with conditions (D has to waive some defenses)

Piper Aircraft v RainoLook at footnote 6

Plane Crash in Stotland, all the victims, pilot airline where Scottish, but the plane wasmanufactured in Penn. Suit was brought in Penn against the manufacturer. SupremeCourt dismisses. They looked at public and private factors and decided it should be inScotland. But it cannot transfer to Scotland.

V. Challenging Forum Selectiona. Special Appeared

i. If you want to challenge PJ, you can go to forum state but youhave a bubble. You do not subject yourself to in personam

ii. But you can only challenge PJ, nothing else. Otherwise you dosubject yourself to in personam

iii. Many state follow this.b. Federal Rules

i. Several challenges that should get out of the way, or you waivethem

ii. Rule 121. Tells the D, when you get sued, you have a choice of



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defensive responses.2. Within 20 days, you and these, or run the risk of default

a. Answer- a pleadingb. Motion- not a pleading, a request that the court

order something

i. 12B1. Lists 7 defenses; can be raised inanswer or motion (to dismiss)

a. 12B1 lack of SMJb. 12B2 lack of PJ*c. 12B3 improper venue*d. 12B4- insufficient process*e. 12B5- insufficient service of

process*f. 12B6- failure to state a claimg. 12B7- failure to join an

indispensable claim.2. Timing requirements; 12G / 12Ha. 12B2-12B5

i. Must be put in firstrule 12 response, orthey are waived.

b. 12B6-12b7

i. can be raised atanytime through trial

c. 12B1

i. can be raised anytime,NEVER WAIVED.

ii. Can even be raised onappeal.

HYPO:P sued D. D brings a motion to dismiss for insufficient service of process (12B5 motionto dismiss). Court denies motion. D has to answer. D files an answer, he says there is noPJ and Venue is improper (12B2 and 12B3). Yes, you can raise these at in any answer /motion. But it was waived, because it wasnt the first response.



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VI. Erie Doctrinea. The problem comes up in diversity of citizenship casesb. Fed court has to decide an issue, the question whether the court has to

use state law.

i. Black letter law: comes from Erie Railroad v Thompkins1. The federal court must apply state law substantive law.

a. So it is an issue ofsubstantive law, as opposed tosomething like procedural, then the fed judge mustapply state law.

b. Why? Erie says it is required by 2 things:i. Rule of Decisions Act- section 1652 of

judicial code1. If there is not federal substantive lawon point, you must use state.

ii. Constitution 10th amendment? Preserves tothe state all powers that have not been givento the feds in the constitution

c. Makes sense, because we are only in fed court dueto diversity

Erie Railroad v Thompkinso Thompkins was injured on a railroad track, train goes by and he is hit

in the head by the door (open)o

So this is pure substantive lawo Substantive law defines how the facts in the case will be

handled, as well as how the crime is to be charged. In essence,it deals with thesubstance of the matter.

o This is a matter of tort, what duty is owed to this guy, clearly state law

would apply

CONTINUE ERIE

VII. Pleadings

The documents that the parties file. We set forth our claims / defenses in pleadings.

A. Complainta. Filed by the P, itstarts the case.b. What goes in the complaint? Rule 8A.

i. 8A1- statement of grounds of SMJ. Because federal courts onlytake certain cases.

ii. Short and plain statement of the claim.1. Historically rules did not require detail. Did not sayfacts.

But Twombly and Iqbal changed that.



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2. You get three rules from the two:a. P must pleadfacts supporting aplausible claim.

(not just a possible claim, plausible)b. A court will ignore conclusions of law. (if P alleges

conclusory statements, defendant was negligent).

c. The court will use its own experience and commonsense to determine if a claim is plausible. (Highlycriticized)

3. Some areas you need more detail.a. Rule 9B- allegations of fraud or mistake, you have

to give details. (With particularity, Joe defraudedme)

b. Rule 9G- special damage? That does not flowordinary flow from an event. (Have to give detail,guy gets hit car and get normal damages, but alsohad nerve damage that gave him a permanent

erection.)iii. Demand for relief sought. Tell the court what you want. (Money,damages, etc.

B. Defendants Response

a. Rule 12

i. Within 21 days, after service with process, you must respond inone of two ways.

1. By motion

a. This is not a pleading. This is a request for a courtorder. During the case you will have hundreds ofthese. There are certain under Rule 12

i. 12E / 12F motion for more def statemnt /strike

ii. 12B- these are the basis for motion todismiss

2. By answer

a. This is a pleading. The defenses in 12B can beraised either in a motion or answer.

i. SMJii. PJ

iii. Venueiv. Insufficient process (rare, problem with the

document (summons and complaint))v. Insufficient services of process (more likely,

docs okay but not served properly))vi. Failure to state a claim

vii. Failure to join an absentee (non party) underRule 19- (indispensable party problem)

b. But, Rule 12 G and 12 H say:i. 12B2, 12B3, 12B4, 12B5 must be put in



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yourfirst Rule 12 response. (waivabledefenses)

ii. 12B6, 12B7 can be raised anytime duringtrial. You dont waive them by not havingthem in first response.

iii. 12B1 is never waived. Can be raised atanytime during the case, even appeal.

HYPO- P sued D. D files a motion to dismiss for insufficient services of process. So Dmakes his first response, for services of process. It is denied. Now, D files her answer,and in the answer she says there is no PJ or Venue. On the facts, the prof makes it clearthere is no PJ or Venue. No good. She waived them by not putting it in herfirst Rule 12response. Her first was PJ and Venue.

c. Two things must go in answer/i. Rule 8B- respond to the complaint, three

ways to respond to everything the P said.1. Admit2. Deny

a. Failure of deny is treated asan admission (exceptdamages).

3. Dont know (lack sufficient info)ii. Rule 8C1- Raise affirmative defenses

1. Denialyou say I didnt do it.Affirmative defense, you are injectinga new fact. If you are right you win.

2. Statute of limitations. Even if I didit, you waited too long. Statute ofFrauds, res judicada.

3. You have to plead these in youranswer, or you waive it.

VIII. Joinder

Rules that determine the scope of litigation. How big a case can be, how many parties.A. Claim Joinder by the P how many claims can be brought in one case

a. Rule 18A- can bring as many as you want, no limit, dont have to becommon, no same transaction. You may, you dont have to.

i. You have to assess jurisdiction.

B. **Claim Joinder by D**- D becomes claimant (sues someone)a. Counter claim- claim against an opposing party (someone who sued you)

i. Filed with your answer. 2 kinds1. Compulsory Counter claimRule 13A1

a. Arises same transaction or occurrence as the Psclaim. You mustassert that claim in this case,cannot sue separately.



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HYPO: A and B driving, gets into a car accident. A sues B. They litigate. Separatecase, B sues A. Case dismissed, its gone. Same trans or occurrence, so it is gone

HYPO: P (CT) (100k) D (FL) ; fed court.D has a claim back against the P, from same wreck. (compulsory)

D (90k) P ; this claim is compulsory, then go immediately into SMJ.SMJ? FL CT 90k; yes. We look at each claim individually.

2. Permissive Counter claim Rule 13Ba. Does notarise from same trans / occurrence. Does

not have to be brought in the case. You can butdont have to.

HYPO- HYPO: P (CT) (100k) D (FL) ; fed court.D has a claim back against the P, from same wreck. (Compulsory)

D (45k) P;

This is a compulsory counter claim, so go to SMJ. This does not invoke diversity, lessthan 75k. This claim by it self cannot be brought by itself. So, try supplementaljurisdiction? Yes, it meets Gibbs. Same transaction or occurrence. 1367 A give it? Yes.1367 B take it away? No, only from claims by Plaintiff. There is supp jurisdiction here.

b. Cross claim- Rule 13G- against a co-partyi. It must arise from the same trans / occurrence as the underlying

case.

HYPO- 3 car crash.

A(MS) (1MM) D1 (NY) ; D2 (NY) (1MM) A(MS)

D2 (NY) ; D2 (NY) D1 (NY)? No diversity. Supp?Gibbs is okay. Take it away? No. all good undersupp.

We represent D2. What claims can D2 assert in this case. 1. She should file acompulsory counter claim against A. 2. D2 may file a cross claim against D1. Why?Against a co party, and it arises from the same T/O.

c. Proper parties Rule 20Ai. Who may be joined? (for plaintiffs)

ii. She is deciding the suit.

iii. The test is same T/O, and raise at least one common question. Rule20A1

iv. What about co defendants?1. Same test.

d. Necessary and indispensable parties Rule 19i. whoshouldbe in the case.

ii. P determines how many P and D we have. This rule comes upbecause they left someone out. (a absentee (non party) is floating



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around. Sometimes the court will force the absentee into the case.)iii. Three steps

1. Ask who is necessary (required)?a. Rule 19A give you three tests when they ought to

be forced.

i. Rule 19A1A without A, the court cannotaccord complete relief among the parties.(efficiency)

ii. Rule 19A1B1 the absentees interest may beharmed if she is not joined. (Most important)

iii. Rule 19A1B2 As interest may subject theD to multiple or inconsistent obligations.

2. Is joinder of the absentee feasible?a. It is if there is PJ and bringing in the absentee does

not mess up diversity.b. What happens if joinder is not feasible? Step 3.

3. Proceed without absentee, or dismiss the case. Rule 19B,court decides.a. Four factors, 4th is most important. If the court

dismisses this case, will the P have an adequateremedy? Basically do not dismiss where the Pcannot bring it somewhere else.

b. If the court dismisses, we call the absenteeindispensable. Motion to dismiss under12B7.

HYPO- you own 100k shares of XYZ stock. But he claims you both bought it together.He sues XYZ corp. He is asking for a court order to cancel stock and issue in bothnames. Who is the absentee? Me. Are we necessary? Test 1. 19A1A. yes, because Iwill later sue. Test 2. 19A1B1. Harm to me? Yes, he wins my stock is canceled. Test 3.19A1B2. Focus on D. If A is not brought in, corp is subject to inconsistent obligations.YES.

IX.

Documents

Backup of Civ Pro – LSL