Barbri Notes Personal Jurisdiction

8/10/2019 Barbri Notes Personal Jurisdiction

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AsahiMcIntyre

I. Personal Jurisdiction (Are we in the right court?)a. Can the plaintiff sue the defendant in a particular state?

i. Going to be the same whether its federal court of state court. 1. The court must have power over something

a. They can only get power in two ways.i. (1) Power over the defendant herself.

ii. (2) Power over the defendants property b. Three types of personal jurisdiction

i. (1) In personum1. The court has power over the defendant themself2. She has various contacts with the forum

ii. (2) In rem1. The court h as power over the defendants property 2. Ex) Land, automobile, bank account

iii. (3) Quasi in rem1. The court has power over the defendants property

iv. Always prefer in personum1. If you cant and they have property in the forum, then youll try

to get them under in rem or quasi in rem .c. How do we know whether a court has power in any of these senses?

i. The Due Process clause of the Constitution sets the outer boundaries.They tell how far a court can reach in any of these three types.

1. If our case falls within the Due Process circle, then thejudgment is Constitutionally valid.

a. Entitled to Full faith and credit2. If the case falls outside of the Due Process circle, then the

judgment is void.a. No good, and not entitled to full faith and credit.

3. Kicker: The fact that it falls within the Due Process circle is notthe only thing that would make it valid.

a. Second step: The state must have a statute that grantspersonal jurisdiction in this case

i. The state has to take pj power by passing a

statute.d. Analytically on the exami. Is there a statute?

1. If yes, is jurisdiction constitutional?a. Does it fit within the bubble?

ii. Always start with the statute. A. In Personum Jurisdiction

a. Definition: When the court has power of the defendant herself.


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b. In personum jurisdiction will either two classified in two ways: i. General

1. The defendant can be sued in this forum, on a claim that aroseanywhere in the world.

2. Ex. If you live in Virginia, you can be sued on a claim that arose

in Virginia, or CA, or Australia. Anywhere. ii. Specific 1. Where the D is sued on a claim that arose in the forum.2. Ex. If VA has power, then youre being sued over something

that youve done in the state.3. Called: The Doctrine of Relatedness

a. Does the claim a rise from the Ds activities (contact) inthe forum?

b. If it doesnt, its only ok if we have general jurisdiction c. The Constitutional Limit

i. Pennoyer v. Neff

1. Gives us the traditional basis of personal jurisdictiona. (1) D is served with process in the forum.

i. Usually called PRESENCE ii. Gives us general jurisdiction.

b. (2) D agent is served with process in the forum.i. Agent is someone whos acting on your behalf.

c. (2) D has domicile in the forum.i. This gives general jurisdiction

d. (4) D consents to personal jurisdiction.2. Under this system it is very hard to get personal jurisdiction.

a. If the D doesnt have those last three things, you haveto catch the person in the forum and serve him, whichbecame very hard to do.

3. To deal with this, courts expanded the traditional basis.a. Hess v. Palowski

i. PA citizen drives to MA, gets in car wreck;Plaintiff wants to sue PA guy in MA. PA guy getsout of state.

ii. Non-resident motorist act1. By driving into our state, you consent to

jurisdiction for a case arising from yourdriving.

2. Also, you appoint a state officer as youragent in that state for service of process.

3. Brilliant because its completelyconsistent with Pennoyer.

a. Expands the decision in Pennoyerfrom consent become impliedconsent


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b. From service on agent to sayingyoure appointing an agent.

b. International Shoei. Time to restate the principles of personaljurisdictions

ii. To have jurisdiction over the defendant, thedefendant must have such minimum contactswith the forum, so that jurisdiction doesntoffend traditional notions of fair play andsubstantial justice

iii. Three points about Intl Shoe 1. By this time we know that we can serve

process outside of the forum.

2. It appears that there are two parts toInternational Shoe

a. Contact parti. Minimum contacts

b. Fairness parti. Fair play and substantial

justice3. Nowhere does it overrule Pennoyer.

a. In fact, Minimum contacts is thetest if the D is not present whenserved.

b. Implies the traditional basis ofPennoyer exist along side thisnew test.

c. McGee (1957)i. Texas insurance company sued in CA based on

one insurance sale in CA. Jurisdiction upheld. ii. Emphasized that Texas company solicited

business in CA. Reached into CA to sell policy iii. Also emphasized that CA had an interest in

providing justice for its citizen.d. Hanson (1958)

i. Under Intl Shoe the contact must result frompurposeful availment .

1. Purposeful availment: The D must reachout to the forum.

2. Must avail herself of the forum 3. Must direction her activities to the forum

in some way. ii. This wasnt present in Hanson .


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iii. Wealthy PA women entered relationship ortrust with a DE bank and then moved to FL.Kept making transactions with bank until shedied. Do we have jx in FL over the DE bank?

iv. No, bc DE bank did not avail itself to FL. The

only reason it was doing business with FL wasbecause the wealthy women moved there. e. Worldwide Volkswagon (1980)

i. NY family buys car in NY; Going to move to AZ;On the way, they crash in OK; NY family sues inOK on defective design; Ct. rules they have no jxover NY retailer or distributor. Why?

1. B/c the retailer and distributor did notpurposefully avail itself to Oklahoma.

2. Only reason car got there was b/cplaintiff drove it there.

3. Just like in Hanson . ii. People were shocked b/c its foreseeable that

cars drive to other states. 1. Ct. says its not enough for it to be

foreseeable for the product to get there(to OK).

2. Must be foreseeable that the D could getsued in that forum.

3. This dumb because its a circularargument. If I know my product may gothere, then obviously I can get suedthere.

f. Walden i. Ppl in Atl, police officer seizes their money even

though they leave g. Burger King (1985)

i. Contract Case ii. Burger place sues franchises from Michigan in

Miami iii. Court upheld jurisdiction iv. Shoe has two parts:

1. Contact part a. Must have a relevant contact

between d and the forum beforeyou have fairness.

b. BURGER KING HAD CONTACTS 2. Fairness part.

a. D must show that it is so gravelyinconvenient that hes at a severedisadvantage in the litigation.


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b. Court says tough. You better makeit.

c. Relative wealth of the defendantsdoes not matter

d. Tough to prove the fairness

standard. e. Written by Justice Brennan b. Asahi

d. Stream of Commercei. Manufacture component in state A; Sell it to state B; Company in state

B puts part into its machine and sells products into state C, D, E.ii. Does this mean manufacturer has a relevant contact in state C, D, or E?

1. Have they purposefully availed themselves?iii. Split decision

1. Four Justices For Jurisdiction (led by Brennan)a. Brennan

i. It is a contact if you put the valve into thestream and I reasonably anticipate that it willget to state C, D, and E.

ii. Must sense because a person wouldnt m ake somany valves if they werent being used in otherstates.

2. Four Justices Against Jurisdiction (Led by OConnor) a. OConnor

i. Need what Brennan said PLUS an intent to servethe market in state C, D, and E.

1. That you targeted in that state.a. Advertisingb. Customer Service there

c. McIntyre v. NiCastro (4-2-3 split)e. Facts

i. English company manufactures enormous metal cutting machine.ii. Company reaches out specifically to Ohio

iii. Ohio company sells them all throughout the U.S.iv. Guy gets hurt using machine; Supreme Court holds no PJ

f. Why not Personal Jurisdiction?i. 4 Justices (led by Kennedy) adopt OConnor theory

1. They did not target New Jerseya. No purposeful availment and no contact

ii. 2 Justices (Breyer and Alito) Take no sides1. Dont think you have to talk about it cause neith er thing were

met.iii. 3 Justices would have upheld jurisdiction based on Brennan theory

1. If you target the U.S.A and you know the product will get intoother states.


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iv. Leaves us with no law on stream of commerce. But two very goodarguments

1. Brennan 2. OConnor

v. MAKE BOTH ARGUMENTS

d. Burnham (4-4-1) g. NJ man is served with process in CAh. Does CA have general jurisdiction (because claim arose in NJ) over man in NJi. Does presence when served count enough or do you have to have an analysis

under SHOE? j. 4-4 split

i. 4 Justices (led by Scalia)1. Presence when youre served (traditional basis) is good enough

a. Historical pedigree is good enough (Pennoyer)ii. 4 Justices (led by Brennan)

1. Must apply International Shoe regardless of historical pedigree

2. Every time you exercise PJ you have to use International ShoeGeneral Jurisdiction

D can be sued on claim that arose anywhere in the world Historically, courts allowed GJ if D had historic and systematic ties then its ok

o A company like Wal-Mart who has stores in all states A. Goodyear (2011)

General Jurisdiction is ok only where the defendant is AT HOME o Examples they gave:

A human is at home where they are domiciled A corporation is at home where they are incorporated AND where it has

its principle place of businessRECAPi. Constitutional Analysis

o First thing you have to look at: Does a traditional basis apply If YES (guy was served with basis in the forum), you have to talk about

Burnham split of authority 4 Justices say that is enough by itself, No SHOE But 4 other justices said no and that you need to do shoe test.

If there is no traditional basis, You must do the SHOE To do the SHOE test, you must do three things:

o 1. Is there a relevant contact between D and the forum (MUST HAVE THIS)

To get this you must have A. Purposeful Availmento The D must reach out to the forum. (Did she use roads,

try to make money there, etc.?)_ B. Foreseeability

o Must be foreseeable that the D could get sued in theforum

Problems here:


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Stream of Commerceo When you get this, reference both arguments (Brennan

and OConnor) and pick

o 2. Relatedness? Does the Plaintiffs claim rise from the Ds contact? If yes, then it is specific jurisdiction. (Let your professor know

this.)o Access whether its fair

If no, then its only ok if we have general jurisdiction. o General jurisdiction is only ok where the defendant is at

home.o 3. Is Personal Jurisdiction fair?

THIS STEP ONLY APPLIES IN SPECIFIC JURISDICTION. The five fairness factors:

1. Burden on the defendant.o Burger King says this is a tough standard to meet.

2. Forum states interest o McGee: Court said its ok for California to want to have

jurisdiction here to protect to vindicate its peoplesrights

3. Plaintiffs interest o Does have an interest in chosing the forum.

If Plaintiff is injured, it may be tough for them totravel.

4. Efficiencyo Maybe some place is better because all witnesses are

from there. 5. Shared substantive policies of the state

o Kulko : Interest in family harmony Just Go through all of them

ii. State Statutory AnalysisA. If there is a state statute, then do the Constitutional analysis above.B. Every state has statutes that allows PJ based on a traditional basisC. Every state has non-resident motorist act just like in Hess. Specific jurisdictionD. Every state has a long-arm statute.

A lot like non-residents act Vary from state to state.o Must worry when they have a laundry list long arm that list various

things a D can do to subject themselves to Personal Jurisdiction.o Usually are specific jurisdiction

Ex) We have jurisdiction over a non resident when he doesbusiness in a state.

Gray vs. American Radiator (Be Ready for this)


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o Language in the long- arm says: We have jx overa resident who commits a tort in our state

o Hypo: I make widgets in state A and sell them toyou in state B. You get hurt in state B.

o Illinois view: Yes, you committed tort in state B.o New York view: No, you did nothing in state B.

Hypo: Plaintiff lives in Maryland and decides to drive to Virginia. Whilethere he buys a cuckoo clock and takes it home to Maryland. One day, theclock break and injuries the Plaintiff at home in Maryland. P wants to sue theD. Is there in personum jurisdiction over D in Maryland?

o First thing: Does a Maryland statute allow Personal Jurisdiction? Because there are no traditional bases (no domicile, agent, not

served with process) so its going to be a long arm statute. We have jurisdiction over person who commits tort in

Marylando Yes, there is jurisdiction; Illinois view: some

courts would say yes because the injuryoccurred in that state.

o No, no jurisdiction; New York view bc the clockwas made in Virginia.

o Constitutional Analysis (Must do shoe test) 1. Is there a relevant contact between Uncle Joe and

Maryland? Did Uncle Joe purposefully avail himself of Maryland?

o No because the only reason its there is bc theplaintiff took it to Maryland.

o However, on test, if the prof says that headvertises in MD, location of the store, Plaintiffpaid with an out of state check that D normallydoesnt take but only if its Maryland.

Was it foreseeable that Uncle Joe could get sued inMaryland?

o Make any argument. If product is defective thenmaybe it is foreseeable.

2. Relatedness Yes, because it arises from Uncle Joes clock being in

Maryland Means its specific jurisdiction

3. Fairness factors A. Burden on the defendant?

o If he says it is too far, the court will not buy itbecause it is close in proximity

B. States interest?


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o MD may have a state interest in keeping citizenssafe

C. Plaintiffs interest o Might be hard for plaintiff to travel depending

on injury

D. Efficiencyo Could be efficient to litigate in MD b/c that is

where all of the witnesses are, all of the damagehas been done.

E. Shared substantive policy.o Unknown

HIT EVERY FACTOR!!!

B. In Rem Jurisdiction/ Quasi In Rem (QIR)1. The defendant has property in the forum and we are going to use that property as

the basis. (ex: land, watch, bank account)a. In Rem:

i. the lawsuit is about who owns that very property.ii. Ex: Were going to use a car for jurisdiction. The question is who owns

it.b. Quasi In Rem

i. The dispute has nothing to do with ownership of the property. Weknow the defendant owns it. We couldnt get in personum so we aretrying to use defendants property as jurisdictional basis .

ii. Best example comes from Pennoyer v. Neff1. Underlying dispute from Mitchell v. Neff

a. Sued Neff for breach of contract; couldnt get inpersonum so he had jurisdiction over Neffs property inOregon.

2. This would have worked but for quasi in rem, the court mustattach the property at the outset of the case. (Court takespossession of it.) Different today.

3. If happens today:a. FIRST, you must find state statute. Must be something

that allows theses jx. Most of the time called anattachment statute. (ex. We can seize property D ownsor claims to own)

b.

SECOND, is personal jurisdiction Constitutional?i. Test is from Scaffer v. Heitner 1. Seizing from the outset is NOT enough2. Must ALSO show that the D meets INTL

SHOE (min. contacts, traditional notions,etc.)


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II. Notice (Are we in the right court?)o We must notify the defendant. Due process requires that we give the defendant

notice and a chance to be heard.o In regular lawsuit, we mean service of process on the defendant.

A. Service of Processa. Federal Rule 4 (Tells us all about serving process in federal court)

i. Process consists of a (1) summons and (2) copy of the complaint1. Summons: The official court notice that youve been sued. Signed

by the clerk and served with complaint.2. Copy of the complaint

ii. Process can be served by any nonparty who is at least age 18.iii. How do we serve an individual or human? Rule 4 (e)

1. Rule 4 (e)(2) gives us three alternativesa. Personal service

i. Walk up to the guy and hand him the papers. Can beanywhere at all.

b. Substituted servicei. Must show that it is at defendants dwelling or

usual abode.ii. You serve someone of suitable age and discretion

who RESIDES there.1. Babysitter would not work but butler would.

c. Serve the defendants agent.2. Rule 4 (e)(1) allows us to use state law methods for process

a. State law where the federal sits or where the service isactually done.

i. Ex. Service by federal mail.iv. How do you serve process on a business?

1. Rule 4 (h)(1)a. You are going to serve an officer or managing or general

agent. (Going to depend on the facts).2. Rule 4 (e)(1) allows us to use state law methods for process

a. State law where the federal sits or where the service isactually done.

i. Ex. Service by federal mail.v. Waiver of service

1. Rule 4 (d) Allows waiver by mail.a. Mail to the defendant the process and TWO COPIES of a

waiver form.


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b. Send him self addressed stamp envelope.c. If she signs waiver and mails it back within 30 days, she

has waived formal service.i. Does not waive any defenses.

d. If she does not return the waiver form, then we must serve

her but she pays the cost of the service.e. If she does waive the form of service, she will have 60 daysin which to respond.

B. The Constitutional Standarda. Mulane

i. Notice must be reasonable calculated under all the circumstances toapprise the party of the preceding.

b. Notice can be constitutional even if the defendant did not get it.i. If you take all the step it doesnt matter if the defendant does not get

actual notice.c. Duzinberry

i. It can be constitutional even if the defendant did not get actual notice.Only requires reasonably calculated under the circumstances

d. Jones v. Flowersi. If the plaintiff becomes aware that the defendant did not receive it, she

might have to try another means.1. Govt kept sending mail to guys house and it kept getting returned

bc he no longer lived there. Everyone knew he didnt.

III. Subject Matter Jurisdiction (Are we in the right court?)- Different that Personal jurisdiction because SMJ deals with what court we can

sue in a particular court- State court or federal court- PJ is exercised over the parties (PJ-parties; SMJ over the courts.- State courts can typically hear any case.

o Besides bankruptcy, patent infringement- Federal courts can only hear certain types of cases.

o If you dont fall within one of these then you cannot go to federal court. o Only two types that can go to federal court are:

Diversity of citizenship Federal question

A. Diversity of Citizenshipa. Section 1331(a)(1): For a diversity case you must have two things:

i. Case is between two people from two different states1. Complete diversity rule

a. There is no diversity if any plaintiff is a citizen of the samestate as any defendant.

i. Draw vertical line. If any states are on both sides ofthe line, then it doesnt work.

2. Citizenship of a human being


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a. A U.S. citizen is a citizen of the state where domiciled.i. Every human being has one domicile.

1. To change domicile you must:a. Physically move to a new state.b. Form the intent to make that your

new and permanent home.c. Ex. Born in OK, want to move, mustmake the intent.

d. Not college kids.e. Even if you are on your way to a new

state, until its official your stilldomiciled in old state.

3. What is the citizenship of a corporation?a. 1332(c)(1): Corporation is a citizen of state where

incorporated AND its principle place of business (PPB)i. Can be a citizen of two states at one time.

ii. Vertical line test: Can have two sides still.iii. On test the toughest part must be establishing PPBiv. Look at time of filing

1. Hertza. PPB is where the managers director,

control, and coordinate corporateactivities. (NERVE CENTER)

4. What is the citizenship of an unincorporated businesses?(Partnerships, LLCs)

a. No statute on this. All case law and its clear. b. Look to the citizenship of all members of the business.

i. Look at all the board members or partners of thebusiness.

ii. If there are 18 partners from 18 different states,you have 18 different citizenships.

ii. Amount in controversy must exceed $75,000.1. Must EXCEEED $75,000. If $75,000 on the dot, it will not work.2. The plaintiffs claim governs unless it is clear to a legal certainty

that the amount does not exceed $75,000. Must be Clear 3. Aggregation (Occurs only when)

a. Must add multiple claims to get over $75,000 b. Aggregate the claims of one plaintiff versus one

defendant.i. Two claims against the defendant: One claim for

$50,000; One claim for $40,000; $90,000 c. Cannot aggregate if there are multiple parties

i. If the plaintiff sued two defendants: One for $40k,One for $50k, NO

d. Sub-RULE: With a joint claim, use the total value of theclaim


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i. NUMBER OF PARTIES HERE IS IRREVELANTii. Three people beat someone up, over $75,000 in

money, this is ok.

B. Federal Question (FQ) Jurisdiction (Sect. 1331) a. A case that arises under federal law.

i. Figured out through the Well- Pleaded Complaint Rule 1. Louisville Railroads v. Motley

a. As soon as you see federal law, circle it! Youre going tohave to figure out if it is a federal question case

b. Congress passes law saying that railroads cannot give outfree passes. Even though Motleys had already beenpromised free passes for life.

c. They sue the railroad with two claims i. Breach of contract: RR said they would give free

passes but are not. ii. New federal law does not apply to us.

d. It is not federal question case because it did not ariseunder federal law.

e. Well Pleaded Complaint Rule i. You look only at the claim itself and ignore

everything else. ii. Breach of Contract is not federal

iii. New federal law does not apply to us. This is notapplicable either.

f. Easy way to apply the well pleaded complaint rule on thetest?

i. Ask yourself one question, Is the Plaintiffenforcing a federal right? Do they like the law?Are they getting something out of it?

1. Answer in Motley is no because the federallaw does not give them any rights. It isactually taking them away.

C. Supplemental Jurisdiction - Does not get a case into federal court. Only comes up once case is already in

federal court.- For every single claim in federal court, there must be federal subject matter

jurisdiction.- For every single claim we ever see we have to test it for diversity and federal

question.o If it meets one of them, then its ok and it can come into federal court.

- What if there is an additional claim in the case that does not met these twothings?


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o Then we have to try to get it in through supplemental jurisdiction.a. Section 1367 codifies Supplement jurisdiction

i. Gibbs 1. Involved labor disputes in the coal fields in the Appalaians2. P (TN) Fede ral question (FQ) Violation of federal labor laws (Yes, its ok)

Based on state law (1. Does not invoke FQ; 2. Does not invoke diversity bcD is also from TN)3. Gibbs said that supplement jurisdiction would allow this claim IF it shares a

common nucleus of operative fact with claim number one.a. Sub-rule: Always met if the claims arise from the same transaction or

occurrence (T/O)ii. 1367(a) or 1367(b)

1. Does 1367(a) grant jurisdiction?a. Yes, if it meets Gibbs.

2. Does 1367(b) take away that jurisdiction?a. APPLIES ONLY IN DIVERSITY CASES. NEVER APPLIES IN FEDERAL

QUESTION.b. It takes away jx over claims by the plaintiff. Does not deal with the

defendantc. Doesnt deal with ever claim by the plaintiff.

D. REMOVALa. Term of art that means that the defendant is going to have a case transferred

from a STATE TRIAL COURT to a FEDERAL TRIAL COURT. Can only go fromstate to federal. Not only way around.

i. If it does not belong in federal court, then the court REMANDS it. b. Sections 1441, 1446, 1447 (All relevant) (Can be boiled down to four rules)

i. Rule #1: Defendant can remove if the case could have been filed infederal court.

1. EXCEPTION: You CANNOT remove a diversity case if anydefendant is a citizen of the forum. (In-state defendant rule)

2. Hypo: Plaintiff of SC . Sues two Ds. D1 citizen of NY, D2 citizen ofGA. Sue in a GA state court.

a. Can defendants remove? No. Because you have an in-statedefendant.

b. Curveball from professor: Plaintiffs claim arises underfederal law.

i. Yes, you can remove now b/c in-state D rule onlyapplies in diversity cases.

ii. Rule #2: You must remove within thirty days of service of process. iii. Rule #3: All defendants who have been served with process must join.

1. When you remove, you dont have to get permission, you just doit.

iv. Rule #4: The thirty days starts a fresh with each newly serveddefendant.

1. Ex) On June 1, P sues two Ds. On June 1, P has processed servedon D1. In August, D2 gets served. Thirty days gets renewed.


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IV. Venue (Are we in the right court?)- Whats the difference between SMJ and Venue?

o SMJ = told us that we can go to federal court. Venue tells us exactly which federal court we can go to.

94 Federal Districts that you can lay venue in.A. Plaintiffs Choices

a) 1391 (b)(1)(2)i) Theres give the plaintiff two choices in laying venue.

(1) You can lay venue in any district where ALL defendants reside.

(a) Sub-Rule: If all defendants reside in the forum, we may lay venue in adistrict where any of them resides.(i) Ex. One resides in North Texas, one in El Paso. Since they both are

from the state, you can go to either.(ii) What does reside mean?

1. A human being resides in the district where domiciled. Businessresides in all districts where subject to personal jurisdiction forthis case.

(2) You can lay venue in any district where a substantial part of the claim arose.(a) There can be more than one district

B. Transferi) Has to be from one court to another in the same judicial system. (ex. Federal

judicial system)ii) Terminology:

(1) Transferor: Original federal court(2) Transferee: One to which we send it.

iii) Section 1404(a), 1406(a)(1) THE TRANSFEREE MUST BE A PROPER VENUE AND HAVE PJ OVER THE

DEFENDANT. MUST BE TRUE WITHOUT WAIVER.(a) This means if you get sue in the federal district court in MN but you say

its too cold and want to transfer to Hawaii. (b) No venue here or PJ but you say youll waive them. (c) Doesnt matter if you waive them. Can only transfer to that district if it is a

good venue and has PJ.(d) Plaintiff must agree as well which never happens.(e) True under both statutes

(2) 1404(a) Is when the transferor is a proper venue.(a) Factors are:

(i) Convenience1. Witnesses. Evidence?


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2. Atlantic Marinea. If parties have a forum selection clause for a particular district,

we will almost always transfer to that district. (ii) Interest of Justice.

(3) 1406(a) is when the transferor is an improper venue.

(a) You can transfer or dismiss on this basis.

C. Forum Non-Convenience1. Where a court dismisses because there is another court that far more convenient or

the center of gravity.a. We dismiss because transfer is impossible.

i. Impossible because that convenient court is in a different judicialsystem. Ex) a foreign country.

ii. Piper Airlines1. All people involved were from Scotland but plane was

manufactured in Scotland. Court said it had to be dealt with in

Scotland. 2. Footnote 6. All the public and private factors. Same factors in a

1404 transfers. Determines whether the court is the center ofgravity.

b. The other court must be an adequate forum. We cannot dismiss under FNC ifthe plaintiff does not have an adequate forum

i. Adequate forum does not mean that you will recover as much there asyou will here. (You usually wont)

ii. To be adequate it just means that you are going to get a day in court.

V. Erie Doctrine- The problem is going to come up in a diversity case. - Look for: Youre in federal court of diversity and th ere is an issue the court has to

decide. o Question is this: In deciding this issue, must the federal judge apply state

law? o Black letter answer Come from Erie itself.

A. Erie Railroad v. Tompkins1) Federal judge must apply state substantive law in a diversity case.

a) This means that if this issue is an issue of substantive law then the federal judgemust apply state law.

b) Starting point on exam is going to be HANNA V. PLUMER

First thing you must do is: Is there a federal directive on point? Is there some kindof federal law addressing this issue that the judge must address? On exam it willprobably be Federal Rule of Civil Procedure. (F.R.C.P)

If yes, then you apply the federal law as long as its valid. This is not an Erieproblem at all. Based on supremacy clause of the Constitution.


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Hanna Prong of the analysis: Is that issue covered by a federal directive. Is thatfederal directive on point? Then it wins.

How do you know if a federal rule is valid? FRCP is valid if it meets the Rules Enabling Act. Section 2072. - Most judges seem to say that a FRCP will be valid under the REA if it is

arguably procedural. THEY ALL ARE. If no federal directive on point, then it is an Erie problem.- Erie said you have to follow state law if it is a matter of substantive law.- This came from the Rules of Decision Act. Sect. 1652 and the 10 th Amendment.

Erie Prong of the Analysis1) Outcome Determination

a) Guarantee Trust (1945) i) Under state law the state statute of limitations would bar the case. A federal

judge is in charge of this case. There is no federal directive. No federal statute oflimitation. Can she ignore the state law? (1) Supreme Court says No she cannot ignore the state law. (2) Must apply the state statute of limitations. It is substantive because it is

outcome determinative. Why? (a) If you apply the state law, the case is dismissed today. If you ignore it,

then the case continues, which is a different outcome. We dont wantdifferent outcomes.

2) Balance the Federal and State Interestsa) Byrd v. Blue Ridge (1958)

i) State law said that a Particular issue had to be decided by the judge instead of ajury. Federal diversity case and the federal judge wants to ignore it and give it toa jury. No fed directive. Can the judge ignore state law on this issue?(1) Court says yes because ordinarily we follow state law in diversity case but we

do not have to if there is a federal systemic interest in doing it different.(2) The Court weighed the interests of state and federal courts.

(a) States had no interest because the state did not know why they had therule.

(b) Federal courts have an interest in running their own allocation ofauthority.

ii) Problem with Byrd is they never go back to it and never tell you how to weighthings.

3) Twin Aims of Eriea) #1 Avoid Forum Shoppingb) #2 Avoid the Unfair Administration of the Law.c) How to apply them:

i) At the outset of the case, ask yourself this: If the federal judge ignores this statelaw, will it cause people to flock to federal court? If so, then its a bad idea and wedont want to do it. (1) Dont want to encourage forum shopping bc it is unfair to in -state people.

d) Gasperini (very confusing)


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Hypos: We have a case based on state law brought in federal court, diversity case broughtas a class action. Federal Rule 23 would allow it as a class action. State law requires thatyou do them individually and not in a class action. Do you have to follow that state law?

1. Is there a federal directive on point?

a. Yes, Federal Rule 23 is on point and governs this issue. Therefore, it applies aslong as its valid and it is valid. We dont have to talk about anything else.(Hannah Case)

Hypo 2: Were in state x, legislature is worried about health care costs, so they pass a statutethat says, If you file a medical malpractice case, it must go to arbitration before you can goto the jury. Plaintiffs hate this because arbitrations are lawyers and doctors who wont cry.Citizen of State Y goes to a doctor in state X on vacation and the doctor commitsmalpractice. Does the federal judge have to apply the medical malpractice arbitrationprocedure?

1. Is there a federal directive on point?a. No

b. Must go to Erie Prong.2. Is it outcome determinative?

a. Who knows. Sense that you will recover less in arbitration but it is not know.3. Balance of Interest

a. Here state has serious interest trying to reduce medical malpractices costs.b. Federal does too but

4. Twin Aimsa. If the federal judge ignores the state law, will it cause people to flock to federal

court?i. Yes, every plaintiff that can do this, will do this.

b. Under twin aims of Erie, plainly apply the state law.

VI.PleadingsA. The Complaint

a. Filed by the plaintiff. Commences court.b. Under rule 8(a): Three things must be included in a complaint:

i. #1 Statement of Subject Matter Jurisdiction1. Federal courts can only hear certain types of cases so we have to

make sure that we belong there.ii. #2 Short and plain statement of the claim

1. Historically, federal rules used notice pleading. Now because ofTwoby and Ickbar things have changed.

a. Twoby/Ickball Rules i. The court ignores conclusions of law and focuses on

allegations of fact. (Ignores reckless, just facts) ii. The plaintiffs facts must state a plausible claim.

iii. The Judge uses her experience and common sense toaccess plausibility.

b. Flag: Some things, like FRAUD, must be pleaded in moredetail.


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i. Until rule 9(b)(circumstances of fraud), you must allegewith particularity. Give chapter and verse.

iii. #3 Demand for relief1. Tell the court what you want (damages, relief)

B. Defendants Response (Federal Rule 12) a. When you get sued, you must respond within 21 days after service of process

i. Under rule 12, you can respond by1. Motion (not a pleading)

a. A request for a court order.i. Rule 12(e): Motion for more definite statement

ii. Rule 12(f): Motion to strike. iii. Rule 12 (b)(x) Defenses to dismiss

1. Subjec t Matter Jurisdiction (doesnt belong infederal court at all)

2. Personal Jurisdiction 3. Venue 4. Improper Process

a. Problem with one of the documents5. Improper Service of Process6. Failure to state a claim7. Failure to join an indispensable party (under rule

19)iv. THESE DEFENSES CAN BE PUT IN A MOTION OR IN YOUR

ANSWER.1. Must know waiver rules if we goof it up. Rules

12(g); 12(h) impose strict waiver rulesv. Waiver Rules

1. Rule 12(b)(2,3,4,5)a. They must be done in your first rule 12

response.2. Rule 12(b)(6,7)

a. Can be raised anytime for the first time at anypoint throughout trial; not on appeal.

3. Rule 12(b)(1)a. Can be raised anytime in the case. Appeal

included.b. Hypo: Plaintiff sues and Defendant moves to dismiss for improper service of

notice. 12(b)(5) Court denies the motion.i. Defendant files an answer where he tries to say theres no personal

jurisdiction.ii. The Defense is waived because you have to put it in your first response.


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iii. On exam, when you see first response, just circle it. Because if you didnot put 12(2,3,4,5) they are gone.

a. A lot of time its like they say something where this wouldapply but answeree forgets to add this.

2. Answera. Two things must be done in our Answer:

i. Rule 8(b) 1. We must respond to the complaint.

a. Admit some stuffb. Deny some stuffc. We do not know.

d. FAILURE TO DENY IS AN ADMISSION,EXCEPT REGARDING DAMAGES

2. We must raise affirmative defenses. Rule (8)(c)(1) a. Injects a new fact.

i. If right, the defendant wins. b. Failure to plead them can result in waiver.

VII. Joinder- Define the scope of our case. (How many people, how many claims)- Always, always think about subject matter jurisdiction. (Every claim in federal

court must have subject matter jurisdiction) A. Claim Joinder by the Plaintiff (Rule 18)

a. Rule 18(a)i. Plaintiff may join any claim she has against the defendant.

ii. Next step, You have assess whether SMJ would work with all of them.Must look at federal question and diversity.

B. Claim Joinder by the Defendanta. Here, defendant is going to sue someone. Assert a claim.

i. Counter-claim (Rule 13(a)(b))1. Claim against an opposing party that has already sued you.

a. #1 Compulsory Counter-Claim (Rule 12(a)(1))i. Arises from the same transaction or occurrence

as the plaintiffs claim. ii. Unless you have already sued on this, you must

assert this in the present case.iii. THIS IS THE ONLY COMPULSORY CLAIM IN THE

WORLD THAT IF YOU DO NOT USE IT, YOU LOSEIT AND CAN NEVER USE THIS CLAIM AGAIN.

iv. Ex) A&B driving around, A sues B, case islitigated. B tries to sue after, case dismissed.


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b. #2 Permissive Counter-Claim (Rule 13 (b))i. This does not arise from the same transaction or

occurrence as the plaintiffs claim. Differenttransaction all together

c. Hypo: Plaintiff (NY) Defendant (FL)

-$100,000 claim -Has compulsory CC $90k- Next, does this CC belong in federal court? Yes,because it involves diversity. NY v. FL, and $75k

d. Hypo: Plaintiff (NY) | Defendant (FL)-$100,000 claim -Has compulsory CC $45k- First, you say its compulsory - Then, you assess SMJ.

- One, CC does not invoke federal question- Secondly, CC does not invoke diversity

- Does not exceed $75,000

- Then you would try supplemental jurisdiction- Does 1367(a) grant it?

- Yes if it meets Gibbs (commonnucleus of operative fact)- Complusory CC always meet1367 (a) b/c they always do.

- Does 1367 (b) take it away?- No, bc that only takes away sup. Jon claims by plaintiff. Here, by D.

ii. Cross-Claim (Rule 13(g)) (XC)1. Against a co-party and it must arise from the same transaction

or occurrence as the underlying case.2. Hypo: 3 cars driving around and they crash.

P (NV) D1 (NY) D2(NY)1. Should file Comp. CC and why?

2. Should file Cross-claim?- Theres no diversity on XC

Then you would try supplemental jx- Does 1367(a) grant it?

- Yes, if it meets Gibbs (commonnucleus of operative fact)- Cross claims always meet 1367(a) b/c they always arise fromsame event..

- Does 1367 (b) take it away?- No, bc that only takes away sup. Jon claims by plaintiff. Here, by D.

C. Proper Parties (Rule 20(a))a. Who may be joined in a case?


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i. A tool forb. Can people sue as co- plaintiffs (20(a)(1)

i. Yes, if the claim (1) arises from the same occurrence and (2) theyraise at least one common question

c. Co-defendants? (20(a)(2))

i. Yes, exactly the same test .d. SMJ?i. Can it get into federal court?

ii. Does it have federal question or diversity?D. Indispensible Parties (Rule 19): Who should be in the case ?

a. Is the Absentee NECESSARY ? (Rule says required.)1. Yes, IF we meet any of three tests. (Rule 19(a)(1))

a. Test #1: Without the absentee the court cannot accordcomplete relief (Rule 19(a)(1)(a))

b. Test # 2: The absentees interest may be harmed if sheis not joined. (Rule 19(a)(1)(b)(1))

c. Test #3 The absentees interest subjects the defendantto multiple or inconsistent obligations(Rule 19(a)(1)(b)(2))

2. Hypo: You own 1,000 shares of stock. You come in and say thatyou and I agreed to own the stock together.

a. I sue the corporation and I want an order cancellingyour stock and reissuing it in our names. Are younecessary in the party?

i. Under test #1, yes because if we dont bring youin, we cannot accord complete relief. Youll sueright after the case is settled.

ii. Under test #2, yes because if I win the case, youlose your stock.

iii. Under test #3, yes because I win,b. You are necessary, now, is joinder of the absentee feasible?

i. It is feasible if there is personal jurisdiction over youii. If bringing you in will not goof up diversity.

c. Joinder of A is not feasible even though theyre necessary.i. Either we proceed without A OR

ii. Dismiss the whole case.iii. Make decision by Rule (19)(b) Factors

1. Factor #4: Insures that we do not dismiss this case unless thereis some other court where everyone can be put in one case.

2. If you go through the factors and decide to dismiss, Absenteebecomes labeled as INDISPENSIBLE. Rule 12(b)(7)

E. Impleder (Rule 14)a. Hint for keeping things straight:

i. If it begins with a C between existing parties1. Counter-claim2. Cross-claim


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ii. If it begins with an I Joining somebody new (TBD)1. Impleder

b. The defendant can only bring in somebody new if the new party may beliable to D for the plaintiffs claim against D.

i. D get sued and says I shouldnt have to pay the whole thing so he

brings in new party.1. Almost always for indemnity or contribution.

TPD

UnderRule14(a)(3)P

Impleader claimTo bring in TPD

P DThen go through SMJ

- Diversity?- Federal question?- SMJ?

F. Intervention Rule 24a. Absentee is asserting themselves into the case. (Starts with I bringing

someone new in) b. Two kinds of intervention

i. (***) Intervention of Right 1. Great exam question 2. Test is: You have a right to intervene if your interest may be

harmed if you are not joined. a. Why is this a great professor trick?

i. Because it is exactly the same as test 2. Rule 19,and intervention rule do the same thing.

1. Difference is 19 is raised by D; 24 israised by absentee herself.

ii. Permissive Intervention (Rule 24(b)(2)) 1. Absentee must show that their claim has at least one common

question with claim at hand. (At judges discretion) 2. Remember that when you intervene, you come to assert a

claim or to defend a claim, but either way there is a claim andthat needs to be tested for SUBJECT MATTER JURISDICTION.

G. Class Action (Rule 23) a. A representative sues on behalf of a group.


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b. Seven rules about the class action: i. #1 Prerequistes for a class action (Rule 23(a))(Must meet all 4)

1. Numberocity a. There are so many folks that joinder will not work.

i. No magic number

2. Commonality a. There must be something in common to all thesemembers (Rule 23(a)(2))

b. Wal-Mart i. We dont focus on common questions but

common answers ii. Has to be some issue and if we litigate this issue

for everyone, it will provide answers foreveryone.

iii. In Wal-Mart , they decided everyones casedifferently. Thousands of different decisions

3. Representatives claim must be typical of the class members a. We want the rep to feel the same pain as all the class

members did 4. Representative will fairly and adequately protect the interest

of the class. a. We are going to bind the class members so the rep has

to do a good job in the best interest of the class. ii. #2 Types of Class (Rule 23(b)) :Give you a choice. (Must meet one)

1. (b)(1) Classes: 2. (b)(2) Classes: 3. (b)(3) Classes: Gives your professor more questions than the

others. a. We are usually suing for money. Must show:

i. Common questions predominate ii. Class is the superior way to resolve the dispute

1. Best way to handle it. One case v. 80 cases iii. #3 Motion to Certify

1. A class is not a class action until the court certifies it.a. Must make a motion b. Then Court will look at Rule 23 (a) (preq); 23(b) (types)

i. If court certifies the class, must appoint classcounsel Rule 23(g) weird that it picks the lawyer

iv. #4 Notice of Pendancy1. (Why (B)(3) is most likable) In the (B)(3) class, the court must

give individual notice to all members reasonably identifiable.a. Contents of the Notice (Rule 23(c)(2)(b))

i. Most Important: They can opt out and they arebound if they do not.

ii. The representative pays for the notice.


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iii. THIS NOTICE IS NOT REQUIRED IN A (B)(1) OR(B)(2) CLASS.

iv. Most likely because its the only one where youhave to give them notice

v. #5 Who is Bound By A Class Judgment?

1. All members except those who opted out of a (B)(3) a. Can only opt out of (B)(3); not (b)(1) or (b)(2) vi. #6 Settlement or Dismissal of a Certified Class Must be Approved

by the Court (Rule 23(e))

vii. #7 Subject Matter Jurisdiction1. You have a class action in federal court, how do you get it

there? a. Might invoke federal question

2. If we are asserting a federal claim, there might be a federalquestion.

3. What do we do about a diversity class action? How do we get aclass action into federal court under diversity?

a. First, as to citizenship, you look only at therepresentative; Must be diverse from all defendants

b. The reps claim must exceed $75,000 i. Exxon Mobile v. Ala Pata

VIII.Discovery- Applies to documents, things (widget that blew up), electronically stored information(ESI).

A. Required Disclosures (Rule 26 (a)) a. Parties must produce information without request from the other side.

i. Must cough things up enough though no body asks you to.ii. Initial required disclosures: Rule 26(a)(1) is the most important

bylaw.1. You must identify people, and describe things including

documents, and ESP with discoverable info that you may use tosupport you case at trial and in general.

a. Ex) If you have something on your hard-drive thatsupports your case, you gotta cough it up.

2. What?3. Defendant must disclose insurance that may cover this.

iii. Also, Rule 26 (a)(2,3) but they come up later in the case.B. Discovery Tools (Five tools to get info)

a. Deposition (Rule 30, 31)i. Oral Deposition/Questions (30) (More likely)

1. Where the questions are asked orally.2.

ii. Written Questions (31)


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iii. Either way, the response is oral. The deponent gives oral testimony asthey are asked. This is live.

iv. You can depose parties and non-parties1. Kicker: You should serve a non-party with a subpoena2. Party you dont have to.

b. Interrogatoriesi. Written questions answered in writing under oath.1. Very helpful with background information

ii. Parties have 30 days to answeriii. CANNOT BE SENT TO NON-PARTIES

c. Request to Produce (Rule 34)i. Written request for access to stuff. (ex. Docs, widgets, etc.)

ii. Appears to only apply to parties but you can use to get info from non-parties if you have a subpoena (Rule 34 (c))

d. The Medical Exami. You must get a court order.

ii. You have to show that medical condition is in controversy.iii. Only to exam a party or somebody in a partys custody or control.

1. Does not include employees unless you name the party.e. Request to Admit (Rule 36)

i. Basically, you force them to admit or deny any discoverable matter.ii. If they fail to deny, they have admitted.

iii. Only for parties; Never non-partiesC. Scope of Discovery (Rule 26)

a. Standard (Rule 26 (b)(1) i. We can discovery anything relevant to a claim or defense

1. Includes anything reasonably calculated to lead to admissibleevidence. (Ex. Hearsay; Not admissible in trial but you candiscover it, will lead you to admissible evidence)

b. Work Product (Rule 26 (b)(3)) Trial Prep Materials i. Material prepared in anticipation of litigation

1. Matters because the starting point is that work product is notdiscoverable.

2. Do this to avoid a free-rider problem a. Hypo: Rich operates charter boat service. I charter it for

three hours tour and boat sinks. I sues. Knowing thisRich hires PI, after looking at facts, he gets a conclusion.

b. I asks you to produce all documents. Is this docincluded?

i. No, not attorney client privilegeii. Not all work product is created equal

1. Can override the work product protection for some stuff? a. Substantial Need b. Info is not available.


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2. Rich says he doesnt want to give up memo but in the memothere is a witness statement by Gilligan, who is now maroonedon an island, meaning you cant take his statement.

a. You need the information so its ok. iii. Some work product is absolute

1. Mental impressions, conclusions, opinions, and theories areabsolute work problem.2. If memo had Gilligans deposition then you can get that but

everything else no.iv. It can be generated by a party or any representative of a party.

1. Does not have to be by a lawyer. 2. Dont call it Attorney Work Product .

IX.Pre-trial Adjudication A. Motion to dismiss for failure to state a claim (Rule 12 (b)(6))

a. The court does not look at evidence b. The court only looks at the complaint

i. Ignores conclusions of law and looks only at allegations of fact; AND ii. Then must decide if these facts state a plausible claim

1. Judge uses own common sense and experience.2. Basically, if law does not recognize this, then there is not

reason to be in court. B. Summary Judgment (Rule 56) (Is there a dispute on a material fact?)

a. Here the court can look at evidence.i. By evidence we mean, sworn statements under oath, given to the

court by the parties. b. Look at the evidence and then apply the (Rule 56 (a)) standard

i. Moving party must show:1. No genuine dispute on a material fact. (Big one)

a. Once you show there is no dispute of fact, then it mustbe a dispute of law. Court will rule on this.

2. She is entitled to judgment as a matter of law. a. Wont be a problem

c. Difference from Rule 12 (b)(6) i. Here, we have stated a claim. If she can prove what she alleged she

will win. ii. With summary judgment, it is do we need a trial.

1. Only reason we ever hold a trial, is to decide a dispute of fact. 2. If there is no dispute of fact, then there is no trial, judge rules

as a matter of law. (Evidence comes from the parties, Must beunder-oath like declarations, depositions, answer tointerrogatives.)

a. However, pleadings are not unless Prof says, they areverified pleadings (which rarely exist)


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iii. Whats going to happen in summary judgment? 1. We going to have evidence in written form and the judge puts

it in a pile and reads all of it.2. Based on this evidence is, is there a dispute on a material fact?

a. If no, then we dont need trial.

3. It is all discretionary. iv. In the mid 1980s, three cases got decided on same day came out 1. Mashuchita, Andeson, CeloTex

a. Pretty indecipherableb. All said lower courts should loosen up and start

granting summary judgment. c. Courts are nervous about it because its the end of the

world. Means they are not going to trial v. Hypo: P is a pedestrian walking across street and gets hit by D; P sues

D; P In complaint he says, I was in cross -walk, I had the green light,and D ran the red light.

1. D files an answer, denying it all and files a motion for summaryjudgment.

2. All ten witnes ses say that its all the Plaintiffs fault.a. Situation #1: P relies on his complaint. Summary

Judgment is probably granted. b. Situation #2: P proffers an affidavit from someone who

saw everything but is a druggie and alcohol.i. Affidavit says its all Ds fa ult. Do you grant

summary judgment? 1. No, because now theres a dispute on

material fact and you must go to trial tolet the jury decide.

c. Scott v. Harris i. Video tape that showed what happened. IF

VIDEO SHOWS IT CLEARLY, YOU CAN GRANTSUMMARY JUDGMENT!

X.Trial A.

XI. AppealsXII.Claim and Issue Preclusion

Documents

Barbri Notes Personal Jurisdiction