Talbot - DRAFTING COMPLAINT Wednesday, April 30, 2008 11:31 PM

United States District Court ____________ ----------------------------------------------------------------------------------------------- Plaintiff Name (Plaintiff) v. Defendant Name (Defendant) Docket Number Complaint ------------------------------------------------------------------------------------------ Parties and Jurisdiction

1. The plaintiff, _______, is a ___________, residing __________ 2. The defendant, ________, is a __________, residing/incorporated in _____________

(with its principal place of business _______________ 3. At all relevant times, the defendant __________

If not sure about something plead "on information and belief" 4. Explain diversity or FQ SMJ 5. SMJ or FQ is proper in this court under ________ 6. Venue is proper under _______ 7. Therefore the jurisdiction of this court over this claim is proper

Facts

8. Blah 9. Blah 10. Blah

First Claim for Relief Negligence

11. Plaintiff repeats and realleges paragraphs 1-X Demand for Relief WHEREFORE, the plaintiff demands judgment in the amount of his/her actual damages plus interest and costs, and such other relief as the court finds just and equitable Signature Attorney information

Talbot - SERVICE Wednesday, April 30, 2008 11:32 PM

INTRO

In legal actions, a fundamental right of defendants is to be notified when they are a party to a lawsuit. To not notify defendants of pending legal action would violate their right to due process. Service can also be made on witnesses and other key individuals that are needed for trial. Specifically, service both notifies the defendant that he has been sued and informs him that the court intends to proceed to adjudicate his rights.

1. WHAT IS INCLUDED IN PROCESS 1. Summons - formal notice from the court, tells defendant she has been sued,

how long defendant has to respond, and if she doesn't respond she risks being put in default 4(a)

The summons is signed by the clerk and bears the seal of the court 4(a) 2. copy of complaint 4(c)(1)

2. SERVICE CAN BE PERFECTED BY ANY NON-PARTY WHO IS AT LEAST 18 YEARS OLD -

4(c)(2)

3. PROCESS MUST BE SERVED WITHIN 120 DAYS OF THE FILING OF THE SUIT - 4(m) Will then be dismissed without prejudice unless good cause can be shown for

the delay

4. HOW TO SERVE INDIVIDUALS RULE 4(e)(2)

Personal service Substituted Service: ok if it is at defendants dwelling house or usual

abode and the person served must be of suitable age and discretion who resides therein

Dwelling House or Usual Place of Abode National Dev. Co. v. Triad Holding Corp. (1991)

Apartment where service was made was one of 12 places around the world def stayed at.

Service at that apartment was the best and most reasonable way to serve process on def

3. Serve the defendant's agent RULE 4(e)(1)

4. Under the provisions governing service of process on individuals in the courts of the state where the federal court sits

LA 3204 allows notice by certified mail with receipt 5. Service pursuant to the law of the state in which service is effected,

5. HOW TO SERVE A CORPORATION

RULE 4(h) 1. Delivery of a copy of the summons and complaint to an officer,

managing or general agent of the defendant, or to an agent authorized to receive service

Must be hand delivered Find someone with enough responsibility that we can expect

him to transmit important papers RULE 4(e)(1)

2. Under the provisions governing service of process on individuals in the courts of the state where the federal court sits

LA 3204 allows notice by certified mail with receipt 3. Service pursuant to the law of the state in which service is effected,

If served outside of the united states apply (4)(h)(2)

6. WAIVER OF SERVICE

The plaintiff can solicit a waiver of all these technicalities by sending (by first class mail or other reliable means) the defendant a complaint, two copies of a notice of the action and a written request that the defendant waive formal service of the summons and complaint upon him. The written request must inform the defendant of the consequences of not waiving process and set the date on which the request was sent

Defendant has 30 days to respond Be wary of the 120 period in 4(m) is still running

Defendants have an incentive to waive formal service. 1. 4(d)(2) creates a duty to avoid "unnecessary costs of serving the

summons" 2. 4(d)(2) court must impose the costs of service on a defendant who

refuses to waive service without good cause 3. 4(d)(3) give defendants 60 days rather than 30 days to respond to the

complaint if they waive formal service.

7. WHERE DO WE SERVE PROCESS RULE 4(k)(1)(A)

Federal court can serve process throughout the state in which that court sits

Court can serve process outside of the state only if the state court could do so

RULE 4(k)(1)(B) EXCEPTION We can serve process out of state so long as it is when 100 miles of the

federal court house, however only applies parties joined under RULE 14, 19 RULE 4(k)(1)(C) and (D)

Federal statutes may allow for more service of process outside of the state

8. WAS SERVICE CONSTITUTIONAL Notice must be reasonably calculated under all the circumstances to apprise

the defendant of the suit Mullane

ASK: Was there a better way? CHALLENGING THE ADEQUACY OF SERVICE

12(b)(5), a motion to dismiss for insufficiency of service of process The fact that service was actually made does not validate the method of

service If you had made a motion to dismiss previously, then this defense is

waived 12(h)(1)(A) SUBSEQUENT PAPERS

5(b) subsequent papers may be served by person delivery, or regular mail, the parties should be in contact and should watch the docket

FEDERAL LONG ARM STATUTE 4(k)

When can a federal court assert personal jurisdiction over a defendant served under Rule 4

1. Has the relevant legislature authorized the jurisdiction? 4(k) provides that service "is effective to establish jurisdiction

over the defendant in 4 circumstances 1. The federal court is authorized to assert jurisdiction of

the courts of the state in which the federal court sits could assert jurisdiction over the defendant 4(k)(1)(A)

2. Jurisdiction over impleaded parties served within 100 miles of the courthouse 4(k)(1)(B)

3. Jurisdiction over parties subject to interpleader jurisdiction 4(k)(1)(C)

4. In federal question cases, over parties who have sufficient contacts with the United States as a whole to constitutionally support jurisdiction, but whose contacts would not suffice to support personal jurisdiction in the courts of any state 4(k)(2)

2. Would it be constitutional for the court to exercise jurisdiction in the circumstances of the particular case?

If served under state law look to 14th Amendment If served under strictly RULE 4 then look to the 5th Amendment

Talbot - REMOVAL Thursday, May 01, 2008 5:00 PM

INTRO

The federal removal statutes allow the defendant, after the plaintiff has chosen a state court, to "second-guess" that choice by removing some types of cases from the state court to federal court

1. REMOVAL ONLY GOES FROM STATE COURT TO FEDERAL COURT 2. ALL DEFENDANTS MUST AGREE TO REMOVE 3. ONLY DEFENDANTS CAN REMOVE 4. YOU REMOVE TO THE DISTRICT THAT EMBRACES THE STATE COURT 1441(A) 5. WE REMOVE WITHIN 30 DAYS OF THAT CASE BECOMING REMOVABLE

No removal of a diversity case if any defendant is a citizen of the forum You cannot remove a diversity case more than 1 year after it was filed

in state court 1446(b)

1446(a) notice of removal must be filed in the federal district court and division within which the action is pending

1446(d) a copy of the notice must be filed in state court 1446(a) copies of all pleadings, process, and orders served on defendants must be

filed with notice 1446(a) all parties must be notified promptly after filing notice 1446(b) notice must be filed within 30 days after service

81(c) if the answer if filed before removal, the answer stands as the answer in federal

court 81(c) answer within 20 days of complaint or within 5 days after notice for removal is

filed (whichever is longer 6(b) move for extension of time

6(b)(1) before expiration = cause shown 6(b)(2) excusable neglect

Courts have held that all defendants must agree to the removal (no rule) 1441 defendants can remove from state to federal court within the same state 1441(b) Def cannot remove on basis of jurisdiction if sued within own state

Exception: federal question 1441(a) for removal, the case must have been able to be filed in fed ct initially

Talbot - VENUE Thursday, May 01, 2008 5:00 PM

INTRO Venue rules (coupled with personal jurisdiction and SMJ) are meant to further restrict the places where the plaintiff may choose to bring a suit, to assure that suits are tried

in a place that bears some sensible relationship to the claims asserted or to the parties to the action.

IPJ

Tradition Basis of Personal Jurisdiction (still valid Burnham) i. Physical presence

ii. Appearance iii. Domicile/Citizenship iv. Consent

Specific Personal Jurisdiction Claim arises out of the defendant's contact with the forum state and

the long arm statute permits personal jurisdiction (LA 3201 or Rule 4(k) - look under service for analysis)

General Personal Jurisdiction The cause of action is unrelated to the defendant's activities within the

forum, but defendant's continuous and systematic contacts with the state allow any action against defendant to be filed in the forum state

SMJ

Article III Section II of the United States Constitution sets the outer boundaries for Federal Subject Matter Jurisdiction. It permits jurisdiction in Federal Courts for cases arising under Constitution, Federal Statutes and Treaties. It also allows for suits between parties of diverse citizenship. Because Article III Section II allows for broad interpretation, Congress enacted 1331 and 1332 to narrow the parameters. The applicable rule for venue depends on the type of subject matter jurisdiction available.

Federal Diversity SMJ Basis under 1332 go to 1391(a) Federal Question SMJ: Basis under 1331 go to 1391(b)

1. BASIC VENUE RULES

No constitutional aspect to venue In removal cases venue is in the district embracing the state court Local actions must be brought in the district where the land lies

Courts treat certain actions relating to interests in land as "local actions," which must be prosecuted in the county or district in which the land is located. (ownership, possession, or injury to land)

3. Transitory Case (not local) RULES THAT FOLLOW

2. FEDERAL VENUE STATUTE 1391 1391(a) - governs venue in diversity cases, authorizes venue in"

1. A judicial district where any defendant resides, if all defendants reside in the same state

2. A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or

3. A judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may be brought otherwise. (ONLY USED IF THERE IS NO DISTRICT IN THE US THAT FALLS UNDER 1 OR 2)

1391(b) - governs venue in cases not based solely on diversity of citizenship, authorizes venue in: 1. A judicial district where any defendant resides, if all defendants reside

in the same state 2. A judicial district in which a substantial part of the events or omissions

giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or

3. A judicial district in which any defendant may be found, if there is no district in which the action may be brought otherwise. (ONLY USED IF THERE IS NO DISTRICT IN THE US THAT FALLS UNDER 1 OR 2)

What does "found" mean? Service of process? Subject to personal jurisdiction?

3. VENUE INVOLVING COPRORATIONS 1391(c) - defines corporate "Residence" for purposes of applying 1391(a)(1)

and (b)(1) applies only to corporate defendants (NOT CORPORATE PLAINTIFFS) Corporate residence is any district in which the corporation is subject to

personal jurisdiction. For purposes of selecting a district, consider each district its own state.

4. WAIVER OF VENUE

Venue is a personal privilege that may be waived. The defendant waives her objection to venue by failing to raise it when she

responds to the plaintiff's complaint. 12(h)(1) Forum selection clauses in contracts are valid

5. CHALLENGING VENUE

12(b)(3) is a motion to challenge improper venue

6. TRANSFER OF VENUE The transferee court must be a proper venue and it must have personal

jurisdiction over the defendant without waiver 1404 Transfer

The transferor court is a proper venue but we transfer to another venue for:

Convenience of the parties Convenience of the witnesses Interest of justice

Ferens v. John Deere Company (1990) Where the plaintiff requests that 1404 transfer, the transferee

court should apply the law that the transferor court would have applied.

1406 Transfer The transferor court is an improper venue The court may transfer or dismiss the case

7. FORUM NON CONVENIENS

Forum Non Conveniens doctrine is based on premise similar to 1404(a) that sometimes cases are properly filed with respect to SMJ, IPJ, and venue, but still logically belong somewhere else.

Case should be brought in another sovereign the court may dismiss a case where the interest of justice indicate that it

should be litigated elsewhere. 1. Interest and convenience of the parties access to proof 2. Public interest at stake 3. Efficiency and expense

Piper Aircraft v. Reyno (1981) i. The possibility of an unfavorable change in law should not, by itself, bar

dismissal. ii. A plaintiff's choice is given great deference, unless the defendant is

foreign

Talbot - MOTIONS Wednesday, April 30, 2008 11:31 PM

INTRO The defendant may answer a complaint with a pre-answer motion as an alternative to answering the complaint and the defendant need not answer the complaint until the motion is decided BASICS

7(b) must be in writing, state grounds for and relief sought and signed via Rule 11 43(a) affidavit testimony can be presented with a motion RULE 12(a)(4)(A) if a court denies a motion or postpones its disposition, the responsive

pleading shall be served within 10 days of the courts action

RULE 12(a)(4)(B) if the court grants a motion for a more definite statement RULE 12(e) the responsive pleading shall be served within 10 days

RULE 12(g) only one motion to dismiss is allowed RULE 12(g) and (h) if not raised before the answer or in the answer the following

defenses are waived: i. Personal jurisdiction

ii. Venue iii. The form of the process iv. The method of service of process

THE MOTIONS (12(B)(2-5) MUST BE PUT IN THE FIRST RULE 12 RESPONSE(ANSWER, MOTION, ETC)!!!)

RULE 12(b)(1) motion to dismiss for lack of SMJ Raised at anytime, cannot be waived

RULE 12(b)(2) motion to dismiss for lack of personal jurisdiction over the defendant RULE 12(b)(3) motion to dismiss because the court is not a proper venue RULE 12(b)(4) motion to dismiss for insufficiency of process (something wrong with the

process itself not the method) RULE 12(b)(5) defense of insufficiency of service of process

Attacks the manner in which the complaint was served Court will order proper service of the complaint

RULE 12(b)(7) defense of failure to join an indispensable party Asserts a defect in the scope of the suit as to the plaintiff has framed it Can be brought until trial

RULE 12(b)(6) motion to dismiss for failure to state a claim on which relief can be granted

1. It tests the legal sufficiency of the plaintiff's claim, questioning whether the law accords a remedy on the facts alleged.

2. It tests the factual, or formal, sufficiency of the complaint, questioning whether the plaintiff has set forth her claim in appropriate detail.

Can be brought until trial Rule 12(c): Motion for judgment on the pleadings after all pleadings are filed treated

as a motion for summary judgment (Rule 56). RULE 12(e) seeks a more definitive statement

Used if the complaint is vague or ambiguous If motion is granted, opposing party has 10 days to comply, or the court may

strike the pleading RULE 12(f) move to strike

The court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter

Motion can be made before responding to the pleading, or if response is not allowed, within 20 days

Talbot - PLEADINGS Wednesday, April 30, 2008 11:36 PM

INTRO Pleadings are the papers filed by parties at the beginning of an action, in which they set forth their positions as to the facts at issue. Pleadings are not evidence; they are not even sworn testimony by the parties or their attorneys

1. RULE 11 1. Certification

RULE 11(a) requires an attorney to sign each pleading and state his address

RULE 11(b) an attorney's signature certifies to the court that the attorney believes, after reasonable inquiry, that the factual allegations in the complaint "have evidentiary support" or "are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

RULE 11(b)(1) a signing attorney certifies that the pleading or motion is not filed for an improper purpose.

RULE 11(b)(2) attorney's signature certifies that the legal positions taken in the pleading are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of a new law.

2. The certification is effected every time that document is presented to the courta continuing certification

3. Sanction are discretionary 4. A motion for violation is served but is not filed

Rule 11(c) Motion for sanctions: Counsel has a 21-day safe harbor from the date of the motion

for rule 11 sanctions to correct the deficient pleading. The judge must give an order to show cause to justify rule 11

sanctions

GENERAL RULES GOVERNING ALL PLEADINGS Basic Requirements

i. RULE 10(a) requires every pleading to have a caption that includes the name of court, the docket number of the action, the names of the parties, and a designation of the pleading

ii. RULE 10(b) requires all allegations to be set forth in numbered paragraphs and that all allegations in each paragraph "shall be limited as far as practicable to a statement of a single set of circumstances"

Other Rules i. RULE 8(e)(2) allows pleading in the alternative

ii. RULE 10(c) allows parties to attach exhibits to their pleadings.

iii. RULE 10(c) allows a pleader to incorporate prior allegations by reference in later parts of the pleading

iv. RULE 38(b) provides that a demand for jury trial "may be indorsed upon a pleading. The right to jury trial is waived if not demanded within ten days of the close of pleadings

COMPLAINT In General

i. RULE 3: a civil action is commenced by the filing a complaint with the court

ii. the complaint sets forth the plaintiff's claim iii. look to see if the rules allow joinder of all the desired parties iv. look to see that the claim is legally sufficient:

the substantive law governing the claims and ascertain whether there is good ground to file suit.

If not defendant will file a motion to dismiss RULE 12(b)(6) a. Courts only look to the face of the complaint b. The issue is not whether a plaintiff will ultimately prevail

but whether he is entitled to offer evidence to support the claims. Requirements

i. A "short and plain statement of the grounds upon which the court's jurisdiction depends"

RULE 8(a)(1) requires the plaintiff to allege the basis for SMJ over the action

ii. A "short and plain statement of the claim showing that the pleader is entitled to relief"

RULE 8(a)(2) requires a "short and plain statement of the claim," and that very brief, general allegations will suffice to avoid dismissal. However since RULE 8(b) requires the defendant to respond paragraph by paragraph, a more detailed complaint will elicit more specific denials or admissions in the defendant's answer

RULE 8(a)(2) requires the complaint to include a "short and plain statement of the claim showing that the pleader is entitled to relief.

EXCEPTIONS TO RULE 8(a)(2) RULE 9(b) averments of fraud or mistake shall be

stated with particularity RULE 9(g) special damages shall be specifically

stated iii. A "demand for judgment for the relief the pleader seeks"

RULE 8(a)(3) requires a demand for relief RULE 54(c) the demand does not limit the plaintiff's recovery

Dismissal i. Voluntary Dismissal

RULE 41(a) permits the plaintiff to dismiss:

By filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever occurs first, or

By filing a stipulation of dismissal signed by all parties who have appeared in the action.

ii. Involuntary Dismissal a. RULE 41(b) allows the court to dismiss the plaintiff's case

Rule appears to preclude the court from ordering involuntary dismissal on its own motion, since it provides that "a defendant may move for dismissal" under the following reasons

Lack of jurisdiction Improper venue Failure to join a party under RULE 19

ANSWER The answer is the defendants response that states his position as to each of the allegations in the complaint and asserts any other defenses he may have to the plaintiff's claim

Responses to the Plaintiff's Allegations a. RULE 7(a) requires that the defendant respond with the complaint b. RULE 12(a)(1)(A) defendant must serve an answer to the complaint

within 20 days of receiving the summons and complaint (60 days if process waived)

c. RULE 8(b) requires the defendant to respond to each allegation in the complaint by:

admitting or denying the allegations stating the parts that are true and denying the remainder stating that the defendant does not have enough information to

assess the truth of the allegation Such an allegation has the effect of a denial.

d. RULE 8(b) also requires the defendant to respond clearly and forthrightly to the allegations of the complaint

e. RULE 10(b) provides that "each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth"

f. RULE 8(e)(2) a defendant may plead inconsistently. Affirmative Defenses (raised via 8(c))

i. Accord and satisfaction ii. Arbitration and award

iii. Assumption of risk iv. Contributory negligence v. Discharge in bankruptcy

vi. Duress

vii. Estoppel viii. Failure of consideration

ix. Fraud x. Illegality

Claims by the defendant i. Counterclaim

ii. Cross-claim iii. Force joinder of parties

Failure to Respond: Default and Default Judgment i. If a defendant fails to plead or otherwise respond in time they are held

in default. This is just a notation on the court's docket sheet. ii. The party must seek a default judgment

iii. RULE 55(b)(1) when the judgment is for a sum certain or a determinable amount the clerk can enter judgment

iv. RULE 55(b)(2) in all other cases you must ask the judge v. RULE 54(c) a judgment by default shall be the same as the amount

prayed for in the demand for judgment. REPLY

7(a) requires a reply to a counterclaim if denominated as such 12(a)(2) reply must be served within 20 days of answer

SUPPLEMENTAL PLEADINGS

15(d). Facts that arise after the filing of the pleading. This motion is made to submit a supplemental pleading setting forth

events that arise after the filing of the original pleading. Must be with courts permission. Freely Granted unless undue delay, bad faith, prejudice.

Quick Terms

Upon information and belief Lack information sufficient to form belief Insufficient information to form a belief Admit specific, deny the rest (general)

Admit that Smith was driving truck, deny rest Admit accident involved Acme employee, deny the rest

Talbot - AMENDMENTS Wednesday, April 30, 2008 11:32 PM

INTRO

Rule 15 establishes fairly lenient rules regarding amendment of pleadings. AMENDING BEFORE TRIAL

15(a) - before the responsive pleading is filed no permission is requirement for the FIRST amendment

15(a) - after the responsive pleading is filed, permission to amend shall be freely given where justice so requires by the court OR with the consent of the other parties.

Granted unless opponent shows a compelling reason not too Undue delay, bad faith, gross negligence, prejudice to other party

AMENDING TO CONFORM TO EVIDENCE

15(b) used when evidence at trial is different than the pleadings 15(b) allows two ways to amend a pleading to conform to evidence

1. Consent of the parties Express Implied through a failure to object

2. Permission of the judge with good reason and no prejudice

RESPONSE TO AMENDED PLEADING A party shall plead response to amended pleading within the time of the original

pleading or within 10 days whichever is greater.

Talbot - RELATION BACK Thursday, May 01, 2008 4:45 PM

INTRO Rule 15(c) provides the framework for determining whether to allow a party to amend their complaint after the limitations period for the complaint has run. IN GENERAL

RULE 15(c) provides that the amendment to a pleading will "relate back to the date of the original pleading" if it arises from the conduct, transaction, or occurrence set forth in the original pleading

ADD A NEW CLAIM

RULE 15(c)(2) provides that, once you have sued the defendant for particular conduct, or a certain transaction or occurrence, any amendment to add new claims based on the same conduct, transaction or occurrence will be treated, for statute of limitation purposes, as though it had been in the original complaint.

Marsh v. Coleman Company (1992)

P claimed his termination violated a federal age discrimination act. He later amended his complaint to allege fraud against his employer

1. Since he limited his factual allegations to his termination, "a reasonably prudent person would not have expected from reading the plaintiff's original complaint that promises made to the plaintiff before termination might be called into question through subsequent pleadings.

2. Court found that the amended pleading alleging fraud did not relate back to the original complaint

ADD A NEW PARTY

RULE 15(c)(3) amendments to add a party will only relate back if three requirements are met:

1. The claim against the new party to be added by amendment arises from the same conduct, transaction or occurrence as the original claim (RULE 15(c)(2) satisfied)

2. The new party had notice, within the period for delivery of the original complaint, that the action against the original defendant had been filed (120 days from filing 4(m))

3. The new party knew or should have known that, but for a mistake as to the identity of the proper party, the original action would have been against him.

Talbot - JOINDER Thursday, May 01, 2008 4:46 PM

IF THE CLAIM IS AGAINST A THIRD PARTY/ADDITIONAL PARTY THEN ADD UNDER RULE 19, 20 THEN RETURN

1. CLAIM JOINDER BY PLAINTIFFS RULE 18(a) allows the claimant to assert every claim she has against the

opposing party. (permissive rule) i. Original claim

ii. Counterclaim iii. Cross-claim iv. Third-party claim

RULE 18(a) allows claims to be asserted are not transactionally related

2. CLAIM JOINDER BY DEFENDANTS

COUNTERCLAIMS RULE 13(a) Compulsory Counterclaims (only compulsory claim)

1. "Same transaction or occurrence"

2. IT IS A LOGICAL RELATIONSHIP. whether essential facts of various claims are so logically connected that considerations of juridical economy and fairness dictate that all the issues resolved in one lawsuit. (Hart)

3. SMJ : 1331, 1332, or 1367 4. IPJ does counterclaim waive objection to IPJ? Argue 13(a)

requires assertion of counterclaims RULE 13(b) Permissive Counterclaims

1. Defending parties may also assert counterclaims that are completely unrelated to the original claim. The court could sever the claim under Rule 42(b) b/c efficiency is not an issue.

2. SMJ: (Same Transaction or Occurrence not present-Case or Controversy not present, 1367 IS NOT AVAILABLE! NOTE IT ON EXAM!)

Rule 18 Permissive Joinder of Claims Analysis if the asserting party has already asserted a claim

CROSS-CLAIMS RULE 13(g) allows a party to assert an offensive claim against a co-party

if it arises from the same transaction or occurrence as the underlying action Analysis if it arises out of the same transaction or occurrence

that is the subject matter of the original litigation. i. Same event (same occurrence)

ii. Some overlap of witnesses and evidence What are the witnesses talking about and is there

overlap (explain how they overlap) Same evidence (specifically explain what

evidence) iii. May be made against any co-party (not opposing party) if

they arise out of Same Transaction of Occurrence of original claim, counter-claim, or relate to the res in an in rem action. Can be for indemnification. 1367 available.

iv. SMJ: 1331 or, 1332, 1367. Rule 18 Permissive Joinder of claims IF the asserting party has already

asserted a claim 1. Power, Can we join the claims?

i. any claim or alternative claim against another party may be joined without restriction

ii. Contingent claims are allowed (a claim not yet ripe unless another claim succeeds)

2. Discretion, should we join the claims? i. Efficency: factual/ logical/ legal similarity of the claims

ii. Confusion/ prejudice

3. If not, then the court can order separate trials under 42 (B) Severance.

4. SMJ

3. PROPER PARTIES RULE 20(a) who may be joined as co-plaintiffs in a case? 2 part test:

i. Same transaction or occurrence ii. Our claims raise some common question SMJ IPJ

RULE 21 misjoinder of parties is not grounds for dismissal. Parties may be dropped by the court.

4. NECESSARY AND INDISPENSIBLE PARTIES RULE 19 who must be joined in a case

"Just Adjudication" basically Is the absentee necessary? 19(a) Yes if meets any of the following:

1. 19(a)(1) can the court accord complete relief among those already joined? If no then meet

2. 19(a)(2)(i) the absentee's interest may be harmed if she is not joined

3. 19(a)(2)(ii) does the absentee's interest potentially subject the defendant to multiple or inconsistent obligations?

Exception: joint-tortfeasors are not necessary Is Joinder of the absentee feasible?

Will joinder deprive the court of complete diversity? Cant the court get personal jurisdiction over the absentee?

If answer to 1 and 2 differ, should the court proceed without the absentee or dismiss the case? 19(b)

Courts will almost never dismiss unless there is an alternative forum

To what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties

The extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessoned, or avoided

Whether a judgment rendered in the persons absence will be adequate

Whether the plaintiff will have adequate remedy if the action is dismissed for nonjoinder

IF FAIL TRY TO GET UNDER PROPER PARTIES 12(b)(7) allows dismissal of a case for failure to join necessary parties under

RULE 19

Cases Haas v. Jefferson National Bank (1971) Haas(OH) sues a bank (FL). The bank moves to dismiss under 12(b)(7),

and court responds with a Rule 19 order on Haas to join Glueck(OH). a. Court holds that being an important witness is not enough for

compulsory joinder RULE 19(a)(1) b. Court holds that Glueck has a an interest that would be impeded

if he is not joined RULE 19(a)(2)(i) c. Since complete diversity is not gone, the court dismisses for two

reasons 1. Without Glueck, the judgment will be prejudicial to the

bank 2. There is an adequate remedy available, state court

Temple v. Synthes Corp. (1990) Temple (MS) sued Synthes (PA) in federal court. Temple sued

LaRocca(LA) and Hospital(LA) in LA state court Temple and LaRocca cannot make a motion to remove to federal

court because of 1441(b) 1441 a is rule of removal, b is exception will only remove

by defendants sued in their own state under federal question Synthes makes a RULE 12(b)(7) motion because Synthes and

LaRocca are necessary parties LaRocca and the Hospital or not RULE 19(a)(1) parties

Not RULE 19(a)(2)(i) or RULE 19(a)(2)(ii) RULE 12(b)(7) motion denied

5. IMPLEADER (third party practice) RULE 14(a) allows a defendant to assert any claim against a third-party

defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff

LOOK TO INDEMNIFICATION

6. INDEMNIFICATION Indemnification is the addition of a third party who may also be liable for some or all of the existing claim.

IF PLAINTIFF IS ASSERTING - RULE 14(b) When a counterclaim is asserted against a plaintiff, the plaintiff may

cause a third party to be brought in under the circumstance which under this rule would entitle a defendant to do so.

Sen. 7: can assert any claim against the 3rdparty arising out of the same transaction or occurrence that is the subject matter of the 's claim against the 3rdparty .

Sen. 8: Any party may move to strike 3rd party claim, or for its severance or separate trial.

IF DEFENDANT IS ASSERTING - RULE 14(a)

Sen. 1: may bring in 3rd party who is liable to for all or part of s claim against . Sen. 2: need not obtain leave to make service if files 3rd party complaint not later than 10 days after original answer Sen. 3: Otherwise must obtain leave on motion upon notice to all parties to the action (discretionary with the court) Sen. 8: Any party may move to strike 3rd party claim, or for its severance or separate trial.

3. IF THIRD PARTY DEFENDANT IS ASSERTING - RULE 14(a) Sen. 4: 3rd party shall make any defenses to s claim as provided in R. 12 and any counterclaims against or cross claims against other 3rd Party s as provided under R. 13 Sen. 5: 3rd Party may assert against any defenses which has to s claim Sen. 6: 3rd Party may assert any claim against arising out of the transaction or occurrence that is the subject matter of s claim against . Sen. 8: Any party may move to strike 3rd party claim, or for its severance or separate trial. Sen. 9: 3rd party may bring in 4th party - 3rd party may proceed under this rule against any person not a party to the action who is or may be liable to the 3rd party for all or part of the claim made in the action against the 3rd party .

IPJ Do complete analysis for new party

SMJ 1331, 1332, 1367

7. INTERVENTION Parties not joined under rule 19 or 20 can nevertheless intervene into the action through RULE 24

Motion to intervene must be made "upon timely application" rule 24 We look to how close we are to trial and when the intervener became

aware of the litigation

INTERVENTION OF RIGHT 24(a)(1) - when a statute confers an unconditional right to intervene

24(a)(2) - the intervener has an interest in the subject of the action, disposition of the action as a practical matter impairs or impedes the applicant's ability to protect that interest, unless the intervener's interest is adequately represented by existing parties

1. Show interest will be harmed if not joined and 2. Nobody is representing her right now Just like 19(a)(2)

1367(a) generally allows supplemental jurisdiction over 19(a) interventions

PERMISSIVE INTERVENTION (discretion of the court)

i. 24(b)(1) - when a statute confers a conditional right ii. 24(b)(2) - when the intervener's claim or defense and the main action

have some question of law or fact in common Talk about common issues of fact Talk about common issues of law Talk about the seriousness of the intervener's interest Ask if it will unduly delay or prejudice the adjudication of the

rights of the original party. CONCLUSION: how great of a gain in efficiency will there be by

combining claims

SMJ i. 1367(a) generally allows supplemental jurisdiction over 19(a)

interventions ii. Do analysis for 19(b) interventions

IPJ

The intervener voluntarily submits to the courts jurisdiction

Rule 42 can be used to separate the trials

8. INTERPLEADER When the stakeholder wants all parties with an interest in the thing present so

one judgment is binding on them all. Prevents issues of multiple liability RULE INTERPLEADER RULE 22

Complete diversity Over 75K amount in controversy Proper venue

STATUTORY INTERPLEADER 1335 1. Minimal diversity 1335(a)(1)

2. Amount in controversy 1335(a)(1) i. Amount must exceed $500

ii. Deposited in the court 3. 1397 venue where any plaintiff resides 4. 2361 Nationwide service of process IPJ

Pan American Fire & Casualty Co. v. Revere (1960) School bus accident, multiple deaths

Insurance company brings interpleader because it doesn't want to pay out over its policy limit

Court allows the joining of multiple state court claims to allow one ruling

State Farm Fire & Casualty Co. v. Tashire (1967) Bus-truck accident in CA

The insurer brought an interpleader action for the $10K policy This was a proper case for interpleader Not a proper case for injunction, because this one little policy is not

important enough to shape the wholke claim Counterclaim for interpleader RULE 13(a) Join additional defendants on counterclaim RULE 13(g)

Talbot - CLASS ACTIONS Wednesday, April 30, 2008 11:30 PM

INTRO Class action status is a legal device that allows disputes involving large numbers of plaintiffs to be settled in one trial or settlement. One or more class representatives are formally joined as parties in the case. The remaining members of the class action are not joined, but are bound to the outcome. If the plaintiffs can meet the requirements set forth in Rule 23(a) and (b) they can make a motion for class action certification

1. Who is in the class?

1. INITIAL REQUIREMENTS The class must meet all of the factors in 23(a) Numerosity: So many members that joinder of all members is impractical. 40

usually enough, but no magic number. Some common question of fact or law that unite all the claims by all the

members. Talk about issues of fact, then issues of law

3. Typicality: Shared claims or defenses between the representative and the non-party members. If there are unique subsets of the members, then sub-class groups are created with sub-representatives in order to satisfy due process.

The class can be broken down into subclasses each with their own class status 23(c)(4)

4. Fair and Adequate Representatives: Nature of the adequacy of the class representation (must be capable of exercising judgment for the class) and the representatives attorney (experience and resources).

Look at the representative (age) and the law firm

2. WHAT KIND OF CLASS ACTION? One of these factors must be met 23(b)

23(b)(1)(A) Separate prosecution will create inconsistent adjudications which would establish incompatible standards of conduct OR

23(b)(1)(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests

Usually the class actions have some pre-existing relationship, and the adjudication would effect everyone in that group so class action status is needed to protect all the witnesses.

23(b)(2): The opposing party has acted towards the class such that declarative and injunctive relief is appropriate for a class. Focus is not monetary relief OR

Ex. Civil right action gender discrimination 23(b)(3) : The court finds that the questions of law or fact common to the

members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

DISCUSS: i. Interest of members of the class in individually

controlling the prosecution or defense of separate actions ii. The extent and nature of any litigation concerning the

controversy already commenced by or against members of the class

iii. The desirability or undesirability of concentrating the litigation of the claims in the particular forum

iv. The difficulties likely to be encountered in the management of a class action.

COMMON ISSUES PREDOMINATE: i. Common issues all go to liability (Independent issues -

Individual would be particular harms, injuries) ii. Predominate Issues where the real battles are going to

be fought. This is where most of the litigation time will be spent. (Court will primarily have to spend time deciding)

CLASS ACTION IS THE SUPERIOR METHOD FOR ADJUDICATION i. Better than having all individual s sue on their own

ii. Efficiency iii. Interest in Individual in bringing their own claim

(variations in amount of damages sought), and more $$ by going to trial

iv. Maximum pot first to court gets all the money. (Small company will be insolvent) more equitable to be class action.

v. Only way case will be brought, because individual monetary claim is not much ($25).

3. NOTICE Not requires for (b)(1) or (b)(2) For 23(b)(3) class actions, the court must send notice (that they can opt out see

below) to all members who can be identified through a reasonable effort. Tells them:

They can opt out They are bound if they do not opt out They can enter a separate appearance through counsel

4. WHO IS BOUND

Everyone except those who opt out of a (b)(3) (b)(1) and (b)(2) cannot opt out.

5. SMJ

To bring the class action into court, the class must allege the basis for proper SMJ over which the court may hear this claim.

FQSMJ 1331 FQSMJ (civil rights, security fraud, etc)

DIVERSITY SMJ Special rules govern diversity in class actions. Specifically the Strawbridge

complete diversity rule is abandoned. 1332(d) governs diversity SMJ over class actions The amount in controversy must exceed five million dollars 1332(d)(2)

and any member of the class must be diverse from any defendant 1332(d)(2)(A)

Even then the court may decline to exercise jurisdiction "in the interest of justice and looking at the totality of the circumstances" 1332(d)(3)

1332(d)(5)(B) If the number of members of the class is less than 100 1332(d)(2) does not apply.

Old Fashioned Diversity 1332(a) Complete diversity Strawbridge

Citizenship of the class reps (including subclasses) Amount in controversy

Every plaintiff must have more than 75K individually - Zahn Supplemental Jurisdiction 1367

1367 can be used to bring un absent class members according to Abbot which argues that 1367 overruled Zahn 5th circuit

6. IPJ In general IPJ rules are meant to protect defendants who have the most to lose,

therefore the court needs IPJ over all members of the defendant class. Specific IPJ Continuous and systematic contacts (general IPJ)

Class representatives can consent to IPJ. Philips - not really worried about IPJ over plaintiffs since there interest

are not being impeded 7. PROCEDURE

In the complaint it must be specified that the suit is a class action 23(c)(1)(A) A class representative must make a motion to certify the class action 23(c)(1)

and the class must be notified under 23(c)(2) The class can be broken down into subclasses each with their own class status

23(c)(4) The court must appoint counsel under 23(g) The court has an extra interest in supervising the class action to protect the

interest off all the class members that are not there to watch out for themselves. The court must approve any settlement, dismissal, or compromise 23(e)

8. OTHER Disputes between members:

A divergence of goals/interest between the representative and the members violates due process

A disagreement about case tactics/methods does not violate Hansberry but can be unfair

Class Action Fairness Act of 2005: The Act gives federal courts jurisdiction to certain class actions in which the amount in controversy exceeds $5 million, and in which any of the members of a class of plaintiffs is a citizen of a state different from any defendant

Talbot - DISCOVERY Wednesday, April 30, 2008 11:38 PM

Whole idea is to decide the trial on the merits

1. REQUIRED DISCLOSURES 26(a) Parties must produce information at 3 different times in the litigation

even if nobody request it 1. 26(a)(1) Initial disclosures

i. Must be done within 14 days of 26(f) conference

ii. Must identify people and documents with discoverable information that you may use to support your claims or defenses (not information for impeachment)

iii. Plaintiff must give a computation of damages iv. Defendant must disclose insurance they have for all or some

part of the claim 2. 26(a)(2) experts

i. RULE 26(a)(2) requires that at least 90 days before trial, each party identify all experts who may testify at trial.

ii. RULE 26(a)(2)(B) requires the disclosure be accompanied with a written report prepared and signed by the expert

This report must include "the data or other information considered by the witness in forming the opinions"

iii. RULE 26(b)(4)(A) once the report has been turned over, the expert may be deposed.

26(a)(3) trial evidence 1. parties are required prior to trial to disclose the names of witnesses

expected to be called at trial or whose depositions will be used at trial, and a list of documents and exhibits expected to be offered into evidence

2. these disclosures must be made at least 30 days prior to the trial, the other side then has 14 days to raise objections.

2. DISCOVERY TOOLS

DEPOSITIONS

RULE 30(a)(2)(A) imposes a presumptive limit of 10 depositions per side RULE 30(d)(2) limits each deposition to one day of seven hours RULE 30(b)(2) permits depositions to be recorded electronically RULE 30(b) if the deponent is a party, counsel initiates the deposition by

sending a notice of deposition to all parties in the action, stating the time and place of the deposition

RULE 45 if the deponent is not a party, he must be "subpoenaed" for the deposition

RULE 30(c) the witness is sworn, subjecting the testimony to the penalties of perjury

RULE 30(c) unlike in trial, if a question is objected to, the witness must still answer

RULE 30(d)(1) objections based on privilege allows counsel to instruct the witness not to answer

RULE 32(c) a transcript is required if the deposition is later offered into evidence.

INTERROGATORIES RULE 33 allows any party to send to any other party written questions

that require a written response under oath. RULE 33(a) imposes a presumptive limit of 25 interrogatories per party RULE 33(b)(1) requires the responding party to answer each

interrogatory under oath

3. REQUEST TO PRODUCE DOCUMENTS OR EVIDENCE RULE 34(c) available from a non-party with a subpoenaed. RULE 34 permits a party to require another party to produce for

inspection, copying or testing all relevant documents or other tangible things.

4. PHYSICAL OR MENTAL EXAMINATION RULE 35 requires a court order to require a party to submit to a physical

or mental examination by a "suitable licensed or certified examiner" RULE 35 can only be used when the movant shows "good cause" and

the mental or physical condition is "in controversy"

5. REQUEST FOR ADMISSION RULE 36 Asks the party to admit or deny

Failure to deny can be an admission

RULE 26(g) Counsel must certify that request and responses are not frivolous

3. SCOPE OF DISCOVERY

Standard 26(b)(1) We can discover anything relevant to a claim or defense of any party

Things Protected From Discovery Privileged Material

RULE 26(b)(1) permits discovery only of material that is "not privileged"

RULE 26(b)(5) requires a party to claim the privilege "expressly" and to describe in sufficient detail the documents, communications, or things not produced so as to enable "other parties to assess the applicability of the privilege or protection."

Work Product RULE 26(b)(3) bars the production of certain materials

developed in anticipation of litigation in three categories Hickman Case a. Documents prepared in anticipation of litigation that

contain information that can reasonably be obtained through other means, cannot be discovered

b. Opposing counsel's thought process in preparing a case, such as legal theories or litigation strategy, cannot be discovered.

c. If the requesting party demonstrates that (1) she has a substantial need for materials developed in anticipation of litigation, and that (2) similar information cannot be obtained through other means without substantial hardship, the court may order production

4. DISCOVERY SANCTIONS RULE 37(c)(1) failure to make a required disclosure 26(a) or to amend or

supplement its responses 26(e) RULE 37(c)(2) failure to admit something that should have been admitted under

36 RULE 26(c) protective order

The request is over burdensome PARTIAL FAILURE TO COMPLY (minor sanction)

Party answered some interrogatories, but not all Party answered some question at deposition, but not all Party responded to request for production, but has failed to say he will

allow production TOTAL FAILURE TO COMPLY

Party failed completely to show at deposition Party failed to answer any interrogatories Party failed to respond to request for production PROCEDURE: must show that he attempted to confer with other party

in good faith to prevent judicial intervention RULE 37(a)(2) motion to compel RULE 37(b) authorizes the court, if the party does not respond to

the motion to compel, to impose sanctions a. Striking claims b. Taking disputed facts or claims as established c. Excluding evidence d. Dismissing the action e. Ordering payment of the fees and expenses caused by

the refusal to comply RULE 37(a)(4) the court can order the noncomplying party to pay

the moving party's expenses and fees for the motion to compel RULE 37(a)(4)(C) the court may enter protective orders defining

the scope of required discovery and barring unwarranted or harassing doscovery

o Discovery of Material in Electronic Form

RULE 34 provides for discovery of "data compilations" and has consistently been interpreted as extending to material in electronic form

RULE 26(b)(2) allows the court to limit discovery when "the burden or expense of the proposed discovery outweighs its likely benefit."

RULE 26(c) allows a court to enter a protective order to prevent "undue burden or stress"

5. TIMING RULE 16(b) the scheduling order can be issued at any time, but must be issued

no later than 90 days after the appearance of the defendant and 120 days after service of the complaint.

RULE 26(f) requires that all parties or their counsel confer "as soon as practicable and in any event at least 21 days before the scheduled conference is held or a scheduling order is due under RULE 16(b)

RULE 26(d) the purpose of the conference is to discuss "the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by RULE 26(a)(1), and to develop a proposed discovery plan."

RULE 26(d) no discovery can occur until the after the conference has occurred. RULE 26(a)(1) the initial disclosures required by RULE 26(a)(1) must be

produced within 14 days after the RULE 26(f) conference RULE 26(f) within 14 days after the RULE 26(f) conference, the parties must

submit a written report of this conference.

6. PRETRIAL CONFERENCES AND ORDERS

RULE 16(a)(5) the express objective of conferences has been "facilitating the settlement of the case"

RULE 16(b) federal judges can refer RULE 16 matters to a magistrate judge RULE 16(b) requires a scheduling order in all cases except those falling into

categories exempt by court rule. RULE 16(b) permits, but does not require, the court to hold a scheduling

conference with the parties or their lawyers to assist in her preparation of the scheduling order.

RULE 16(b)(1-3) The scheduling order must establish time limits for joinder of additional claims or parties, amendment of pleadings, motions, and discovery

RULE 16(c) through ongoing monitoring, the court may be able to narrow the number and scope of issues still needing resolution at trial.

RULE 16(d) "as close to the time as reasonable under the circumstances," the court may hold the final pretrial conference, to "formulate a plan for trial, including a program for facilitating the admission of evidence."

RULE 16(e) the judge enters an order "reciting the action taken" at the

Talbot - SUMMARY JUDGMENT Thursday, May 01, 2008 5:11 PM

INTRO The motion for summary judgment is designed to allow early resolution of cases in which the plaintiff meets the minimal burden to plead the elements of a compensable claim, but cannot prove one or more of those elements.

MOTION TO DISMISS 12(b)(6) Granted if the face of Pleadings dont assert a claim

MOTION FOR SUMMARY JUDGMENT

RULE 56 Decided on law based on undisputed facts. Can be beyond pleadings (discovery, affidavits, etc.).

What will the judge decide on? a. Whether there is a genuine issue of law or fact

1. Genuine Issue Enough evidence that reasonable jury would find in your favor (Anderson)

2. Material Fact: Fact that will affect the outcome of the dispute 3. Cite Celotex needed burden of proof requires more than a little bit

to get to jury If fraud .. then must be stated with particularity. b. Whether moving party is entitled to judgment as a matter of law (Typically not a

problem)

If get an Affirmative Defense Question (Failure to state it). 1. Preclusion 8(c) 2. Is this an Affirmative Defense 3. R. 15 (b) - Permission of the judge with good reason and no prejudice (Judge

can admit conditionally with a continuance.) a. Then Apply it

4. Rule 16(e) Pretrial order shall be modified only to prevent manifest injustice

Can we assert collateral estoppel (issue preclusion) or res judicata (claim

preclusion)? If you were not a party to the original claim, then res judicata does not

apply. (class action situation). THESE ARE BOTH AFFIRMATIVE OFFENSES UNDER RULE 8c!!! Defensive mutual collateral estoppel is acceptable Offensive is only ok sometimes.

Talbot - SUPPLEMENTAL JURISDICTION Thursday, May 01, 2008 4:08 PM

INTRO The rules frequently authorize joinder of claims over which there is no independent basis of SMJ. This dilemma was somewhat solved by the creation of supplemental jurisdiction through 1367. If the plaintiff brings a proper federal claim or diversity claim, so the court has "original jurisdiction," the court may hear all claims that are part of the same "case or controversy under Article III." FIRST, DOES THIS CLAIM MEET 1367(a) statute of Gibbs

Other claims that are part of the same "case or controversy" Case or controversy was defined in Gibbs (albeit before 1367 was drafter) as the

"common nucleus of operative fact" as the federal claim. EXAMPLES

A first sues a non-diverse party on a claim of federal question. A state law claim is joined under 18(a). No independent basis for jurisdiction Supplemental rescues.

A first sues a non-diverse party on a claim of federal question. The brings a compulsory counterclaim 13(a) based on state law. No independent basis for jurisdiction Supplemental rescues.

A (LA) sues (CA) on a claim of federal question. The impleads a 3P (CA) under 14(a) for a state law claim. No independent basis for jurisdiction Supplemental rescues.

SECOND, IT CANNOT MEET 1367(b) statute of Owens

Limits on supplemental jurisdiction: will not extend to certain claims by PLAINTIFFS in DIVERSITY cases

1. Claims against persons made parties under rule 14, 19, 20, or 24 2. Claims by persons proposed to be joined as plaintiffs under rule 19 3. Claims by persons seeking to intervene as plaintiffs under Rule 24 If allowing these claims violated 1332

EXAMPLES

A 3P (LA) is joined by the (CA) under 14(a). (LA) cannot assert a state law claim against the 3P.

2 (CA) is joined under 19 or 20 with 1 (LA) (CA) cannot assert a state law against 2.

2 (LA) intervenes under 24 into a suit between (LA) and (CA). cannot assert a 13(g) cross claim against 2.

(LA), in a suit against (CA), makes a Rule 19 motion to join X (CA) as 2. Motion denied.

X (CA) seeks to intervene as 2 under Rule 24 in a suit between (LA) and (CA). Motion denied

FINALLY, 1367(c) ALLOWS COURT DISCRETION Gives the court discretion to decline to exercise supp jur for the following

1. Claim raises a novel or complex issue of state law 2. The claim substantially predominates over the claim or claims over which the

court has original jurisdiction 3. The court has dismissed the original claims 4. In exceptional circumstances, there are other compelling reasons for declining

jurisdiction