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Civil ProcedureRemedies:

Substitutory - damageso Compensatory

Economic Non-economic (pain and suffering)

o Punitive – deterrence and retribution Courts reviewing punitive damages must consider three

guideposts: o (1) the degree of reprehensibility of the defendant's

misconduct;o (2) the disparity between the actual or potential

harm suffered by the plaintiff and the punitive damages award; and

o (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. (State Fram) Punitive awards far exceeding a single digit ratio between punitive and compensatory awards will hardly ever satisfy due process.

Appellate courts must conduct de novo review of a trial court's application of the relevant guideposts for reviewing punitive damages to the jury's award. Exacting appellate review (State Farm)

o Liquidated damages – parties agree beforehand; rules about liquidated damages – concern with equal bargaining power

o Interest Before judgment After judgment

Specific – injunctions (equitable relief)o Temporary Restraining Order (TRO)

FRCP 65(b)

The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

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o preliminary injunction (after hearing but before trial) must establish that he is likely to succeed on the merits, he is likely to suffer irreparable harm in the absence of preliminary

relief, the balance of equities tips in his favor, (preliminary injunction

won’t harm defendant more than it helps plaintiff) an injunction is in the public interest (Winter)

o Permanent injunctive relief (after trial) (1) Balancing the hardship on plaintiff if relief is denied as

opposed to hardship to defendant if it is granted (Sigma Chemical) (2) Finding that plaintiff is being threatened by some injury for

which he has no adequate legal remedy (Sigma Chemical)

Declaratory

Ethical Limits in Litigation Generally and Pleading in Particular:

Rule 11o 11(a): “Pleading, written motion or other paper” which may be stricken if Rule

11 violated.o 11(b): Conduct that may violate Rule 11

o (1): Improper purpose

o (2): Not warranted by existing law (counsel only)

o (3-4): Factual support

o 11(c)(1): The sanction is within the discretion of the Court against counsel (and

the firm absent “extraordinary circumstances) and the party (but not (b)(2))o 11(c)(2): Requires separate motion after 21 days (the “safe harbor” period)

o 11(c): Court may impose on its own but only after a “show cause” hearing

28 U.S.C. 1927 Inherent Power of the Court Rules of Professional Conduct

PleadingFRCP 7(a) and (b)

FRCP 8 (a)1)Jurisdiction 8(a) (1)2)Short and plain Statement of claim showing that pleader is entitled to relief 8 (a) (2)

Iqbal

Conclusory statements are not facts, and are not presumed to be true

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Facts have be facial plausibility of the each element of the claim “nudge the claim across the line from conceivable to plausible”

3)Demand for relief sought 8 (a) (3)FRCP 8(d)(1): Simple and ConciseFRCP 8(e): Construe with respect to justice

FRCP 9(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.

• Circumstances of Fraud/Mistake allege with particularity.• State of Mind allege generally

Amending Pleadings• Amending the Complaint: Usually to add or change a claim or a defendant.• Amending an Answer: Usually to add or change a response to an allegation (more facts

or different facts), to add an affirmative defense, or to add a counterclaim or a crossclaim.• Why do you have to amend? (Notice)

• 15(a)(1): As a “matter of course” within 21 days• 15(a)(2):

By Agreement: The opposing party provides written consent. By Court Order: A party moves for leave to amend and the court grants it. “The

court should freely give leave when justice so requires.” (Beeck)• The reason for the delay in raising the matter to be raised by the

amendment• The prejudice to the opposing party caused by the delay

• 15(c)(1): An amendment to a pleading relates back to the date of the original pleading when:

(B) The amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set forth - or attempted to be set forth - in the original pleading (additional claim against the same party-

• The critical issue in Fed. R. Civ. P. 15(c) determinations is whether the original complaint gave notice to the defendant of the claim now being asserted. When new or distinct conduct, transactions, or occurrences are alleged as grounds for recovery, there is no relation back, and recovery under the amended complaint is barred by limitations if it was untimely filed.

Moore v. Baker,989 F.2d 1129, 1130(11th Cir. Ga.1993)

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• To resolve this question requires application of Rule 15(c)(1)(B) which permits an amendment to add a claim that “relates back” (i.e. is determined to be timely filed despite the running of the statute of limitations) if the claim “arises out of the same conduct, transaction or occurrence”.  Implicit in the requirements of 15(c)(1)(B) is that “justice so requires” 15(a)(2).   Thus, in addition to whether the fraud claim arises from the same conduct, transaction or occurrence is the question of whether defendant was or should have been on notice that a fraud claim might be involved in plaintiff’s complaint.   Absent such notice, defendant might be prejudiced by the delay in filing the claim.

(C): The amendment changes the party if 15(c)(1)(B) is satisfied…and…the party to be brought in by the amendment: (additional party, when the statute of limitation precludes an independnat claim against that party – the (Zileneski Case – this is a possible solution had 12 (c) (1) (C) been in place))

• (i): Received such notice of the action that it will not be prejudiced in defending on the merits, and

• (ii): Knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity

Joinder

• Rule 18(a): The pleader’s joinder of unrelated claims

• Rules 13(a) and (b): Counterclaims, distinguishing between compulsory and permissive

• Rule 13(g): Cross-claims among co-parties

• Rule 20: Joining multiple plaintiffs and/or defendants

• Rule 14: Third party joinder (derivative liability)

• Rule 23: Class actions

Basic Joinder of Claims – Rule 18

Rule 18(a): A party asserting a claim, counterclaim, crossclaim, or third-party claim, may join, as independent or alternative claims, as many claims as it has against an opposing party.

But cf. Rule 42(b)

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Joinder of Parties

Rule 20. Permissive Joinder of Parties(a): Persons Who May Join or Be Joined:

(1): Plaintiffs. Persons may join in one action as plaintiffs if:(A): They assert any right to relief . . . arising out of the same transaction, occurrence, or series of transactions or occurrences; and(B): Any question of law or fact common to all plaintiffs will arise in the action.

(2) Defendants(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and(B) any question of law or fact common to all defendants will arise in the action

Rule 42(b) vest in the district court the discretion to order separate trials or make such other orders as will prevent delay or prejudice. In this manner, the scope of the civil action is made a matter for the discretion of the district court, and a determination on the question of joinder of parties will be reversed on appeal only upon a showing of abuse of that discretion

Mosley v. General Motors Corp.,497 F.2d 1330, 1331(8th Cir. Mo.1974)

The purpose of Fed. R. Civ. P. 20 is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits. Single trials generally tend to lessen the delay, expense and inconvenience to all concerned. The impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged

Mosley v. General Motors Corp.,497 F.2d 1330, 1331(8th Cir. Mo.1974)

Class ActionRule 23

All of the four has to be satisfied:

23(a)(1): Numerosityo Separate joinder of each member is impracticable

23(a)(2): Commonalityo Common legal and factual issues; common contention that is capable of a class-wide

resolution of one stroke 23(a)(3): Typicality

o All claims or defenses of the representative party are typical of each class member 23(a)(4): Representative Adequacy

o Fairly and adequately protect the interest of each member of the class

Stage 2 Rule 23(b):

• 23(b)(1): To avoid inconsistent judgments

• 23(b)(2): Predominantly injunctive relief

23(b)(3): Common questions of law and fact predominate and it would be the superior way to proceed, taking into account the need for individual control, other litigation filed, desirability of one action and manageability

A 23(b)(3) class requires notice as described in 23(c).

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A judgment in a class action presumptively binds all represented parties

Counterclaims

A permissive counterclaim must have an independent jurisdictional basis, while a compulsory counterclaim falls within the ancillary jurisdiction of the federal courts even if it would ordinarily be a matter for state court considerationPlant v. Blazer Financial Services, Inc.,598 F.2d 1357, 1358(5th Cir. Ga.1979)

Rule 13. Counterclaims(a) Compulsory Counterclaims

(1) In General A pleading must state as a counterclaim any claim. . . if . . . (A)It arises out of the transaction or occurrence that is the subject matter of the

opposing party's claim;(B) and does not require adding another party over whom the court cannot acquire

jurisdiction. . . .

Failure to assert compulsory counterclaim results in waiver: defendant barred from bringing it in separate suit

(b) Permissive Counterclaims.A pleading may state as a counterclaim any claim against an opposing party any claim that is not compulsory

(g) Cross-Claim Against Co-Party

A pleading may state as a cross-claim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim or if the claim relates to any property that is the subject matter of the original action.

The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the cross-claimant

The federal court has supplemental jurisidciton over the cross-claim because it arises out of the same transaction or occurrence as the original claim

Rule 14: Third-Party Practice

(a) When Defending Party May Bring in Third Party.

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A defending party, may, as a third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it

• Impleader creates no substantive liability.

• If there’s a right to indemnity or contribution in the substantive law, impleader allows the suit for indemnity to be combined with the suit that creates the conditions for indemnification

• Conditions for impleader

• “if third party’s liability is in some way dependent on outcome of original action.” (Price)

• “third party liability must in some way be derivative of the original claim.” (Price)

• “third party may be impleaded only when the original defendant is trying to pass all or part of the liability onto that third party” (Price)

• But not if:

• If third party “solely liable to the plaintiff”

• “A third party claim is not appropriate where defendant . . . says, in effect, ‘It was him, not me.’”

Response

Timing of Response

• 12(a)(1)(A): • The 21 day rule• The 60 day rule upon waiver of service

• 12(b) motions generally must be made prior to the responsive pleading on the merits• 12(b) motions stop the clock for responding on the merits until the 12(b) motion is

resolvedPre-trail dilatory motions

1. 12(b) motion to dismiss – dilatory motions

• 12(b) motions generally must be made prior to the responsive pleading on the merits• 12(b) motions stop the clock for responding on the merits until the 12(b) motion is

resolved

• A party may assert the following defenses by motion (partial list):• (b)(1): Lack of subject matter jurisdiction• (b)(2): Lack of personal jurisdiction• (b)(3): Improper venue

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• (b)(4): Insufficient process • (b)(5): Insufficient service of process• 12(b)(7): Failure to join a party under FRCP 19 • 12 (b)(6): Failure to state a claim upon which relief can be granted

• Federal Court (Party: Motion to Dismiss; Court: Granted or Denied)• Some State Courts (Party: Demurrer; Court: Sustain or Overrule)

12 b (6) failure to state a claim upon which relief can be grantedEven if it is assumed that all the alleged facts are true, the

law grants plaintiff no legal remedy/ the law does not provide relief even if all the facts are true (The Haddle case, about “injury in property” and “at-will employment”)

12(e) Motion for a more definite statement

A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. (Only if D cannot answer, e.g., unintelligible; minority views: Can require more specificity if complaint is too vague, even if can be answered)

Rarely used

2. Default3. General denial 4. Respond specifically and tell another story5. Respond with additional claims and tell a story about those claims6. Respond and join additional parties

Response on the merits. Admittance and Denial

• 8(b)(1)(A) and its parallel language to 8(a)(2): A short and plain statement of defenses• 8(b)(1)(B): The need to admit or deny allegations made by the opposing party

• 8(b)(2): Must fairly respond to the allegations• 8(b)(3): General and specific denials, the former applicable if a good faith intent do deny

all allegations (Zielinski)• 8(b)(4): Denying part of an allegation admits that the rest is true

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• 8(b)(5): Responding on information and belief• 8(b)(6): Failure to deny as an admission

FRCP 11 representations to the court and sanctions, the ethics of pleading • Applies to civil litigation only• Applies to pleadings as defined by the rule• Objective standard: The “reasonable lawyer”• To sanction other civil litigation conduct may require exercise of the court’s inherent

authority or the application of other statutes such as 28 USC 1927

FEDERAL SUBJECT MATTER JURISDICTION

Subject Matter Jurisdiction: Does a federal court have power to consider the case? Source of Law:

Art.III Rule 12 (b) (1), never waived SMJ is non-waivable, unlike IPJ. Procedural consequences:

sua sponte objection—court can raise objection to jurisdiction at any time in proceeding, at any level of court.

dismissal of action for lack of subject matter jurisdiction is not a dismissal on the merits, it has no res judicata consequence

Types of Federal and State Subject matter jurisdiction Exclusive Federal Jurisdiction? (E.g. federal antitrust claims) Concurrent State and Federal Jurisdiction? (E.g. Diversity jurisdiction and many federal

statutes) Exclusive State Jurisdiction? (E.g. Divorce)

Article III (Appellate):

Section 1: The judicial power of the United States, shall be vested in one Supreme Court and in such inferior Courts as the Congress (may) establish.

Section 2: The judicial power shall extend to all cases … arising under the Constitution, the law of the United States and Treaties made …Controversies between two or more States; - between a State and Citizens of another State; - between citizens of different States

Federal Question well pleaded complaint rule - whether a federal question is affirmatively shown by a

fair reading of a well pleaded complaint

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the federal law or the const. or the treaty have to give rise to the cause of action; Federal law provides basis for plaintiff’s claim (“creates the cause of action”).

Exception: Must interpret/apply federal law and strong enough federal interest. (A competing (small) line of cases.)

A Δ’s use of fed. Law as basis for defense does not create FQ jurisdiction

28 U.S.C. 1331 (Original): The district court shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.

Diversity Article III: Minimal diversity and jurisdictional minimum 28 U.S.C. 1332 (and case law):

Complete diversity. Amount in Controversy Requirement Good faith claim More than $75,000 at stake

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . ., exclusive of interest and costs, and is between

Citizens of different States Citizens of a state and citizens or subjects of a foreign state unless the citizen of

the foreign state is a permanent resident of and domiciled in the same state Citizens of different states (even where foreign parties) Foreign state as plaintiff and citizens of a state 75,000 without regard to set offs and exclusive of interests and other costs For the purposes of this section… Corporation is where incorporated and principal place of businessRules for Diversity Jurisdiction

Whether a party is a U.S. citizen is determined by domicile (A U.S. citizen residing in a state with the intent to remain).

A foreign “subject” is narrower, requiring one to be a “foreign national” who has “sworn allegiance”.

Diversity under 1332 must be “complete” (Strawbridge). If a U.S. citizen sues a foreign citizen or vice versa, diversity exists. If diversity between U.S. citizens exists, the presence of foreign citizens on either or

both sides of the equation will not destroy it. 1332(a)(3). A(GE) + B(NY) v. C(FR) + D(CA)(diversity under 1332(a)(3))

However, foreign citizens on both sides of the equation and no U.S. diversity destroys diversity jurisdiction.

E.g. A(GE) v. B(FR) + C(CA) (no diversity) A foreign citizen’s domicile in the U.S. as a permanent resident alien will not create

diversity, but it may destroy it. 1332(a)(2)

Rules for Amount of Controversy One plaintiff, multiple unrelated claims – Yes

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single can aggregate all claims against several ’s only if claims arise out of common nucleus or operative fact

Two plaintiffs with separate claims – No One plaintiff above and one below – Both may aggregate only if the claims “arise out

of the same transaction” Multiple plaintiffs or defendants with common interest: Yes, if the total interest

exceeds 75K for all regardless of the size of the individual interests. Counterclaims – compulsory need not exceed 75K Common funds over 75,000 regardless of the size of an individual share - Yes

Supplemental Jurisdiction

Federal Question Arising under jurisdiction (1331) Diversity (1332) And now we add supplemental jurisdiction that grants the federal courts jurisdiction

over claims they could not hear if those claims were brought independently (1367) NB: This does not involve state claims brought in diversity case where there is

an independent basis for jurisdiction (1332)

28 U.S.C. §1367(a) Supplemental Jurisdiction

in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

Some transaction or occurrence or

Common nucleus of operative fact

• Does it involve the same question of law and fact?

• What do you have to prove for the federal claim and what facts for the state claim?

• Can you resolve the state claim without affecting the federal claim?

28 U.S.C. §1367(c) Discretion to decline Supplemental Jurisdiction

The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if:

1) The claim raises a novel or complex issue of State law

2) The (state) claim substantively predominates…

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3) The district court has dismissed all claims over which it has original jurisdiction

4) In exceptional circumstances there are compelling reasons not to exercise jurisdiction

1367(b): In any civil court in which the district court shall have original jurisdiction founded solely (on diversity ) the district court shall not have supplemental jurisdiction over parties when exercising supplemental jurisdiction would be inconsistent with the jurisdictional requirements of 1332

28 U.S.C.§1441(a) Removal

§ 1441.  Removal of civil actions

(a) Generally. Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending

• Removal moves the case to the federal district court in which the state court is located. 1441(a).

• Basis for removal. 1441(b). FQJ: If P could have brought in federal court or Diversity: If P could have brought in federal court, but no removal if any D is a

citizen of the forum state• 1441 (b) (2) A civil action otherwise removable solely on the basis of the

jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

• Removal requires agreement of all Ds. 

PERSONAL JURISDICTION

Attack Plan1. Does the state’s long arm statute permit the exercise of personal jurisdiction? (Gibbons

held no)2. If yes, is that assertion of jurisdiction consistent with the due process clause?

(International Shoe Analysis)3. Is venue proper?4. Convenience factors? Forum non-convenience

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Personal Jurisdiction: Does the state or federal court have power to enter a binding judgment on defendant(s) that is entitled to full faith and credit in all jurisdictions?

Source of law: Due Process Clause Rule 12 (b) (2), may be waived

Forum state must have POWER or CONSENT over Δ

Power – International Shoe “minimum contacts” standardminimum contacts between the defendant and the forum such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.

general jurisdiction – continuous and substantial/systematic contacts - Domicile; place of incorporation, nerve center –– power over related and unrelated claims

presence in the forum state – both power and notice by personally serving Δ in the forum state; PJ over claims both related and unrelated to Δ’s presence; presence must be voluntary and not induced by fraud

consent express consent waiver – Δ appears and does not challenge jurisdiction prelitigation agreement

consent to jurisdiction clause forum selection clause

specific jurisdiction – single and isolated, or continuous but unsubstantial contacts – specific jurisdiction – claim has to be related to Δ’s contact with the forum state purposeful availment of the legal or material benefits of the forum state

unilateral activity of the π is not enough Did initiate action in forum state? Did derive benefits from forum state

Mullane "Real consent"

Carnival Cruise, etc.

ShafferShoe

Shoe, Shaffer

& Burnham

Over PropertyOver Persons

(and corporations)

NoticeConsentPower

Personal Jurisdiction

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Placing a product into the stream of commerce is not enough to establish purposeful availment

property is a contact that may give rise to specific jurisdiction over related claims

choice of law is evidence for contact action performed elsewhere, but effect significantly felt and directed towards

the forum state (the libelous statement in the newspaper here π lived) “passive” internet site – not purposeful availment , no targeting for commerce reasonably anticipate being haled into court there

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287 (U.S. 1980)

Factors to consider the burden on the defendant to defend the suit in the chosen forum; the extent of conflict with the sovereignty of the defendant's state; the forum state's interest in the dispute; the most efficient forum for judicial resolution of the dispute; the importance of the chosen forum to the plaintiff's interest in

convenient and effective relief;

Give NOTICE Notice is also due - Due Process Clause Mullane test

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied.

fact specific, fact sensitive test actual notice should be the goal of the statute, but is not required “all circumstances” refers to whether it is possible to notify , and the expense that

it would take to notify . giving notice is duty

Rule 4 What happens if a defendant ignores a request for a waiver of service of process?

(costs and fee and must answer within 21 days) What advantage (besides cost savings) does defendant get by waiving service of

process? (No sanctions and longer time to respond – 60 days) How does plaintiff notify defendant if she fails to waive service? (By personal

service in compliance with Rule 4) Suppose defendant claims lack of personal jurisdiction. Waiver of the objection if

waive service of process? (Waiver of service does not waive person jurisdiction objections)

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Long-Arm Statutes

• CA CCP 410.10: A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States. (Equal in scope to the 14th Amendment)

• FLA 48.193(2): “Engaged in susbstantial and not isolated activity within the State whether or not the claim arises from that activity…” (Lesser in scope than the 14 th

Amendment)

Forum Non-Convenience

If motion granted, Δ has to agree to waive statute of limitation defence

• moves to dismiss by making forum non conveniens argument

a. When do you use FNC?(1) When parties are going from a federal to a foreign forum(2) When using 1404, you’re arguing that suit should be heard

somewhere else in the interests of justice.

b. Rebuttable presumption of control—while there is a strong presumption that should be in control of lawsuit, FNC protects . Presumption against disturbing choice of forum is rebuttable is on balance of interests can show that there is a better forum. In Piper, presumption of control is diluted in this case b/c is a foreigner for purposes of the suit.

c. Private factors to consider:(1) convenience(2) convenience— here OK, b/c foreign citizen under §1332(3) access to proof

(a) accident in Scotland(b) witnesses in Scotland

d. Public factors to consider:(1) Is there foreign law available to govern the dispute?

(a) opposes transfer to Scottish forum b/c result will be unfavorable under Scottish law—limits who can bring wrongful death actions, limits basis for liability, limits scope of damages, and does not permit litigation on a contingency fee basis.

(b) As long as there is a procedural remedy in place, its relative inefficiency to US law does not matter. Bright line test = if

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there is a foreign remedy, US will allow it. Courts do not want to get into the business of evaluating the efficiency of foreign law and trying to understand and implement it in US.

(2) Docket control—consideration of whether federal courts are overloaded at the time.

(3) Jury concerns (i.e., evidentiary concerns, jury may need to see the accident site).

(4) Fact specific questions—does the action involve local issues and local sentiment?

Venue

• Intended to localize the action in the most convenient district court with the State. E.g. in CA, Central, Northern or Eastern District

• A separate concern from subject matter jurisdiction (12(b)(1) and personal jurisdiction (12(b)(2)). Venue is 12(b)(3). And, by the way, a motion to dismiss for improper service is 12(b)(5)

• The venue statute: 1391(b) (venue in general)

• A civil action may be brought in –

• (b)(1): A judicial district in which any defendant resides, if all defendants are residents of the State in which the District is located

• (b)(2): A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred …

• (b)(3): If there is no district in which an action may be brought…any judicial district in which any defendant is subject to the court’s personal jurisdiction…

28 U.S.C. 1391(c): Residency

• Individual: (c)(1) - The district where domiciled (Permanent resident aliens are treated as citizens – not true for diversity)

• Corporation: (c)(2)

– Defendant: Any district in which subject to personal jurisdiction

– Plaintiff: The district of principal place of business (Hertz)

• Non-resident of U.S.: (c)(3) – any district (includes undocumented regardless time of residency and how long

DISCOVERY

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• Required disclosures, relevant or not, e.g. 26(a)(1)(A) – required production, including insurance

• 26(b)(1) – the discovery relevance standard• 26(b)(2)(C) – relevant discovery barred in certain cases• 26(c) – protective orders• 26(g) – prohibiting abusive discovery (cf. Rule 11)• 37(a) – motion to compel including fees if opposing party not “substantially justified in

refusing to disclose” 37(a)(5)(ii)• 37(b) and (c) – sanctions including dismissal• General characteristics:

• Initiated by parties; judge intervenes only in case of dispute, exercising broad discretion

• Generally confined to information that is a) “relevant” to a claim or defense; b) not work product; c) not privileged; and d) not oppressive or embarrassing

• Stages of discovery• Mandatory disclosure – matters that parties may use to support their own claim or

defense (Rule 26(a))• Each party requests further information from other as to other matters relevant to

claims and defenses• Third stage—by leave of court for good cause shown

Discovery and Relevance:Rule 26(b)(1)

(b)(1): Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

“For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”

(b)(2) By order, court may. . . limit [if] unreasonable

Rule 26(c)

(c) Protective Orders. Upon motion . . . the court in which the action is pending or alternatively, on matters relating to a deposition, the court . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:   (1) that the disclosure or discovery not be had;

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   (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place; . . .

Work Product: FRCP 26(b)(3)

“Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent)” but

(ii) “substantial need”

The work product doctrine is not intended to a shield for hiding underlying facts necessary to resolve the litigation.   Rather, the doctrine is intended to protect the thoughts, strategy and ideas of those involved in a party’s prosecution or defense of a lawsuit.   In essence then the inquiry is two-fold: 

o Is the document prepared in “anticipation of litigation” and even if it is

o does it involve more than the underlying facts of the litigation.  

Stage 1: Initial Mandatory Disclosures FRCP 26(a)(1)

(i) and (ii): Names and documents “may use to support its claims or defenses, unless the use would be solely for impeachment”

(iii): Computations

(iv): Insurance

Stage 2: Discovery

• Documents (FRCP 34 and 35)

• Interrogatories

Rule 33 Interrogatories to Parties (a) Availability: Without leave of court or written stipulation, any party may serve upon any other party written interrogatories, not exceeding 25 in number . . .

Depositions

Stage 3: Discovery

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• Any additional discovery must be ordered by the court

• Rule 37(a)(2)

• (a) Motion for Order Compelling Disclosure or Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows:. . .   (2) Motion.       (A) If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. . . .

•

• Rule 37(c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit.

• (1) A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition . . . the court. . . may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused

• by the failure, these sanctions may … include informing the jury of the failure to make the disclosure.

SUMMARY JUDGEMENT

FRCP %^

A party may move for summary judgment, identifying each claim or defense—or part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to summary judgment as a matter of law

56: Motion for Summary Judgment

Are material facts disputed or is there “no genuine issue of material fact”?; and Do undisputed facts state a claim and if not is the moving party “entitled to judgment as a

matter of law”?

The movant bears the initial burden to show there is no triable issue of fact.   If, however, the non-movant bears the burden of proof at trial on the issue around which the movant seeks summary judgment, the burden of proof on the motion shifts to the non-movant to demonstrate that there is a triable issue of fact.   To meet its burden, the non-movant must present sufficient,

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specific evidence that a triable issue of fact exists.   The sufficiency of the non-movant’s response may be dependent on the strength of the evidence presented by the movant

Attack Plan

Joinder and Jurisdiction: The Whole Picture and Two Critical Questions

• Q. 1: Do the joinder rules permit joinder of the claim(s) or party or parties? • --NO, that’s the end

• Yes, then↓• Q. 2: Does the district court have original jurisdiction (1331 and 1332) or supplemental

jurisdiction (1367)?• If yes↓• Q3. Personal jurisdiction under the state long-arm statute• And• Q$ Personal Jurisdiction under Dues Process - IS analysis• ↓forum non-convenience• venue