CIVIL PROCEDURE I. INTRODUCTION Requirements for Valid Final Judgment VFJ

1. Personal Jurisdiction2. Notice3. Subject Matter Jurisdiction4. Venue* It is only after VFJ, then the judgment can be enforced.

II. PERSONAL JURISDICTION 1) Form of Jurisdiction

1. In Personum: The Court serves the D in a case involving personal rights2. In Rem: Sues for a piece of property to establish ownership rights of the property against3. Quasi In Rem: Assertion of rights to a piece of property against a certain specified person.

**Collateral Attack; challenge default judgment in another state based upon personal jurisdiction**

2) Traditional Personal Jurisdiction

CASE AUTHORITY:

Pennoyer v. NeffFACTS: M sued N for unpaid legal fees in OR. N was not a state resident but had land that was attached. Default judgment for M, N’s land was sold to P and M collected proceeds. N sued P to establish rightful ownership of the land.RULE: A state has personal jurisdiction over an out of state resident if one of the following is met:

(1) the D shows up in court;(2) the D is personally served in the state(3) D has in state property that is attached at the outset of the suit(4) the case affected the personal status of the resident(5) D has contractually consented to an alternative service;(6) D has appointed an in state service agent.

2) Modern Framework

ANALYTICAL FRAMEWORK: PERSONAL JURISDICTION Preliminary Considerations:

1. Answer the question that is asked." (ALWAYS!) 2. If the question is (or implicates) whether there is personal jurisdiction over the defendants , answer it based on the (relevant) information provided. 3. BE METHODICAL (ALWAYS!)

**IMPORTANT: If there are multiple defendants, analyze whether there is personal jurisdiction over each defendant independent of whether there is persona}jurisdiction over the other(s). Step 1: Review {in your mind} the possible alternative bases for personal jurisdiction? ls there jurisdiction over the defendant based on consent, domicile, or (in the case of individuals) transient jurisdiction? if not, it’s likely that the only possible basis is long-arm jurisdiction. [Long-Arm Jurisdiction Analytical Framework:]Step 2: Does the forum state’s longarm statute apply? Compare the language of the long-arm statute, provision by provision, against the provided {pertaining to the particular defendant at issue) and determine whether each provision can fairly be "read on" the circumstances described in the problem. If any of the various statutory categories is satisfied, the statute applies. But even after you conclude that one of the categories is satisfied, you should stilt continue to make a determination regarding the applicability of each category.

a. if the long—arm statute applies, you must now consider whether the exercise of jurisdiction would be constitutional (Step 3}. b. If you conclude that the long-arm statute doesn’t apply, you should nonetheless (both in real life and on exams) consider whether the exercise would be constitutional (Step 3).

Step 3: Would the exercise of jurisdiction over the defendant under the circumstances described be constitutional?

Step 3a ("Power”):(1) Identify (list) and analyze the significance ("nature and quality") of the (non—resident) defendant's contacts with the forum state. Consider, inter alia:

--- Magnitude, duration, continuity, scope, etc. — Is there evidence of "purposeful availment"? — Based on the defendant's forum state contacts, was there (”the right kind of”) foreseeability?

IMPORTANT: Come to (and state) a concision as to whether the "Power"” prong is satisfied.

Step 3b ("Reasonableness"): Analyze each of the five reasonableness factors. What is the nature (characterize it) and the significance of:

1.Burden on the defendant2.Plaintiffs interest in obtaining convenient and effective relief3.Forum state’s interest in adjudicating the dispute — 4.Interstate judicial system's interest in obtaining the most efficient resolution of controversies —

5.Shared interest of the several States in furthering fundamental substantive social policies

IMPORTANT:: Come to (and state) a conclusion as to whether, notwithstanding your concision as to ”Power”, the exercise would be reasonable. (Remember: as a general matter, no one factor is determinative, nor do we add up and compare how many do/don’t favor the defendant.) Step 4: Come to (and state} a your ultimate) conclusion as to whether there are or are not "minimum contacts", i.e., whether the exercise would be constitutional. Your concision should make plain your understanding of the relationship between the “power” and "reasonableness" prongs (i.e., remember that even where the "Power” prong is satisfied, there will be no jurisdiction where the exercise would be unreasonable (see Asahi), but that all of the reasonableness in the world cannot make up for a lack of (purposeful) contacts between the defendant and the forum state, or {short of a corporate general jurisdiction long-arm situation) compensate for an utter lack of relationship between the contacts and the claim sued on), REALLY REALLY IMPORTANT: Throughout, you should draw on the various cases we've read and discussed, analogizing to ("This case is like Burger King, because. . .”) and distinguishing from ("This is unlike the situation in Asahi, where . . . ”), to the extent that they bear on the analysis. Such comparisons and contrasts (if/to the extent they are correctly and capably done) will powerfully enhance the persuasiveness of your analysis or argument. P.S.- Make sure, if there are multiple defendants, that you have dealt with them P.P.S. - When you believe you are finished, go back and re-'read the "call of the question", to make sure you have answered the question(s) that asked! Can the court exercise jurisdiction?

i. Long-arm met?ii. Due process satisfied?

1. Power or conducti. ID and calculate the significance of D’s contacts with the forum state.ii. Foreseeability is a part of the analysis, but need to focus on the right kind.iii. Purposeful availment.iv. Relationship between the contacts and the claim. – Nexus between

contacts and claim. 2. 5 Reasonableness factors. i. Burden on Defendant to litigate in forum state ii. Plaintiff’s interests in obtaining convenient and effective relief. iii. Forum state’s interest in deciding the case. iv. Interstate judicial systems interest in efficiency v. The shared interests of the states in furthering substantive social policy.

Bases for personal jurisdiction – Only need one

1. Domicile2. Consent – Implied (Hess), Express (appointment of an agent for service of process), Waiver (you have a period of time to raise an objection and if that time period passed, you waive it.)3. Specific Jurisdiction - The claim arises out of the defendant’s activities in the forum state. International Shoe is an example. If the minimum contacts are met, the claim must arise out of that conduct. P MUST SHOW THAT:

1. Claim arises from D’s conduct, which fits the language of the state’s long arm statute. 2. The exercise of jurisdiction by the court over the nonresident does not offend the due process clause of the 14th amendment. Some states limit the long arm statute in their states to lower caseloads or be more business-friendly to attract businesses to that state.

4. General Jurisdiction - P’s claim do not have to arise from the activities of the D in the forum state. Test for general jurisdiction states that the nonresident’s contacts with the forum state must be continuous and systematic. There is general jurisdiction over domiciliaries.

A. Development of Minimum Contacts and Purposeful Availment CASE AUTHORITY:

International ShoeFACTS: Shoe was incorporated in DE but had offices but had offices in MO. The company had 13 sales people who lived in WA but filled no orders in WA and conducted no formal business in WA. WA sued in WA but filled no orders in WA and conducted no formal business. WA sued in WA for unemployment tax for 13 employees. RULE: The state will have jurisdiction over D when the claim arises out of D’s minimum contacts w/ the forum and this exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

A. General Jurisdiction - is established when a corporation or person has continuous and systematic business dealing within the state. B. Specific Jurisdiction - established when a corporation or person has single or isolated activities within the state AND the suit is directly related to those activities.

- The contacts within the state must be purposeful. The D must have purposefully availed itself to the jurisdiction of the state’s courts.

C. No jurisdiction exists when the corporation or person has single or isolated activities within the state and the suit is unrelated to those activities.

ShafferFACTS: P sues current and former directors of Greyhound, all of whom owned stock or options in the company. There was no showing that the D’s had any contacts with the state outside of their relationship to Greyhound, which was incorporated in Delaware. The court seized the stock of the D’s in order to assert (in rem) jurisdiction over the D’s.RULE: In order to justify an exercise of in rem jurisdiction, the basis of jurisdiction must be sufficient to justify exercising “jurisdiction over the interest of persons a thing”. The presence of property in a State may allow jurisdiction by providing contacts among the forum State, the defendant, and the litigation; for example, when claims to the property itself are the source of the underlying controversy.

■ Shaffer’s case fails for lack of a nexus. If there is no nexus, you must show that there are enough contacts for general jurisdiction. Where, as in this case, the property serving as the basis for jurisdiction is completely unrelated to the plaintiff’s cause of action, the presence of the property alone, i.e., absent other ties among the defendant, the State, and the litigation, would not support the State’s jurisdiction. The state’s long-arm statute violated the due process clause of the 14th amendment. The claim had nothing to do with the stocks in Delaware and that’s why it was thrown out.

B. Stream of Commerce and Minimum Contacts GENERAL RULE: The injection of a product into the stream of commerce, without more, does not an act of a D that is purposefully directed toward a state. Simple injection of a product into the stream of commerce does not create a basis for jurisdiction.

○ However, if the sale of a product is not an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly the market for its product in other states, it is no unreasonable to subject it to suit in one of those states.

CASE AUTHORITY:

World Wide Volkswagen FACTS: P bought an Audi in New York from D. P’s filed a product liability suit in OK against D’s after an accident in OK. D’s have no contacts in OK other than people like P who drive through the state. RULE: Although it was foreseeable that one of their cars could be involved in an accident in Oklahoma, foreseeability alone is not sufficient for personal jurisdiction under the Due Process Clause.

■ The degree of foreseeability that must exist is not the mere likelihood that a product will find its way into the state, but that the defendant’s conduct and connection with the state are such that he should reasonably anticipate being haled into court there.

■ The court held that there was a total absence of circumstances that are necessary to permit an exercise of personal jurisdiction.

■ The defendants did not solicit business in Oklahoma through salespersons or advertising reasonably calculated to reach the state.

Helicopteros

FACTS: Plaintiff sued a Colombian corporation in Texas for wrongful death caused by a helicopter crash in Peru. The only contacts defendants had with Texas were purchases of helicopters and a negotiation session to hire the Plaintiff’s decedents.RULE: Purchases are not sufficient contacts to give a state jurisdiction over a nonresident defendant in an action that is unrelated to the purchase.

Goodyear

FACTS: The families of two North Carolina teenagers killed in a bus crash in France brought suit in North Carolina state court, alleging faulty tires. The tires were made in Turkey, and the plaintiffs sued Goodyear's Luxembourg affiliate and its branches in Turkey and France. A North Carolina appeals court held that the foreign defendants had sufficient contacts in the state to support general personal jurisdiction.RULE: Weakened connections to the State do not constitute “the continuous and systematic” contacts necessary to allow North Carolina to file suit against them on claims unrelated to anything that connects them to the State. Petitioners are “separate corporate entities ... not directly responsible for the presence in North Carolina of tires that they had manufactured”. Even regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales.

■ The act and the injury both occurred outside the forum state.● N.C.’s log-arm is insufficient and like Volkswagen the injury, case

and forum are unrelated.● Just because a Goodyear subsidiary does business in N.C and

another in France and another in Turkey all under the same parent, does not mean there is jurisdiction over them in a state where separate business is conducted.

McIntyre

FACTS: An accident severed four fingers off the right hand of Robert Nicastro who was operating a recycling machine used to cut metal. A British company manufactured the machine and sold it through its exclusive U.S. distributor. Nicastro sued McIntyre , the British company, and its U.S. distributor, McIntyre

Machinery America, Ltd., in New Jersey state court for product liability.RULE: A court may not exercise jurisdiction over a defendant that has not purposefully availed itself of doing business in the jurisdiction or placed goods in the stream of commerce in the expectation they would be purchased in the jurisdiction.

1. McIntyre did not intend to submit itself to NJ state court jurisdiction merely by selling its product on an international market to a NJ company.2. A consumer is UNABLE to sue a foreign manufacturer in state court over a product that the foreign company marketed and sold in the US.

C. Fair Play and Substantial Justice Test CASE AUTHORITY:

AsahiFACTS: Shin was sued in a product liability case in CA. Shin joined Asahi to the suit for indemnification. Shin settled out of court with D. The only issue remaining in the court was indemnification of Ashai to Shin. Asahi does no business in the US and may or may not have been aware that its products were being used in the U.S. RULE: The placement of a product into the stream of commerce, without more, is not an act of the defendant purposely directed towards the forum state. A defendant’s awareness that the stream of commerce may or will sweep the product into the forum state does not convert the mere act of placing the product into the stream into an ace purposely directed towards the forum state.

■ A court must consider three things when exercising jurisdiction: (1) burden on the D, (2) the interests of the forum state, and (3) the plaintiff’s interest in relief.

■ RATIONALE: The unique burdens placed on D in this case, defending themselves in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders. In this case, the interests of P and the forum state are slight.

Burger King

FACTS: D into a franchise contract with Burger King Corp.P to open a restaurant in Michigan. Burger King was incorporated in Florida and a choice of law clause in the contract indicated that Florida law was controlling. The contract allowed Rudzewicz to use Burger King’s trademarks and service marks for 20 years in Michigan. All financial obligations owed to Burger King were sent to Florida and D received training in Florida. An economic downturn led to decreased sales and Rudzewicz failed to meet his obligations under the contract.RULES: The factors the court must balance in addressing reasonableness in an analysis of personal jurisdiction are:

(1) the extent of a defendant’s purposeful interjection in the forum state;

(2) the burden on the defendant in defending in the forum;(3) the extent of conflict with the sovereignty of the defendant’s state;(4) the forum state’s interest in adjudicating the dispute;(5) the most efficient judicial resolution of the controversy;(6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and(7) the existence of an alternative forum.

D. “Aiming” and “Effects” Test CASE AUTHORITY:

CalderFACTS: National Inquirer, based in FL, prints libel about Shirley Jones. Jones lives in CA, the courses for the article were in CA, and National Enquirer’s greatest circulation was in CA. Jones sued the magazine in California courts. RULE: “CALDER EFFECTS TEST”

1. Aims - Where is conduct targeted?2. Effects - Where is conduct’s impact felt?

RATIONALE: The intentionally tortious actions, although they occurred in Florida, were expressly aimed at California. They knew that the brunt of that injury would be felt by respondent in the state in which she lives and works and in which the national enquirer has its largest circulation.

Internet Cases: CASE AUTHORITY:

Epstein v. Gray TelevisionFACTS: P was a doctor living and practicing in Texas. He moved there after living and practicing in South Carolina for 15 years. While in SC, P had faced several malpractice suits. D, Benn was a news anchor who investigated, prepared, and presented the story of the malpractice suits against P. RULE/RATIONALE: The court outlined the two methods to satisfy personal jurisdiction: (1) the D’s minimum contacts in the forum state; and (2) the due process requirements. The court found that both are satisfied.

■ Minimum Contacts. P lived in Texas but was located in SC at the time of the acts. The broadcast primarily focused on P’s activities in South Carolina, but made slight references to Texas. The majority of the sources were in SC, but evidence indicates that D interviewed P during a phone call to Texas. This alone is not enough to establish personal jurisdiction in a Texas court. The final harm factor, tips the scales in favor of exercising personal jurisdiction over D in Texas. D conducted research on Texas

law regarding the recording of telephone conversations, indicating that she sought the protection of Texas law. She sent her work to the tv station in San Antonio, effectively distributing potentially libelous information in the process. In doing so, she directly planted the seed for harm of P in Texas.

■ Due Process - The due process clause protects the D from undue burden. It is undoubted that D will be burdened by litigating the case in Texas. The forum state, however, has some interest in litigating this case because It wants to protect the integrity of its medical doctors. P would like to stay because he is always on call. D failed to provide a compelling reason to prevent the exercise of personal jurisdiction. A venue change is still possible.

HY Cite Corp. v. badbusinessbureau.com

Facts: P, a Wisconsin corporation who sells china and porcelain products under its Royal Prestige trademark. D is a limited liability company, organized and existing under the laws of St. Kits/Nevis, West Indies. They do not own any assets or have any offices or employees in Wisconsin. The website operates as a forum for consumer complaints about various businesses. No Wisconsin has purchased ad space on the site; one resident has purchased a book offered on the website; they have not received any donations from Wisconsin and they have not organized any class action suits in the state of Wisconsin. P brought suit, contending that by operating the website, D has engaged in unfair competition, false advertising, disparagement and trademark infringement in violation of state and federal law RULE: To exercise specific jurisdiction, a court must find that the D has purposely established minimum contacts with the forum state and that the cause of action arises out of those contacts. The only concrete contacts the D has with Wisconsin is the single book sale. All other contacts with the state are considered potential contacts and are not enough to exert specific jurisdiction over the defendant. Even assuming the one book sale was sufficient by itself, the P would have to show that there was a NEXUS between the sale and cause of action.

E. “Tag” Jurisdiction CASE AUTHORITY:

BurnhamFACTS: Burnham and his wife were a married couple living in New Jersey. Mr. Burnham filed for divorce in NJ court citing desertion, but did not attempt to serve his wife. Ms. Burnham moved to California, with their children, and

filed for divorce in California state court the next year. Later that year, when Mr. Burnham was visiting his children in California, he was served with court papers.RULE: A state can gain personal jurisdiction over a nonresident who was personally served with process while temporarily in the state, even if his purpose for being in the state is unrelated to the matter before the court. It is an established principle that States have jurisdiction over persons physically present in the State. Service of process on a party physically present in a state is not a violation of due process. The purpose for the party’s presence within the state is of no concern as long as his presence was voluntary. Tag service is GENERAL Jurisdiction.

■ Due Process requires analysis to determine whether “traditional notions of fair play and substantial justice” have been offended. Tag has always been an effective method of service on defendants, so the Court was reluctant to disallow the method.

F. Consent CASE AUTHORITY:

Carnival Cruise LinesFACTS: Shutes went on a cruise and one of them was harmed. They attempted to sue in their home state, but Carnival contested jurisdiction due to a forum selection clause that limited the forum to FL.RULE: Forum Selection Clause

Continuous and systematic behavior

Isolated

Claim arises from defendant’s forum state activities/contacts

International Shoe (Yes), Burger King (Yes),

Hess (Yes), Calder (Yes), McGee (Yes)

Claim doesn’t arise from defendants activity in forum state.

Shaffer (No), Hanson (No),

-------------------------------------------------------------------------------------------------- III. NOTICE (RULE 4)“perfect personal jurisdiction” 1) Constitutional Requirement

5 ways to serve under Rule 4 =1. Personal2. Leave copy at dwelling or usual place of abode with person of suitable age/discretion3. Authorized agent4. By following any state law where district court (ie if the court is in NY) is located OR5. Following state law where party is served. (Ct may be in NY but serving in PA)

*NOTE: there is much greater detail in state laws for serving. NO HIERARCHY. CASE AUTHORITY:

Mullane v. Central Hanover Bank & Trust Co. (1950)FACTS: Mullane (P) is the beneficiary of a trust by D bank. D brings a suit to surrogate ct on financial matter (of consolidating trustee or something, I’m not sure). D sent a notice to non-resident P by means of publication in a local newspaper. P appeared specially and objects that notice and statutory provisions (NY Banking Laws) for notice is not adequate and violates due process right he has.RULE: Due process requires that notice should be reasonably calculated that it gives the individual an opportunity to choose whether to appear/default or acquiesce/contest. The notice must be (1) reasonably calculated; (2) apprise interested parties of action; (3) give the served party a chance to present objections; (4) reasonably convey required information; and (5) afford the party reasonable time to make an appearanceRATIONALE: Constructive notice by publication was acceptable with regard to missing or unknown parties or for those whose whereabouts could not be ascertained by due diligence or for whom future interests were too conjectural to be known with certainty

Larsen - Statute of Limitations (8th Circuit Case NOT SCOTUS) FACTS: P contracted an illness from medication administered to her during her hospitalization at D. The two-year statute of limitations on filing a medical malpractice suit commenced on July 24, 1996. P filed her complaint against D on May 29, 1998 alleging medical malpractice. On two occasions, June 1, and June 22, 1998 she attempted to serve D through mail. D’s attorney, on both occasions, refused to execute the acknowledge of service form and refused to assist P in any way in suing his client. On September 4, 1998 P mailed copies of the summons to the Sheriff’s department, who received the materials on September 8 and served the defendant on September 9. The district court granted D’s motion for summary judgment, in which D alleged that the service did not fall within the two-year statue of limitations. P appealed. RULE: Under the Federal Rules of Civil Procedure, if the D returns the waiver and the P files the waiver with the court, “the action shall proceed… as if a summons and complaint had been served at the time of filing the waiver.”

However, if the defendant does not waive service, service has not been effected. RATIONALE: P filed this claim in state court and attempted to serve D by mail on two occasions, but D refused to return the acknowledgment form. Because D did not waive service by returning the acknowledgment form, the requirements for service by mail were not met. D was not served until the County Sheriffs Department received a copy of the summons and complaint on September 8, 1998. This fell more than a month after the two-year limitations period expired.

Cox v. Quigley (District Court)

FACTS: Growing up, D lived with his family in Ithaca, NY. He attended college and graduated in the spring of 1987. In the fall of 1987, he obtained a position with the Military Sealift Command and went to sea. In May, 1988, he notified his employer that he was changing his address to Florida, specifically to Port Richie, his grandparents’ address. He registered to vote in Florida and filed his federal income tax reforms in Florida. RULE: The court considered the defendant to be a transient individual. For such defendants, service is unavailable; personal service may be a P’s only option then, no matter how difficult. FRCP 4(e)(2) is designed to provide Ps an alternative method to serve a D who is avoiding personal service. Its permission for service at a dwelling house or usual place of abode is probable based on the assumption that these are usually not quickly or easily moved. This conclusion may mean it will be difficult for Ps to serve highly mobile or transient defendants. But ease of service cannot displace the need to find a method that will reasonably assure timely notice of the lawsuit.Rationale: It was P’s burden of proof to prove that D lived at the Ithaca address in order to serve him there. Since she was unable to and the court found D to be transient, service pursuant to Rule (4)(e)(2) was invalid and improper. Default judgment vacated.

2) Statutory

**All notice must be authorized by state statute and the Constitution. 3) Immunity

● Immunity to service in certain circumstances = witnesses, lawyers, litigants who enter into the state to participate in one suit may be immune from process concerning another suit. Some states prohibit on Sundays.

4) More Rule 4

○ 4d = If the statute says service is required to satisfy the statute of limitations, waiving service wont be good enough! WAIVER IS NOT A SERVICE METHOD. The defense that the statute of limitations has run is a completely

waivable defense. It is the defendant’s responsibility to object if the statute of limitations has expired.

○ 4h = Service of process on corporations: must be made to a managing/general agent, or any agent authorized by appointment or by law to receive service of process.

○ 4k = Fed Ct has jurisdiction where state in which district ct sits would have jurisdiction.

---------------------------------------------------------------------------------------------------------------------------- IV. SUBJECT MATTER JURISDICTION (1331, 1332, 1367)**The power of the court over the subject matter of a lawsuit.

1) Federal Questionsi. Article III permits federal courts to hear any case in which a federal claim is raised even as a defense.ii. Statutory interpretations of 1331 require that a case present a federal question on its face through a well-pleaded complaint (defense based on federal question is not sufficient)

*Admiralty, Bankruptcy, Patent, Copyright, Antitrust, Securities (“handful”)

2) Diversity Jurisdictioni. Article III permits federal jurisdiction where any one person on either side of the suit lived in a state that no one from the other side if the suit lived. Article III permits representative actions in diversity suits. Article III permits congress to allow diversity claims with one citizen and one alien against another alien.

3) Supplemental Jurisdictioni. Article III grants federal jurisdiction over claims that are closely connected to claims that satisfy federal diversity or question jurisdiction. The basis for this is “case or controversy”.

1) FEDERAL QUESTION JURISDICTION - 28 USC §1331

● General Federal Question Statute: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the US”

■ Two prongs in order for §1331 to apply: ● (1) Federal question must appear on P’s well-pleaded complaint.

The federal question must be part of the essential allegations in the plaintiff’s claim; and

● (2) Deals with the nature of the claim. Assuming that federal law is the ingredient of the essential element of the P’s claim, we then have to go on and have an additional examination of it.

○ Prong 2 - There are three types of claims:■ (1) pure state law claims (Mottley’s, breach of

contract) (THIS WILL NEVER BE IN FEDERAL COURT)

■ (2) Federal claims (statutory claims created by congress)

■ (3) State law claims with an essential federal ingredient. You have to apply Grabel to see if the federal question satisfies § 1331.

1. The Well-Pleaded Complaint Rule CASE AUTHORITY: Mottley Crue

FACTS: Mottley and his wife (P) were injured while riding a train on the Louisville & Nashville Railroad (D) in 1871. Mottley agreed to release claims for damages against the railroad in exchange for a contract that granted them free transportation for life. The railroad refused to renew the Mottleys’ pass in 1907 because an act of Congress forbade the giving of free passes or free transportation. Mottley sued in federal court. Diversity jurisdiction was unavailable because Mottley was domiciled in Kentucky and the railroad was incorporated in Kentucky. Mottley contended that Louisville & Nashville Railroad would raise a constitutional defense in its answer thereby creating federal subject matter jurisdiction. RULE: Anticipating that a defendant will raise a defense that includes a federal question is not sufficient to claim subject matter jurisdiction. There was no diversity of citizenship and the only way to maintain this suit would be if it arose under the Constitution or laws of the United States. The court held that the mere allegation that a defendant will raise a federal question in his answer is not sufficient to create jurisdiction. Mottley’s complaint was based on a contract claim and did not raise a federal question.

2. Centrality of Federal Issue to the ClaimWhether the federal issues set forth in the complaint are CENTRAL ENOUGH to the dispute. CASE AUTHORITY: Grable - State Law Claims with an Essential Federal Element

FACTS: The IRS seized property belonging to P and sold it to D. P did notexercise its statutory right to redeem the property within 180 days of the sale, and after that time passed, the government gave D the deed. Five years later, P brought a quiet title action in state court, claiming that D’s record title was invalid because the IRS had failed to notify P of its seizure of property in the exact manner required by § 6335(a) which provides that written notice must be “given

by the secretary to the owner of the property or left at his usual place of abode or business.” P claimed the statute required personal service, not service by certified mail. RULE: D was entitled to remove the quiet title action if P could have brought it in federal district court originally as a civil action with a federal question. The federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues. The federal issue will ultimately qualify for a federal forum ONLY if federal jurisdiction is consistent with congressional judgment about the sound division of labor between state and federal courts governing § 1331.

■ GRABLE TEST: (1) necessarily raise a federal issue as an essential element of the claim, (2) that claim is actually disputed, (3) the claim is substantial, (4) which a federal forum may entertain without violating a congressional statute/prevent the floodgate of litigation.

*FEDERAL QUESTION JURISDICTION DOES NOT HAVE THE $75,000 LIMIT! 2) DIVERSITY 28 USC § 1332 i. Complete Diversity Rule:

● Diversity jurisdiction only exists if all D’s in suit are from a different state than all P’s in a suit. (All parties on both sides must be citizens of different states).

○ Exception = minimal diversity; some fed courts have allowed diversity jurisdiction when authorized by an Act.

ii. Determining Citizenship of Individuals

● Citizenship means domicile. Domicile requires (citizen of US) ○ (1) taking up a residence; ○ (2) intent to remain there [physical and mental].

● You can only have one domicile at a time. If you are a student, your domicile is still your home.

● Diversity/jurisdiction is determined AT THE TIME THE COMPLAINT WAS FILED. CASE AUTHORITY:

LundquistFACTS: P sued Ds to recover on promissory notes relating to the sale of stock in airline stock by P to Ds. P’s claim alleges federal jurisdiction on the basis of diversity of citizenship under 28 § 1332. The complaint did not allege

citizenship, but stated that P lived in Massachusetts. Ds filed a motion to dismiss for lack of subject matter jurisdiction on the ground that the complete diversity of citizenship did not exist. Ds were a New Hampshire company and they alleged that P was also a citizen of NH. Ds believe that P was a citizenship of NH because: (1) P owned real property and paid taxes on it in NH, (2) P maintained a functioning telephone in NH, (3) P had a NH driver’s license, (4) P was registered to vote in NH from 1976-90, and (5) P owned and operated a business in NH. P tried to assert citizenship in Florida because: (1) He purchased real property in Florida and moved there, (2) Since 1984, P had maintained several Florida bank accounts, (3) P had a Florida driver’s license, (4) P’s wife ran a horse farm in Florida, (5) P and his wife were members of social groups in Florida, (6) P summered in NH and (7) all of P’s personal belongings were in Florida.RULE: Citizenship in a state is the equivalent of domicile. Where a party changes domicile, “domicile at the time suit is filed is the test and jurisdiction once established is not lost by a subsequent change in citizenship.” The burden of proof is on the P to support allegations of jurisdiction with competent proof when allegations are challenged by D.

■ A party may reside in more than one state but can be domiciled, for diversity purposes, in only one. Domicile need not be determined by mere numerical comparison of the number of factors that may appear to favor each side of the issue. (COMPLETELY SUBJECTIVE)

iii. Determining Citizenship of Corporations (INC)

● §1332 c: citizenship of a corporate D; citizen of any state in which it is incorporated and also in the state where it has its principal place of business. = dual citizenship!

CASE AUTHORITY:

Hertz Corp. v. FriendFACTS: Diversity dispute.RULE: The term "principal place of business" refers to the place where a corporation's high level officers direct, control, and coordinate the corporation's activities -- in other words its "nerve center." The Court stated that in practice, the nerve center is normally the corporation's headquarters -- provided that the headquarters is the actual center of direction, control, and coordination.

iv. Non-Corporations; Partnerships

● --§1332-C does NOT apply to them.○ *Partnership itself does not have a citizenship; if you are suing - you must

determine the citizenship of EACH partner for purposes of diversity of jurisdiction (although you can sue as an entity). Each partner is jointly and severally liable.

v. Determining Citizenship of Non-Incorporated Businesses1. Limited liability companies are citizens of every state of which any member is a citizen. 2. P's state of incorporation is Ill and some of D’s members were also citizens of Ill. Therefore no complete diversity.

CASE AUTHORITY:

Zambelli Fireworks (3rd Circuit) Every Circuit has adopted this rule, but not SCOTUSFACTS: Zambelli is one of the largest firework companies in the United States. It hired Wood who was a pyro technician and choreographer in Florida to work for them and largely considered him to be the future of the company. When he signed to work with Zambelli in 2001, he signed a contract that contained a non-compete clause. In 2005, the company asked wood to sign another agreement that would ensure his continued commitment to the company. In 2007, Zambelli sold a major portion of its stock, thus no longer rendering them the majority owners, at which time Wood contacted Stephen Vitale, Pyrotecnico’s manager about employment. Pyrotecnico was the competitor of Zambelli and Wood began working for them in 2008. Zambelli brought suit against Wood and Pyrotecnico to enforce the terms of the no compete clause contained in the signed agreement by wood. RULE: The citizenship of an LLC is determined by the citizenship of its members and as with partnerships, where an LLC has, as one of its members, another LLC, “the citizenship of unincorporated associations must be traced through however many layers of partners or members there may be” to determine the citizenship of the LLC. LLC should be treated as a partnership for citizenship purposes.

vi. Domestic Relations/Probate Exception

● Fed ct will not hear domestic relations (divorce, custody) cases or probate (estate) because these actions are very state-relevant and if Fed Ct heard them it would impose on state probate/state family courts.

vii. Alienage

● §1332 applies not only to U.S citizens, but as allows federal courts to exercise jurisdiction over cases involving CITIZENS or SUBJECTS of foreign nations.

● The reason for this is state courts may favor their own citizens in suits between them and foreign citizens.

● You cannot be a citizen of a state unless you are a citizen of the United States.● Dual Citizenship-

○ The U.S does not recognize dual citizenship.○ Majority rule is that the court will consider only the persons American citizenship.

● How does §1332 treat U.S citizens domiciled abroad?○ Person may not avail himself or herself of diversity jurisdiction. Because they do

not have a domicile in any state, they are not a “citizen” a state.○ However they may invoke federal question jurisdiction

viii. Time for Determining Diversity

● Diversity must be determined when the complaint is filed. ix. The Amount in Controversy

● Amt must exceed $75,000 exclusive of costs and interests. DOCKET CONTROL.● To determine whether a complaint is sufficient - standard: If it appears that the claim is

really less than P’s good faith allegation.● Only way to dismiss is to show to a LEGAL certainty that claim does not exceed that

amount.○ RARE that a diversity case is dismissed on these grounds.

● Both compensatory and punitive damages, and attorney’s are included to hit amount● Aggregation; generally two or more plaintiffs cannot aggregated their claims.

○ Exceptions:■ 1) Supplemental■ 2) If two or more hold a joint and undivided interest in property that have

an excess of $75,000 and property is involved in claim. ○ A P may aggregate claims against multiple Ds only if the total injury suffered

by P exceeds $75K and under governing law Ds can be held jointly liable for the entire injury.

● Interest; any interest that is an essential ingredient of the claim is included in the amount. However, any additional interest does not count.

3) SUPPLEMENTAL JURISDICTION 28 USC 1367

● P has federal question claim and a state law claim against a single D. Fed ct will hear such claims so long as they are under the same “case or controversy.” (same operative facts).

Two part test under §1367● §1367(a) asks whether the claim in question and another claim in the case that

the federal court can hear “form part of the same case of controversy under article III.” Confers a big ball of power on the federal courts.

● §1367(b) and §1367 (c), which asks whether, the case falls into one of the exceptions listed in these rules. Takes some power away from federal courts. (does not apply to federal questions cases or hybrid cases)

CASE AUTHORITY:

United Mines Workers v. GibbsFACTS: Respondent was employed as a mine superintendent in the Grundy Company. However, miners, who were represented by a local union affiliate of Petitioner, curb stomped Respondent after learning that Respondent had employed laborers represented by a rival union. RULE: In cases where a plaintiff has both federal and state claims against the defendant, although there may be no diversity jurisdiction, the federal court has

discretion to exercise pendent jurisdiction over the state claim based upon state law if the state-created claim and the federal claim derive from a common nucleus of operative fact, and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding.

CASE AUTHORITY:

ExxonFACTS: Class action case.RULE: As long one plaintiff meets the amount-in-controversy requirement for federal jurisdiction, Section 1367 authorizes federal courts to exercise supplemental jurisdiction over related claims even if they do not meet the requirement that to require each claim in a civil action to meet the requirement would be "inconsistent with the whole notion of supplemental jurisdiction.

--------------------------------------------------------------------------------------------------------------------- V. VENUE (1391, 1404, 1406)

Situation Can Transfer Be Proper?

On Whose Motion?

What Law Applies in transferee court

PJ Proper/ V Proper

Yes 1404 P D or Court Law of transferor forum

PJ Proper / V Improper

Yes 1406 P D or Court Transferee

PJ Improper/ V Proper

Yes 1404 P D or Court Transferee

PJ and V Improper

Yes 1406 / Goldlawr

P D or Court Transferee

● Hoffman RULE- D’s consent does not permit transfer to a forum where the lawsuit

could not have originally been brought. ● Van Dusen RULE- The same law applies after a transfer as applied prior to the change

of venue. ● CLACKSON RULE- Federal court should apply state substantive law, of the state in

which its sits. ● GOLDLAWR RULE- Cases can be transferred even if venue wasnt proper in the first

place, and even if there was no person jurisdiction over the D in the transferor court.● FERENS RULE- when plaintiff requested 1404 transfer, receiving court should apply

the law that the transferor court should have applied.

● 28 USC § 1391 General venue statute:○ a: deals with venue when action is based on diversity○ b: deals with venue when based on fed question ** (but they are exactly the

same)VENUE IS PROPER WHEN: 1. Any district where all/any D reside so long as in one state or 2. Any district where a substantial part of the claim arose (NOT MIN CONTACTS!) OR -- fallback:

3. Any D subject to PJ at time action commenced if there is not another district in which it can be brought.

IMPORTANT: USE 1 or 2 - P may choose Under §§ 1391(a)(2) and (b)(2) venue is proper in a district in which a “substantial part” of the activities took place, and there may be several districs that qualify as a situs of “substantial activities.” FOR § 1391 A AND B YOU ONLY USE 3 IF 1 OR 2 DO NOT YIELD VENUE.

● EXCEPTION = § 1391(C) Corporations: If all D’s reside in different districts in the same state, then you can lay venue in any one of the districts where any of them resides. A corporation resides in all districts where it is subject to personal jurisdiction.

--Ford is a citizen of only 2 states, but is a resident of every district in the US. CASE AUTHORITY

AstroFACTS: P and D are rivals in the life sciences equipment market. P is a Rhode Island corporation and D is based in California. In October, 2002 P hired Kevin Plant (Plant). P trained Plant in many areas and he signed an employee agreement with contained a non-compete, a trade secret clause, and a choice-of-law and forum-selection clause. Plant was transferred to Florida where he worked for several years. In 2006, Plant took a job with D. P filed suit.Holding: The court was NOT charged with finding the best venue, but merely finding the proper one. Given that a substantial part of P’s claim involve RI and proceeding in RI would not thwart the underlying purpose of the venue statute, the district court did not err in refusing to dismiss D’s claims of improper venue. Judgment affirmed. Rule/Rationale: D hired Plant with full knowledge of the employee agreement and its content, thereby interfering with P’s contract and trade secrets. Because P was headquartered in RI, this district is one of the places where the tortious acts occurred and where the harms of the torts were felt. In addition, RI was the forum selected by the employee agreement to resolve disputes.

CHANGE IN VENUE §1404 - §1406 [Transfer] §1404 = transferor court is proper venue

“Any district where the suit might have been brought” -- venue and PJ are proper. In deciding whether to transfer, the ct must apply balancing test:

(1) most convenient for the parties (2) - convenience for witnesses (3) “interest of justice”

**1404(a) Transfer - change of courtroom and NOT a change of law that is applied. law goes with the case. CASE AUTHORITY:

Six FlagsFACTS: Meteoro is the owner of a patient related to a “modularized amusement ride and training simulation device”, which contains a pod in which one or more riders sit and are restrained, and the module spins under power about a horizontal axis according to the passengers active control, and can be used in conjunction with rides like rollercoaster’s. The technology was offered to Six Flags and a few other companies for a fee in 1998, and Meteoro put a video of the device on their website in 1999 for public viewing. In December 2000 defendants announced the coming of its new ride “x” Arrow Communications, one of the companies plaintiff offered to sell technology to. The ride contains the elements of strapping passengers into a roller coaster and the vehicle is to move 360 degrees forward and backward along a central line. The plaintiff claims this is patent infringement and brought suit against the defendant RULE: N. District of NY held venue is proper in W. District of OK because that’s where most of the witnesses are and D’s HQ and should be transferred under 28 U.S.C. section 1404(a)

FORUM NON CONVENIENS

● Court dismisses because litigation would be more appropriate elsewhere (inconvenient where it is.) Dismissing because transfer is impossible. The other court is in a different judicial system (foreign). THERE MUST BE AN ALTERNATE FORUM.

CASE AUTHORITY: Piper Aircraft v. Reyno

FACTS: Plane crash in Scotland. Although PJ, SMJ, Venue were proper -- Court dismissed because the case should have been brought in Scotland.RULE: TEST = Private/Public interests:

● Private interest factors:○ relative ease of access to sources of proof○ availability of compulsory process for attendance for

witnesses

○ possibility of view of premises○ other practical problems

● Public factors:○ administrative difficulties○ local interest in having localized controversies at home○ interest in having the trial of a diversity case in a forum that

is at home the law that must govern the action○ avoidance of unnecessary problems in conflict of laws○ unfairness of burdening citizens in an unrelated forum with

jury duty.SIDE NOTE: Here, both public and private factors favored Scotland. The court declined jurisdiction.

REMOVAL JURISDICTION: 28 USC §1441, §1446, §1447

● Gives D in state court the choice to remove to federal court. P may not remove! (Even on a counterclaim.)

§1441(a) = D does not make a motion, just file a notice of removal with Federal court and attach state pleadings.

● D has burden of showing that the Federal Court would have originally had jurisdiction based on diversity or federal question. Goes to the Federal District Ct in which it originally sat (built-in venue rule).

§ 1441(b) = In-state defendant rule: In diversity, home-state defendants cannot remove the case. Federal question, anyone can remove

CASE AUTHORITY

CatepillarFACTS: Respondents filed an action based on state law alleging breach of

employment contract against Caterpillar. Caterpillar wanted to remove to federal court alleging that the employment contracts were labor law and federal questions.

RULE: Removal is authorized only where original federal jurisdiction exists, a case may not be removed to federal court on the basis of a federal defense, even if the defense is anticipated and the federal defense is the only question truly at issue.

§1446: Procedure for removal - don’t have to ask, can just remove.D has Burden of showing case is capable of being removed. Can be remanded if D improperly removed case. (Lack of SMJ or failure to follow procedure)

● §1446b = TIMING: 30 days to remove (after service on D). In diversity, you have 1 year

to remove. §1447: if P does thinks removal was improper - make a motion to remand. If another D is added that will destroy diversity, the ct may remand or deny joinder. *HYBRID case - can assert diversity OR fed question, may remove on either basis.In-state defendant rule: if you have 2 bases of jurisdiction and one is fed question, you are not bound by in-state D rule. Make sure in jurisdictional statement in your Complaint make sure you put BOTH! RULE 12 RULE 12(b) Procedural Challenges Defenses and Objections (A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or(ii) if it has timely waived service, within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or cross-claim within 21 days after being served with the pleading that states the counterclaim or cross-claim.(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

Serving a motion under Rule 12(a) alters rules:Time suspended until answer - if court denies motion the answer or response of pleading must be filed within 14 days How to Present Defenses. (Option to make a motion before you answer)Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required.But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion. 12(g)(2) Limitation on Further Motions.Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule (12) must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

12h(1)(a) If a defendant moves to dismiss under rule 12(b) the motion MUST include ALL defenses and objections then available that Rule 12 permits to be raised.

● Cannot make a second pre-answer motion raising other defense or objectionsRule 12(h) exceptions:

(2) Failure to state a claim for relief on which relief can be granted, Failure to join an indispensable party, Failure to state a legal defense to claim

○ DO NOT HAVE TO BE ASSERTED at the earliest opportunity.(3) Lack of subject matter jurisdiction Subject Matter Jurisdiction is NEVER waived.

----------------------------------------------------------------------------------------------------------------------------- VII. PLEADINGS (RULE 8) Pleadings and Motions Allowed: Rule 7 – Pleadings and Motions

○ (a) Pleadings: complaints and answers, replies to counterclaims, answer to crossclaims, third party complaints, and third party answers (if the court orders). After, pleadings are closed.

○ (b) Motions: requests made to the court for an order stating with particularity the grounds for it and the relief or order sought

(*NOTE: motion is not a pleading)

Form of Pleadings: Rule 10

○ (a) Captions - Pleading must have caption with name of ct, title of the action, file #, and a name as under 7a. Name all parties, title of other pleadings.

○ (b) State claims or defenses in numbered paragraphs.○ (c) May add exhibits

COMPLAINT: 8(a)

● Pleadings are documents filed by litigants and set forth their claims and defenses.● Purposes of pleadings:

○ Put parties on notice of claims and defenses;○ State facts each party believed it could prove;○ Narrow the number and scope of issues needing trial;○ Provide quick method for resolving meritless claims and defenses.○ Pleadings are limited to complaint, answer, and reply. (Rule 7)

E.g.UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

Jon Smith, Plaintiff ) ) ) Civil Case No. 475-799 ) Terry Black, Defendant ) Complaint must contain (Rule 8(a)):

1. Statement of grounds for jurisdiction2. Short and plain statement of the claim showing that P is entitled to relief – notice pleading – not expected to give a lot of details.3. Demand for judgment (damages, injunction) – Don’t have to ask for certain amount, can just state “demand damages in an amount to be shown at trial”

E.g.

TITLE(see above)

COMPLAINT FOR NEGLIGENCE 1. Jurisdictional grounds2. On DATE, at PLACE Defendant NEGLIGENT ACT to Plaintiff3. Due to the above negligent act, P incurred medical expenses in the amount of $$.

i. Legal sufficiency debate over specificity

● CODE v. FRCP: Code Pleading (NYS), COA in concise language, with greater specificity than COA under FRCP = 8a2 which avoids facts altogether.

CASE AUTHORITY:

TwomblyRULE: Factual and Legal Insufficiency: Increased factual specificity required not by 9, but 8a2.*Changed 8a2 pleading standard from possibility to plausibility that factual allegations could be found true by ct. D’s COA was possible, not plausible.

ii. Heightened specificity

CASE AUTHORITY:Iqbal

RULE:Court holds that identifying factual allegations against Ashcroft/Mueller were insufficient (not plausible) COA under Twombly standard.*Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Legal conclusions do not = COA.

PLEADING IN ALTERNATIVE (= Pleading inconsistent facts) (Rule 8e) CASE AUTHORITY: McCormick

FACTS:wife plead that her husband died in accident and that he was not driving negligently but in another claim, said it might also be in part to a bar serving him too much alcohol in which case he was driving negligently. Ct said this is okay under 8e2.RULE: Pleading in the alternative is permissible. P can plead inconsistent counts, when P is unsure of the facts herself. In this case, the injured party was dead, thus the true facts were not known to the P.

ANSWERDefendant has 2 basic options in responding to a complaint: 1. Bring a motion that the court order something – 12b MOTIONS:

a. Lack of subject matter jurisdiction 12(b)(1)b. Lack of personal jurisdiction 12(b)(2)c. Insufficient process 12(b)(4)d. Insufficient service of process 12(b)(5)e. Failure to state a claim (also an affirmative defense 8e)

12(b)(6)f. Improper Venue 12(b)(3)g. Failure to join a party under rule 19. 12(b)(7)

1. Rule 12b6 - motion to dismiss for failure to state a claim on which relief can be

granted. Has two functions: [Twombly; Iqbal]○ Tests the legal sufficiency of the claim○ Tests the factual sufficiency of the claim

2. Rule 12e - motion for a more definite statement – i.e. P’s pleading is so ambiguous, that an answer cannot be framed and D need not file an answer. D may instead make a motion to the court for an order directing the P to serve a more definitive statement.

○ P can also bring this motion if D’s answer had a counterclaim.3. Rule 12f - motion to strike:

○ Generally before responding to pleading but ct has power to accept it at any time.○ Serves to remove any claims from further proceedings of the case.

2. Response to P's allegations

1. Rule 8b: 3 possible responses:● Admit

○ D has the responsibility to admit certain facts that are not in dispute. So these facts don't have to go to trial.

● Deny - if you don't deny, it will be deemed as admission.○ General denial

■ "D denies each and every allegation of the complaint."■ This is rare though.

○ Specific denials■ See Rule 8b 4th/5th sentences■ Responding to each paragraph of the complaint one at a time.■ "D admits the allegation of Paragraph One. D denies the allegation

of Paragraph Two..."○ Qualified general denial

■ Just deny the ones that you need to deny.○ Argumentative denial

■ You add a contrary fact but don't specify exactly that you're denying the allegation.

■ It may be deemed an admission of the allegation.○ "Negative pregnant"○ Actual phrasing of the denial, court will take them literally.○ Okay in federal court but in some state courts, may create problem.

● Denial for Lack of Knowledge or Info (LKI)○ Rule 8b 2nd sentence: when D is without knowledge or information

sufficient to form a belief as to the truth of an averment, then her claim has the effect of a denial.

CASE AUTHORITY

King VisionRULE: Jackass demanded “strict proof” in his answer.

2. 8c1: Raise an Affirmative Defense: new matter.

■ Listed in 8c; D admits to allegation but must affirmatively state any avoidance.

● State your own claims – Similar to failure to state a claim and other defenses listed in 12b, can be raised as an affirmative defense in your answer IF you do not use it as a motion -- so that it can be included in discovery.

● [ie – self defense to COA for battery]● Assert any counterclaims: must put compulsory counterclaims in your answer. (Not

those which raise another issue) [Difference: Counterclaims – related to P liability to YOU; Affirmative defense – affect status of your liability.]

● Assert any cross-claims (against a co-party)

CASE AUTHORITY

Red Deer v. Cherokee County RULE: N.D. Iowa held that after-acquired evidence of P’s dishonesty in an employment discrimination case is an affirmative defense. New test:

● Allocation of burden of proof: If D bears burden, affirmative● Defense controverts/avoids claim: If it bars recovery even if D

admits to the allegations, affirmative● Notice: If P needs notice of the defense to avoid prejudice,

affirmative --------------------------------------------------------------------------------------------------------------------- IX. RULE 11 11A: Obligation of atty to sign anything presented to ct. 11 B: Obligations as counsel *MOST IMPORTANT.Anything submitted, presented, or advocated to court is certified to be to the best of atty’s knowledge.

1. Pleading not presented for improper purpose [to harass, delay, etc.]2. Non-Frivolous; if you want to overrule prior precedent, have a legitimate reason.3. Factual contentions have evidence OR identified as having reasonable (non-certified) belief to be true after further investigation & discovery.

[ie: in danger of running SOL limitation – flagging pleading that you don’t have info yet!]4. Denials/DKI of factual contentions are warranted on evidence.

11C: Sanctions1 – IN GENERAL: if after notice and reasonable opportunity to respond, ct determines 11(b) has been violated sanctions maybe imposed on attorneys, law firms, or parties found in violation.2 - Motion for sanctions: Made separate, describe conduct violating 11b. Must be served under Rule 5. Must not be filed w/ court if the challenged paper claim is withdrawn within 21 day “safe harbor.” – allow change any violation [remove offending paper] without any implications from the court. Not on court docket.

-DAY 22 = file motion with the court, if D does nothing. Goes on court docket.*Allows attys to self-regulate.

3 – On the court’s own initiative [sua sponte], if they have found party violated 11b.4 –Nature of sanction: sanction must be limited to deter repetition of the conduct, includes non-monetary sanctions.5 – Limitations on Monetary Sanctions: Ct must not impose a monetary sanction against A: a represented party for violating 11b2 (atty should know the law); B: on its own if there is voluntary dismissal or settlement of claims before ct orders violating party to come and show why they are not, there is no sanction applicable6 – If Ct orders sanctions, it must explain why.

11d: Violations for discovery are subject to Rules 26-37 NOT 11. CASE AUTHORITY:

Walt DisneyRULE: M.D. Florida held that sanctions were proper when P continued a civil rights claim for arrest without probable cause when P admitted in his deposition that he confessed to the officer, thereby establishing probable cause and Officer’s counsel notified P’s counsel of this by letter twice.

Christian v. MattelRULE: 9th Circuit held that the District Court did not abuse its discretion in ordering Rule 11 sanctions when P pursued copyright infringement of a later-created work against a prior-created one.

■ Sanctions must arise from the form of the pleadings, not other egregious conduct.

---------------------------------------------------------------------------------------------------------------------------- VIII. DISCOVERY (RULE 26, 30, 33, 34, 36, 37) 1. 26 General Provisions2. 30 Depositions3. 33 Interrogatory4. 34 Document Productions5. 36 Requests for Admissions6. 37 Sanctions PURPOSE OF DISCOVERY

● Preserves the evidence that might otherwise be lost before trial.● Narrows down the issues in dispute.● Permits the parties to learn information about their own and the other side.● Allows the parties to take settlements instead of going to trials.

Notice there are two kinds of information that one can seek in discovery:

● The information that the other party has in support of its claim● The information that will help strengthen your own case.

OVERVIEW OF DISCOVERY 5 basic devices for acquiring information:

1) Required initial disclosures (Rule 26a1)● Requires each party to disclose certain info without any request by another party:

○ Only information that the disclosing party may use to support its claims or defenses 26a1: 4 categories of info in Initial disclosures

2) Depositions (Rules 30)

● Witness is placed under oath and responds to questions like at trial○ Can be a very effective way to learn what an individual knows about a particular

matter but can be EXPENSIVE○ Presumptive limits: 10 depositions; 1 deposition one day of 7 hrs.○ Can change if the court orders or by the stipulation of the parties.

3) Interrogatories (Rule 33)● Send written questions that require written response under oath● Far less expensive● More effective device than deposition● Limitation – since attorney will draft a response to the interrogatories, not useful for

getting testimony or credibility of witness● Presumptive limits: 25 interrogatories but can change by the parties’ stipulation or court

order. 4) Document Production (Rule 34)

● Permits party to require another party to produce for inspection, copying, or testing all relevant documents or other tangible things

5) Requests for Admission (Rule 36)● Used to determine what issues are and are not in dispute● Narrows down issues BUT is not an effective device for acquiring detailed knowledge of

the evidence SCOPE OF DISCOVERY (ie. what is discoverable) 1) On Relevance:

Rule 26 (b)(1):● During discovery, information can be requested if a party reasonably believes that

it would lead to the discovery of admissible evidence.● The relevant information need not be admissible at trial as long as it was

reasonably calculated to find out admissible evidence. 2) Privileged materials:

● What’s considered privileged are governed by state laws.● Attorney-client privilege: - is an ABSOLUTE privilege.● What’s protected is those communication done for the purpose of giving legal advice, not

for letters with the bill.● It's the communication itself that is protected but the underlying information itself cannot

be protected and has to be disclosed when requested properly.○ i.e. protected: "what did you tell your lawyer you did last night?"○ not protected: "what did you do last night?"

● Attorney-client privilege can be easily waived if you by doing stupid things like just talking in front of a 3rd party about the client.

● Rule 26b5: the party has to describe in sufficient detail what they are privileged to

protect from discovery.

● The other party may look at it and if he finds something suspicious, he can first contact the party and try to resolve the matter btwn the two. If it doesn't work that way, then he can make a motion to compel. (See Sanctions)

CASE AUTHORITY: Coca Cola

FACTS: court orders Coca Cola to reveal its formula that's been kept top secret in the company policy.RULE: Any relevant, nonprivileged information is subject to discovery.

■ Some parties for the fear of disclosing private/confidential information (even when they have meritorious claims/defenses) will choose to take the "cheap" settlements instead of trial.

■ Parties can use discovery as a weapon to force the other for a reduced settlement.

3) Work Product: (Rule 26b3)

● Attorney-client is an absolute privilege.● Work product gives you a QUALIFIED immunity, while the attorney-client is an

absolute privilege. in other words, if properly requested, they are discoverable.● Also it's broader than communication in attorney-client relationship.● Work product immunity is limited for those products prepared in anticipation of

litigation. CASE AUTHORITY: Hickman v. Taylor

FACTS: D’s attorney interviewed and took statement from the survivors of a tugboat accident. The statements were taken to prepare for anticipated litigation. P requested copies of the statements but D refused saying it was privileged matter.

RULE: Attorney work product is not subject to discovery without a showing of necessity.

● Ct held that a qualified privilege existed to protect an attorney’s work product (documents & things prepared in the anticipation of trial) from discovery.

● Attorney Work Product only discoverable if the adverse party:○ has a “substantial need” of such materials in preparation of his case, and○ shows that without undue hardship, there is no reasonable alternative

source for the equivalent information.SANCTIONS

● Rule 37; contains the mechanisms for enforcing the provisions of the other discovery rules by imposing sanctions on the parties who violate the rules.

● Obtaining sanction is generally a 2-step process:○ 37(a): A party must first obtain an order to compel discovery;

○ 37(b): the party must move for sanctions under for failure to comply with the order.

● A motion to compel under 37(a) is filed after the opponent fails to make the automatic disclosure required by rule 26(a) or fails to respond to discovery served pursuant to the discovery rules

● The motion to compel (37a) must be accompanied with a certification that the movant has in good faith attempted to confer with the other party and resolve this without the court

● 37(b) provides that if a deponent fails to obey a court order regarding discovery, the court may impose any of the sanctions it deems appropriate

● “Wholesale failure” – 37(d) provides that upon motion (37a), sanctions are immediately available against a party who completely fails to participate in the discovery process – i.e. not showing up at the deposition.

--------------------------------------------------------------------------------------------------------------------- X. DISMISSAL (RULE 41) 41(a): Voluntary Dismissal

● Absolute right before an answer or motion to dismiss filed● 41(a)(2): After answer, all parties must stipulate

CASE AUTHORITY:

Marques v. Federal Reserve Bank of ChicagoRULE: 7th Circuit held that judgment on the merits after a voluntary dismissal is void, even when the suit and the reason for dismissal are completely insane.

● Two dismissal rule: Two voluntary dismissals = preclusion● Reasons to dismiss voluntarily:

○ Problem with case○ Pulled an unfavorable judge○ Sued the wrong person○ Reason to anticipate a counterclaim

● Cannot dismiss if there is a counterclaim, unless the counterclaim can stand alone (court still has SMJ)

● D can be awarded attorney’s fees on a dismissal without prejudice● Fees usually not awarded on dismissal with prejudice

CASE AUTHORITY

Hinfin Realty Corp v. Pittston RULE: 2nd Circuit set out factors to consider when determining whether D will be prejudiced by voluntary dismissal on 41(a)(2) motion:

● P’s diligence in bringing the motion (how soon after P determined they could not prosecute)

● Undue vexatiousness on P’s part● Extent to which suit has progressed (discovery expenses)

● Duplicative expense of relitigation● Adequacy of P’s explanation for need to dismiss

41(b): Involuntary dismissal

● Failure to prosecute: Did not go forward in a timely fashion● No formal warning needed, but good trial judge will ask for it.

CASE AUTHORITY

Aura Lamp and Lighting v. International TradingRULE: 7th Circuit held that trial court properly considered the frequency and magnitude of P’s failure to comply with deadlines, effect of failures, and prejudice caused to D and that the court does not have to warn P before dismissing.

-------------------------------------------------------------------------------------------------------------------- XII. DEFAULT JUDGMENT; JUDGMENT ON THE PLEADINGS Default and Default Judgment55 (a, b, c) – Failure to respond puts D in default: sets out defaults and default judgments

● Default: notation on court’s docket sheet that D has failed to plead or respond in time. P cannot obtain money or other relief on basis of default – as that would be Default Judgment (actual judgment)

● P must prepare an affidavit stating D has not responded in 20 days.● Clerk has no discretion and MUST enter default.

*Court prefers default; decide cases on merits rather than technicalities*If default judgment has been entered - 60b: relief from judgment or order

● For default judgment: if D has appeared in any action, he will get 3 day notice. 6b: Extends the amount of time D has to respond – must ask the court for this, motion for enlargement.54(c): Master’s authority; Demand for Judgment and for relief to be granted (as it was stated in your complaint). ---------------------------------------------------------------------------------------------------------------- XII. SUMMARY JUDGMENT; JUDGMENT AS A MATTER OF LAW (RULE 56, 50) RULE 562 basic situations for Sm. Jg.

● Parties agree on all the facts and their dispute is entirely about the law.

● Parties actually disagree on the facts but one side has so little evidence that no reasonable jury would find for that side.

*PURPOSE = EFFICIENCY. 2 basic situations for SJ:

1. Parties agree on all the facts and their dispute is entirely about the law.2. Parties actually disagree on the facts but one side has no genuine issue of fact – there is so little evidence that no reasonable jury would find for that side.

56: Authorizes court to enter judgment whenever it appears that there “is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law”a --Party must move for SJ, identifying each claim of which SJ is sought

SUMMARY JUDGMENT CHART

Step 1 – PARTY MOVING FOR SJ: Initial Burden of Production

If MOVANT carries burden of persuasion at trial, movant must show (moving for SJ on her own claim)

(1) credible or irrefutable evidence to support directed verdict at trial eg - you have a video tape showing the car ran the red light

eg – breach for not paying, D pleads affirmative defense and shows receipt as payment, good enough!

If NONMOVANT carries burden of persuasion at trial, movant must show (guy who didn’t start the action)

(1) affirmative evidence NEGATING AN ESSENTIAL ELEMENT of nonmoving party’s claim

(2) OR that nonmovant has no evidence or it is insufficient to establish their claim

Step 2 – PARTY OPPOSING SJ (always the non-movant now): Shifted Burden of Production (Rule 56e)

If MOVANT carries burden of persuasion, nonmovant must show: (1) evidence demonstrating an existence of a genuine issue

eg – could show that the affidavit was made by a felon or perjurer b/c it questions validity

(2) OR Affidavit requesting additional time for discovery (Rule 56f)

If NONMOVANT carries burden of persuasion, nonmovant must show: (1) sufficient evidence to make out its claim Step 3 – CASE GOES TO TRIAL (pending judge ruling) CASE AUTHORITY:

CelotexFACTS: Celotex appeals a judgment of the United States Court of Appeals for the District of Columbia Circuit reversing summary judgment in favor of the Ms. Catrett on the basis that the Respondent had not offered sufficient evidence rebutting Petitioner’s allegations.RULE: Summary judgment must be entered against a party who fails to make a showing of sufficient facts to establish the existence of an essential element of the case and which bears the burden of proof at trial.

50: Judgment as a Matter of Law (JMOL)Same standard used as summary judgment, court must decide whether a fair-minded jury could

return a verdict for non-moving party AFTER evidence from both sides has been presented.● Common names still used in many states:

○ Judgment as a Matter of Law (JMOL): (frmly) Directed Verdict Rule 50(a)■ Motion (at any time) before the case is presented to the jury. In this case, the

court is refusing to submit case to jury and will instead enter judgment.○ Renewing Motion for Judgment as a Matter of Law: Frmly Judgment not withstanding

the verdict (= JNOV) Rule 50(b)■ Motion after a verdict is returned, within 28 days ONLY if you had moved for

JMOL at the close of evidence. “Renewing motion”■ JNOV: Court submit the case to jury, and if jury returns verdict for which

there is insufficient evidence, the court may enter judgment notwithstanding the verdict.

■ JNOV = “delayed ruling on a directed verdict”

*WHEN MOVING FOR JMOL: you must specify law & issues - and then when you renew it, you are bound by that same argument.*Even though it is an oral motion, you must still put in the papers before the 28 day time period is up.

CASE AUTHORITY:

Kinerslow v. CMI CorpRULE: 8th Circuit held that non-moving party is only entitled to reasonable inferences regarding their evidence.

● Entered once the parties are fully heard.● Slightly easier to win on JAMMOL than summary judgment- all evidence

has been presented. =======================================================================

X. CHOICE OF LAW (ERIE DOCTRINE)

CASE AUTHORITY: Erie Railroad v. Tompkins

FACTS: P while in Pensylvania, injured by something protruding out from the train. Sued Erie Railroad (corp. of NY) in federal court in NY. (diversity action) Erie wants Pensylvania law, b/c it denies recovery to those trespasses (P trespassed), but P wants general law (federal law).Ct overturned Swift decision which said federal courts are free to exercise an independent jg on a general

matter issue. There’s no federal general common law.RULE: Except in matters governed by Federal Constitution, the law to be applied in any case is the law of the state in which the claim arose.

Byrd

FACTS: Byrd was injured while connecting power lines in the course of his employment for a subcontractor of Blue Ridge Rural Electric Cooperative, Inc. Plaintiff sued defendant for negligence in federal court .RULE:

● State use of a judge not determinative● Is there a countervailing Federal interest?● 7th Amend does not control the result, but has established Federal custom

on the matter of using a jury vs. the insubstantial State policy● State rule not as outcome determinative as Guarantee Trust or Erie.

Guarantee Trust

FACTS: Guaranty Trust Company served as trustee for some of the noteholders of the Van Sweringen Corporation. Guaranty Trust Company made large advances to companies affiliated with Van Sweringen. When the Van Sweringen Corporation began having financial problem, GTC agreed to purchase notes for $500 for twenty shares of Van Sweringen stock for each $1000.00 note. York received $6000.00 worth of the notes from a donor who had not accepted GTC’s offer. York brought suit in a class action in federal court based on diversity alleging breach of trust by GTC (failed to protect the interest of the noteholders and failed to disclose its self-interest when sponsoring the offer) on behalf of non-accepting noteholders.RULE: "outcome determinative test": deciding whether a piece of state law must be obeyed in federal courts

● If outcome is substantively the same then the federal court can apply its own rules instead of state rules

● If the outcome is different if we apply state law or not, then apply state law

CASE AUTHORITY: Hanna

FACTS: Plaintiff sued Defendant in federal court in Massachusetts based on diversity jurisdiction. Plaintiff served Defendant by mail pursuant to Rule 4(d)(1) of the Federal Rules of Civil Procedure. Defendant moved to quash the summons on the grounds that the Massachusetts service statute applied and it required personal service in order to be effective.RULE: If the rule at issue is procedural and the federal rule is on point with the state rule, then the Federal Rule must be applied as long as it complies with the

Rules Enabling Act, 28 U.S.C. Section: 2071 and the U.S. Constitution. If there is no federal rule on point, then the Erie doctrine should apply.

----------------------------------------------------------------------------------------------------------------------------- XI. ENFORCING A JUDGMENT; PRECLUSIONS RULE 62 (a) and (b): Enforcing a Judgment

● Child support orders: usually accompanied by garnishment order● Judgment lien: Can be entered against real property. Does not foreclose, but the

property cannot be sold until the lien is resolved.● Judgment creditor can pursue enforcement as a supplementary action● Judgment debtor cannot defend on merits due to preclusion

A. Claim Preclusion: res judicata --“One bite of the apple.” Barred from getting relief in a second suit on the same claim. REQUIREMENTS:

● 2 suits● Same claims*● Same parties● Parties must be in configuration● First case must have ended a valid, final judgment *

* IT IS A RULE 8 AFFIRMATIVE DEFENSE BY D – IF YOU DON’T RAISE IT YOU WAIVE IT.i. Suits

1. Single wrongful act: only one lawsuit for all claims arising from the one act.2. Primary rights test: 2 rights = property and personal. May recover damages for both.3. Transaction Test: TRENDING. “Common nucleus” of operative facts. Any claims arising out of that nucleus should be included in the original suit. IF they arise out of a different set of facts, a second suit may be brought.

CASE AUTHORITY:Rodgers v. St Mary’s Hospital

RULE: IL Supreme Court held that medical malpractice settlement does not bar claim under the X-Ray Retention Act, since the duty to retain the X-Rays did not arise until after the patient’s death.

ii. Configuration of PartiesSecond suit must involve parties in the same configuration. Same P v. same D. D may become P

and sue D (every one gets his day in court).

● Compulsory counterclaim rule: 13a – D must raise any claims that arise out of the same subject matter as a counterclaim. If you do not raise it you waive it, precluded from bringing a 2nd suit against P.

● Permissive counterclaim rule: 13b

D may assert, as a counterclaim, any [unrelated] claim that is not compulsory. iii. Validity, Finality, On the Merits

● Validity: Cts will only accord claim/issue preclusion to valid judgments. Ct must have both PJ and SMJ.

● Finality: Preclusion only attaches to final judgments. Individual rulings throughout

course of litigation are not preclusive. If there is a final judgment and the losing party appeals, in the interim the trial ct judgment is entitled to preclusion in Fed cts.

● On the Merits: Only judgment based on valid claims, not technicalities (improper venue, judgments based on lack of jurisdiction, failure to join a party, etc.)

41b: defines what is “on the merits.”

○ Involuntary dismissal w/ prejudice = on the merits.○ Voluntary dismissal = can re-file.

*Court in the first case is free to provide that its judgment will not operate “on the merits” by providing that the dismissal is entered WITHOUT prejudice. B. Issue PreclusionElements:

● Two cases must involve the same issue● Issue must have been actually litigated in the first case● Court must actually decide on the question● Ruling on the issue must have been necessary to judgment● If holding is based on two different theories:● Restatement: If you cannot tell which is necessary, neither is● Most courts say both theories are precluded● Can preclude subsequent claims that do not arise from the same claim

○ Example: Criminal proceedings may preclude civil actions● Identity of issue: Issues must be identical to be precluded● No state by NY applies issue preclusion to default judgment● Difficult to determine issues from general jury verdicts.

CASE AUTHORITY:

Williams v. City of Jacksonville Police Dept

RULE: N.C. Appellate Court held that District Court’s summary judgment on P’s Civil Rights claims precluded P’s personal injury, false arrest and negligent failure to train officers state claims because the underlying issue of whether the officers acted reasonably/had probable cause is the same for both claims.

Stemler v. FlorenceRULE: 6th Circuit held that KY Supreme Court’s affirmation of summary judgment on P’s wrongful death claim does not preclude her 1983 claim because the Supreme Court only had to find that she was not in custody at the time of the accident to make its ruling; the 1983 claim requires a finding on whether the actions of the police while she was in custody put her at risk for the accident. KY Supreme Court’s statement that she was never in police custody was dicta.

Burden of proof

● Old rule: No preclusion if different level of proof required● New rule: If standard of proof is higher on first case, may preclude

○ Problem: Could plead guilty to minor criminal charge that leads to costly civil suit.

Exceptions● Party against whom preclusion is sough could not, as a matter of law, have obtained

review of the judgment in the original action.● Issue is one of law and● Two actions involve claims that are substantially unrelated OR● New determination is warranted due to intervening change in legal context● Difference in quality or extensiveness of procedures in the two courts● Party against whom preclusion is sought had a significantly higher burden of persuasion

on the issue in the initial action than in the subsequent action; shift in burden; or adversary has higher burden than in the first action

● Clear and convincing need for new determination because○ Adverse impact o public interest of non-litigants○ Not foreseeable that the issue would arise in the context of the subsequent action○ Party sought to be precluded did not have fair adjudication due to the conduct of

his adversary Who is Bound? CASE AUTHORITY:

Richards v. Jefferson CountyRULE: SCOTUS held that prior litigation by individual taxpayers and the City of Birmingham re: county tax does not bind the class of employees in the county in the subsequent suit because the subsequent P was not adequately represented by

the prior litigants --------------------------------------------------------------------------------------------------------------------- XII. JOINDER OF PARTIES AND CLAIMS Rule 14: Third Party Practice/Impleader

● Allows the defendant to bring in an additional party whenever that party may be liable to defendant for all or part of the defendant’s liability to the plaintiff – Joint Tortfeasors

○ Purpose: Efficiency● Does not itself create a right of indemnity or contribution → party seeking impleader

must show that such a right exists in the substantive law CASE AUTHORITY:

Alltech Communications, LLC v. BrothersFACTS: Alltech alleges that Brothers are wrongfully using confidential information and trade secrets. Brothers impleads Kris, Robert, Laurence Langholz. Langholzes motion to dismiss third party claimHOLDING: Langholtzes are NOT liable to Brothers for any judgment obtained by Alltech. No allegations that the Langholzes forced him to misappropriate or misuse trade secrets

■ “Impleader is proper only when the third-party defendant’s liability is some way derivative of the outcome of the main claim regardless if it is derived from the same transaction or occurrence”

Rule 20: Permissive Joinder of Parties

● All persons may join or be joined:○ Plaintiffs: Persons may join in one action as plaintiffs if:

■ There is a claim against them jointly, severally or arising out of the same transaction or occurence

■ Some question of law or fact common to all the parties that arises in the same action

● Purpose: to promote trial convenience○ Defendants: Persons may join in one action against defendants if:

■ Any right to relief is asserted against them jointly, severally or arising out of the same transaction or occurrence

■ Any question of law or fact common to all defendants will arise in the action

○ Extent to Relief:■ Neither a plaintiff nor defendant need be interested in obtaining or

defending against all relief demanded.

○ Protective Measures:■ Court may issue order for a separate trial to protect a party against

embarrassment, delay, expense or other prejudice that arises.■ Difference from Rule 13 → Rule 20 not only refers to same transaction or

occurrence but a SERIES of same transactions or occurrences CASE AUTHORITY:

DirectTV v. LoussaertFACTS:DirectTV brought suit alleging Eversoll and six other defendant’s violated federal law when they accessed unauthorized interception. Eversoll filed a motion arguing that the court should remove them from case under → not properly joined.Holding: Improperly joined. Each transaction represents a separate and independent act.

DirectTv v. BarrettFACTS: DirectTV alleges that the defendant intercepted DirectTV satelite using device. Each defendant in each case purchased one or more devices, identical to intercept the exact evidenceHOLDING: Claims against the defendant have a “logical relationship” such that they arise out of the “same transaction or occurrence or series of occurrences”

■ Claims against defendants involve at least one common question of law or fact.

Rule 13(a): Compulsory Counterclaims

● Must arise from same T&O that is the subject matter of the opposing parties claim● Same evidence can support or refute both the claim and c-claim.● Logical relationship● Failure to assert leads to waiver of the counterclaim

○ Exceptions: claim was subject of another proceeding or opposing party sued on its claim by attachment that did not establish PJ.

■ Rule 13(b): Permissive Counterclaims■ Does not have to come from same T&O■ Failure to assert does not arise in Waiver

CASE AUTHORITY:

Nasalok Coating Corp v. Nylok Corp FACTS: Nylok filed a complaint against Nasalok claiming infringement of several trademarks (in favor of Nylok, tadremark is valid). Nasalok filed a petition to cancel the trademark-- validity of the trademark (judgement for Nylok).

HOLDING: The two claims from Nylok and Nasalok raise different legal and factual issues, will not be suported or refuted by substantially the same evidence, and are not logically related; therefore, NOT a compulsory counterclaim.

Rule 13(g): Cross Claims against co-party

● Must arise out of same T&O as original claim, c-claim, or if the claim relates to any

property that is the subject matter of the original action.

○ **Anytime you have an arrow against you, you must check to see if there is a cross claim regarding the same T&O.

CASE AUTHORITY:

Rainbow Management v. AtlantisFACTS: Barry, an injured passenger in the wreck, sued Rainbow and Atlantis. Atlantis then filed a cross-claim against Rainbow, for indemnity and for breach of contract. RMG then filed the instant action suit againt Atlantis and Haydu, seeking compensation for the damage to Elua. Atlantis suggests these are compulsory counterclaims.HOLDING: Once a cross-claim has been pleaded, the cross claimant becomes an opposing party and MUST plead as a counterclaim any right to relief that party has against the cross-claimant.

■ This idea is disputed; however, it is followed most frequently to ensure judicial economy and reducing unnecessary litigation.

■ Dolak agrees w/ this only to the extent that the case involves indemnity. Rule 18(a): Joinder of Claims

● Party may join as many claims as they have whether or not same T&O, as long as the first claim is valid.

CASE AUTHORITY: Friedman v. Hartmann

FACTS: Plaintiff alleges that Hartmann secured their agreement to invest in partnership to develop commercial properties and defendant obtained 600k from plaintiff by misrepresentation of facts. Defendant filed and served a third party complaint against 2 others asserting 5 different claims. Third party defendants moved to dismiss third-party complaint for failure to state a claim which relief can be granted.HOLDING: The first three claims of contribution, indemnity and state law claims are not valid under RICO. Therefore, the independent negligence and breach of contract claims must also be dismissed. Must state valid impleader claim.