SUBJECT MATTER JURISDICTION

FEDERAL QUESTION DIVERSITY JURISDICTION

CONSTITUTION + STATUTEIs there a federal cause of action?

No Federal SMJ

NoYes

Well Pleaded Complaint Rule:Plaintiff must state federal cause of action; anticipating a federal defense is not sufficient

Does the state law cause of action have a fundamentally federal foundation?Smith/Grable Exception:1.Significant Q of fed law2.Questions of law, not fact3.Maintain state/fed balance

No

You have Arising Under Jurisdiction!

CONSTITUTION (Broad) + STATUTE (Narrow) Do you have complete diversity?

Considered at the start of the suit.People: Based on domicile (where you live and have demonstrated some intent to stay for a while), not residence (center of gravity)Corporations: Based on place of incorporation + primary place of biz (nerve center)Unincorporated Ass’n: Citizens of any state where members are citizensAliens: citizens of a state if they are a US permanent resident; otherwise, residents of 51st state

Yes

DECLARATORY JUDGMENT

Under imaginary lawsuit/coercive action, would the plaintiff be able to file the complaint in court?

NoDoes the court have IPJ over imaginary

plaintiff (real defendant)?

Yes

Yes

No

Yes

You have Diversity Jurisdiction!

Yes

No

Do you have minimum amount in controversy (75,000)?

Can join multiple claims against 1 plaintiff to meet requirement;Can join multiple parties if the claims are related to meet requirement.Good faith presumption;Must be minimum amount you could get

NoFed Only

Concurrent

Patent/©

Other

SUBJECT MATTER JURISDICTION

SUPPLEMENTAL JURISDICTION

POWER§1337; Identify anchoring claim(s) [which have SMJ]

“Common nucleus of fact” / one cause of action

If two claims would be tried together if both were federal, and if the federal issues are substantial, then there is power

Are claims arising under?

Is there diversity?

§ 1367(a)Go to limits of Constitution (Article III) for case or controversy

§ 1367(b)If supplemental claim is made by the plaintiffagainst a 3rd party, is there still complete diversity?

No

No supplemental jurisdiction

DISCRETION [§ 1367(c)]Court can decline on Gibbs Test:

a. Novel state law claimb. State claims predominatec. Fed claims dismissedd. ‘exceptional circumstances’

Limited; should not be done often

Yes

Is AIC less important?

Not a claim against a person made party under

1367(b)

??????

Consider cross-claims against Plaintiffs by non-diverse TPD

If lawsuit could originally have been brought in federal court, it can be removed;

Only defendant can remove;- even if counter-claim/cross-claim filed- all defendants must agree to removal

Removal is immediate/automatic;- if filed 30+ days after complaint or amended complaint, then it can be automatically remanded

In diversity, defendant cannot remove in home stateIn arising under, defendant can remove always

REMOVAL (§ 1441) REMAND

Motion to remand must be made within 30 days;

If 3rd parties are added that destroy diversity, court can automatically remand;

Generally not reviewable

DECLINING JURISDICTION

Federal courts can decline jurisdiction when prudence demands it based on Colorado River factors:

Disrupts state formation of policy;Imminent state court decision might moot federal decision;Federal proceedings invoked to limit state crim proceedings;Limited district court proceedings;Issues are best done in unified proceedings;Physical distance between federal court and local issues;Desirability of avoiding piecemeal litigation;Nature of federal claim versus state claim;Source of governing law

Probate/Divorce Exception; state courts better suited

A little of both?

Horizontal Choice: Between States

CHOICE OF LAW

Vertical Choice: Federal or State Law?Supremacy Clause: Laws of Fed Gov’t #1Rules of Decision §1652: Apply the laws of the states when sitting in diversity

First RestatementRULE:Lex Loci Delicti;Rights become vested where the accident occurs

Second RestatementSTANDARD:Procedure by forumSubstance by analysis;

Lex Loci Delicti if:1) Injury occurs in injurer’s state & there is no liability2) Injury occurs in injured’s state & there is liability

If action occurs in state but all participants from another state, apply the latter’s law (State’s interests high)

Erie DoctrinePossible Interpretations:Constitutional;

Federalism; fed common law doesn’t existSeparation of Powers; Congress made the lower courts & determines their function; common law could existEqual Protection; law shouldn’t depend on where defendant is from

Statutory;§1652 meant to include judicial common-law decisions

Prudence; courts shouldn’t be making laws (?)

Twin Aims of Erie:1) Discourage Forum Shopping 2) Avoid inequitable administration of law

York Outcome Determinative TestIf choice of law would affect outcome, apply state lawDead on arrival; everything changes outcome

Hanna Test-If there is a valid FRCP that is valid & applicable, it applies- If the Fed Rule does not encompass point at issue, state rule applies (consider twin aims analysis)

State Law Federal Law

Procedural?Substantive?

Harlan Dissent in HannaWould the law affect primary conduct?

States govern primary conduct, so apply state law if the answer is Yes

4(k)(1)(a):Piggy-back on state court jurisdiction

PERSONAL JURISDICTION

Are there sufficient “minimum contacts”?International Shoe standards;

Purposeful AvailmentDid defendant take advantage/expect protection of state laws?Mere foreseeability is not sufficient

Effects TestWere defendant’s actions directed toward the forum state?Unilateral action away from a state is not sufficient.Usually applies to torts.

Stream of CommerceCould the defendant expect its products to wind up in the forum state? Did it gain advantage of state laws by selling there?

Mere foreseeability is not sufficient

General JurisdictionContinuous & systematic (business) activities within the state

Specific JurisdictionArises in result of specific activities;

Consider state interest (as shown by statute or general interest [taxes])Is the action unilateral away from forum state?Plaintiff’s interest in convenient & effective reliefInterstate judicial system’ interest in efficient resolutionReasonable foreseability

CONSTITUTION (14TH/5TH AMEND) + STATUTE (LONG ARM/RULE4)Constitutional Considerations: Traditional Notions of Fair Play & Justice / ConvenienceStatutory Considerations: Displays state interest (generally broad; go to limits of 14th Amendment)

TagWas the defendant within state boundaries?- Airspace is within state- Is this subject to Int’l Shoe standards?

4(k)(1)(c):If federal cause of action & statute allows for service of process

4(k)(2):Worldwide service if;

federal arising under cause of action minimal contacts in all of USAno state has sufficient contacts/interest

Contacts within US as a whole can be aggregated if no state has

sufficient contacts

Federal “Long Arm Statute”Rule 4

In personam: Over a person (below applies)In rem: Over a thing (who owns this?)Quasi-in-rem: Against a person, but jurisdiction over property (Standards below now apply)

-provides protection to DEFENDANTS; consider in declaratory judgments!

-PJ must generally raised in initial answer or it is assumed to be waived

Special Appearance-Appear and argue PJ;-If you lose, then try on the merits; on appeal, initial PJ can be challenged-Avoids issues based on “Full Faith & Credit”

THE BASICSCompels filing in a particular court;Can be waived by either party;Statutory, not constitutionalWill generally be approved by courts if

there is a genuine reason

28 USC §1391Federal Venue Rules

VENUE

State Venue Rules:Highly Variable!

28 USC §1391 (a) any district where- defendant resides if all defendants in the same state - events occurred or property is located- if neither 1 nor 2: defendant has IPJ

§1404(a)Inconvenient; law of transferor follows transfer

Transfer RulesMust be in district where plaintiff could have brought itCourts can transfer sua sponte

§1406(a)Not properly brought; law of transeree court applies

§1631Court can sua sponte transfer for lack of IPJ

Forum non conveniensPrevent misuse of venue;Avoid harassment or inconvenience

28 USC §1391 (b) any district where- defendant resides if all defendants in the same state - where events occurred or property is located- if neither 1 nor 2: where defendant may be found (basically IPJ)

28 USC §1391 (c)- where there is IPJ-consider each district as a state within a state; must have IPJ within district- barring that, wherever it has the most significant contacts

28 USC §1391 (d)Aliens can be sued in any district

28 USC §1391 (e)Removal is automatically to fed court encompassing that district

AliensCorporations

DiversityArising Under

No IPJVenue or Venue +IPJ problemBrought in correct place

Private interests of plaintiffs (convenience)relative ease of access to proof; availability/ability to compel witnesses; possibility of view of premisesPublic concerns (of court/justice)court congestion; local interest in local decisions; forum's familiarity with law; fairness of burdening citizens with jury duty for unrelated caseInternational litigants get less preference than US citizens

Less-favorable laws in international transfer should be considered but are not the end of considerations; but totally absent laws might be enough to overcome motion

Removal

Notice PleadingPost-1938 FRCP- General idea of claims; let defendant know what he has to defend against- Cause of suit + basic legal theory- ultimate facts- Consider sufficient notice

Code Pleading- pre-1938 Fed Rules of Civ Pro- Give defendant & court a preview of what will be proved;- List of facts to be proved; if proved → win- facts required depends on type or cause of actionunderlying facts- Legal Conclusions vs. Factual Allegations

Rule 8: “short and plain statement of the grounds for the court's jurisidction... of the claim showing pleader is entitled to relief... demand for the relief sought”Rule 12(b)(6) / Rule 12(c):Motion to dismiss for failure of complaint to state a claim

Plausibility Requirement- Similar requirements to code pleading;- Must state facts that plausibly suggest claim;

if the facts suggest moreplausible alt., dismiss

-“legal conclusions” not entitled to respect;- not explicitly a probability requirement

1) Likelihood of Success on Merits2) Irreparable Harm

1) If remedy at law (damages), likely no injunction2) Lost profits are difficult to prove, may be irreparable harm

3) Balance of the Equities4) Public Interest

THE EARLY STAGES OF A LAWSUIT

THE COMPLAINT

1938Federal Rules of Civ Pro

Bell Atlantic

v. Twombly

+ Iqbal

RELIEF PENDING LITIGATION (Rule 65)

Four-part analysisSometimes requirements;Other times factors (i.e., 5th

Circuit)

If one person: Send mailDefendant’s class action: Must notify some of the people

“The fundamental requisite of due process of law is the opportunity to be heard.” (Mullane)- Must be by means ‘reasonably’ expected to give notice to parties to a suit- Limited byt high level of notice requirement

DUE PROCESS: NOTICE Certified Mail probably is not sufficient; mail in the sewer hypo Cert. mail sufficient for prison

Adequate notice for the homeless is a matter of fact for jury

Posting on a door in a housing project insufficient

If addresses reasonably obtainable, must be obtained

If addresses known

“Heroic efforts”/ Saving Private Ryan not necessary

Notice by mail insufficient if person is insane

Summons must include important info about appearance (Aguchak)

Follow Up Requirements

Modified Eldridge Test1) Defendant’s interests

affected2) Risk of erroneous

deprivation under current procedures vs. under proposed procedures

3) Other party’s interests (including cost)

OLD PROPERTY NEW PROPERTY Both

-Does initiator have interest in the property? -Was a bond posted? Was a counter-bond posted?-Clerk v. Judge

Is this an issue of subsistence/necessity?

Highly provable/fact or doc based?Who has burden of initiation?

OPPORTUNITY TO BE HEARD: PROPERTY RIGHTS

“3 Part Eldridge Test:”1)Private interests affected2)Risk of erroneous deprivation under current procedures vs. under proposed procedures

1) not revenue neutral!

3)Government interests (including cost)

Ex: Torts less likely to be supported than credit repos with bond;

Ex: Medical reviews easier to prove than subjective assessments

IMPORTANT FACTORS“extraordinary situation” exemptions:1)Necessary public interest2)Promptness needed (to protect property)3)Taking executed by state & justified (Compare Fuentes & Mitchell)

IMPORTANT FACTORS-Distinguishes importance of the entitlement; welfare > social security disability(Compare Goldberg & Eldridge)

Is physical liberty at stake?

OPPORTUNITY TO BE HEARD: RIGHT TO COUNSEL

Fundamental fairness requires right to notice, counsel

Apply Eldridge Factors;1) Private interests

affected2) Risk of erroneous

deprivation under current procedures vs. under proposed procedures

1) This is not revenue neutral!

3) Government interests (including cost)

YesNo

Sorta

If prisoners to be transferred within system, no hearing nec;

If transferred out of system (i.e., mental hospital), then due proc requires representation (not nec. lawyer)

Under step 2 consider;-Possibility of crim charges-Difficulty of concepts of law at trial-Difficult of cross exam (expert witnesses)-Consider whether counsel would make/have made a difference

Requirements of Due Process (via Vitek) -Written notice -Availability of Counsel-Pre-judgment hearing with time to prepare -Effective notice of all rights (all these things)-Opportunity to present evidence -Notice the absence of discovery from this list-Independent decision maker-Written reason by fact-finder for decision

Types of Liberty

Cannot be revokedmust be respected

once created

Constitutional Statutory

Purposes of Discovery-Minimize surprise-Narrow issues (find points of agreement/disagreement)-Provide information sharing mechanisms-Minimize court involvement (decrease societal costs)

26(f) Meet & Confer

DISCOVERY

16(b-c) (initial scheduling conference)

26(b)(1-2) (scope and limits on frequency/extent of

discovery)

26(c) (protective orders)Judges don’t like to deal with this shit; loser pays costs

34 (requests for production)-can be extremely huge

33 (interrogatories)-not that valuable since considered and written by lawyers

26(a)(3) (pretrial disclosures)

30(a), 30(b)(6), 30(c-d) (depositions)

-Main source of information

29 (party alterations to discovery limits)

36 (requests for admission) 37(a) (motions to compel) Judges don’t like to deal with this shit;

loser pays costs

26(e) (duty to supplement and correct)

16(e) (final pretrial order)-replaces everything prior;-all important info must be in here;-lists non-disputed issues-lists disputed issues-lays out plan of the trial;-only exceptional reasons to compel late additions

26(b)(3-4)Scope of Discovery (26(b)(1)

-”Non-privileged matter relevant to claim or defense of any party… relevant info need not be admissible at trial if discovery appears reasonably calculated to lead to the discovery of admissible evidence”-Merits should not be considered (but they are)

Old Language:“... Relevant to subject matter of the litigation”- Change was useless since important part was later in the rule

Allows for broad discovery

EXCEPTIONS-Privacy concerns (especially 3rd parties)-Privileged discussions (deliberations-Attorney/client priv

CELOTEX FRAMEWORKGeneral Standards

BURDINE FRAMEWORKEmployment Discrimination

“Three Step Dance”

SUMMARY JUDGMENT

(1) Prima Facie Case by Plaintiff-P applied;-P was minimally qualified;-P was denied;-someone outside protected

class got the job-(+) factor

The Standard:“If there is no genuine issue of material fact, movant is entitled to judgment as a

matter of law.”

(2) Defendant articulates legitimate, non-

discriminatory reason-Here, burden of production, not persuasion

(3) Plaintiff must show that Defendant’s reasons are a pretext

for discrimination-ultimate burden of persuasion

If burden is with the moving party:

(Usually the Plaintiff)

Must support with credible evidence that would entitled it to directed verdict at trial (No rational jury could find

otherwise)

If burden is with the non-moving party

(Usually the Defendant)

OPTION 1Negate essential evidence

-prove that a necessary element of the other party’s case can be disproved

OPTION 2Allege evidence is insufficient

-affirmatively show absence of evidence in record; -lay out the best/necessary evidence, and show that the other party doesn’t have it

Summary Judgment is appropriate when there is no genuine issue of

material fact and defendant is entitled to judgment as a matter of law

-At summary judgment there are no credibility determinations by the judge, unless there is objective/neutral evidence to the contrary to a deposition/piece of evidence (Scott v. Harris video tape)

VOLUNTARY DISMISSAL-places parties in positions before the suit began;-generally not adjudication on the merits

-unless it has been dismissed before

-Remittitur: allowed in Fed-Additur: not allowed in fed-States can decide for themselves since they aren’t subject to the 7th Amend.

JUDGE & JURY

No right to jury

7th Amendment Jury Standard-”Preserves” the right to a jury trial as it existed in 1791- Consider Law/Equity divide

Compare statutory action to 18th Century actions brought in Law or Equity

2-Part Test for right to Jury Trial

Examine remedy sought and determine whether it is legal or equitable in nature

(MORE IMPORTANT PART OF THE TEST)

LegalEquitable

Right to jury

LegalEquitable

Legal RemediesCompensatory DamagesPunitive DamagesEjectment

FRCP 38: Right to a jury trial is assumed waived unless it is specifically requested in

the complaint

Power of Congress to Limit Jury Trial

Public Rights-Administrative agencies trying new causes of action do not require a jury trial

Equitable RemediesInjunctionRescission/Modification of contractRelief from judgment on grounds of

fraudReplevinRestitutionDisgorgement of ill-gotten gains

Private Rights-Congress’ power to block application of 7th Amendment rights is limited; generally, apply 2-part test-Generally cannot block unless action is part of a regulatory system

Issues for the Judge-Cases where uniformity is important-Cases involving interpretation of written documents- Constructions of patents/terms of art-Meaning of undisputed contracts

Issues for the Jury-Community standards questions-Determining questions of factual validity-Deciding the meaning of a contract-Deciding whether contract existed-Negligence

FRCP 39: Court can have an “advisory jury” or can allow

for jury trial where not required if both parties

consentJury Instructions

-Jury instructions should be as favorable to your side as possible without being so biased that they are rejected by the judge

-party cannot appeal the failure to give an instruction that he did not request nor giving an erroneous instruction to which he made no immediate exception;-UNLESS the instruction was close, in which case the judge should modify it

-Harmless error gives huge discretion/deference to trial judges; stringent standard of review

-Court reviews de novo accuracy of instructions, but only reviews not giving instructions in terms of ‘abuse of discretion’

Government does not have to be a party Who holds the right?

Parties must maintain their right to appeal-defendant must file rule 50(b) (JAMOL) or Rule 59 (post-trial JAMOL) in lower court in order to raise it on appeal

Standards of Review

Appellate Standards of ReviewDe novo: findings of law (i.e., statutory interp.); no deferenceClear error: findings of fact (rule 52); fair deferenceAbuse of discretion: i.e., new trial, discovery errors, etc.;

- both above require definite, firm conviction that a mistake was made

Plain error: error that is so obvious that the court should have said something; extremely rare

Final Means Final-Finality means finality, even if later on your argument is validated.-UNLESS clear attempt to commit fraud against judicial system-Or extremely relevant material facts

1291: Final Review-actual final order-Cohen/Collateral – unreviewable at end of trial, separate from the merits, reasonably important, not ‘discretionary’ (yes/no) (similar to Colorado River stay)

Rule 60 Relief From Judgment

-extremely high standard; not common

Appellate Review

Rule 59New Trial

Altering/Amending a Judgment-Motion for new trial no later than 28 days;-If against clear weight of evidence-Based on evidence that’s false-Will result in miscarriage of justice

Rule 52(a) Findings & Conclusions

-If trial of facts without jury, court must state conclusions of fact & law separately.-Findings of fact are given high level of deference

1291(a)(1) -grant/denial of (even preliminary) injunction can be immediately appealed-only party asking for injunction can appeal

1651 All Writs-lets an appellate court just do whatever. -Usually irreparable harm & ‘easy’ (hogwash)-no alt. adequate means of relief-Movant bears burden showing relief clear/undisputable-issue court must be satisfied it’s appropriate under the circumstances

23(f)-grant or denial of class certification can be immediately appealed

1291(b) “double discretion” interlocutory appeal1) TC issues express writing on a ruling, on material issue of law that will have a major impact on the final decision2) Appellate court has discretion;

- can consider all issues within the scope of the appeal

Rule 50JAMOL

-Construing evidence most favorable to non-moving party, if no rational jury could find for them moving part is entitled to judgment as a matter of law. Pre or postverdict.

Not appealable if issued since it is not a

final order

Rule 54(b)-court can enter final judgment on one or more claims without ruling on everything; must be ‘no just reason for delay’-must be express determination or it remains open-DC has discretion as to whether its separable-appeal within 30 days

Appellate jurisdiction is like SMJ; can be brought by anybody, any time, can change opinion

Supplemental Jursidiction is keyConsider rules mentioned in 1367!

FRCP 13a) Compulsory counterclaims: same T or Ob) Permissive counterclaim: not required, not precludedc) Relief sought in counterclaim does not have to diminish or defeat other side’s recoveryg) cross-claim against co party even under same claim

JOINDER OF CLAIMS AND PARTIES

FRCP 14-Third parties-P can bring in a 3rd party if D could

FRCP 18-As much as you want!-Contingent claims can be joined, but court can choose to award for only one

Same T or O:1) Similar issues of law/fact2) Would claim preclusion apply?3) Substantially the same evidence?4) Logical relation?

FRCP 20-plaintiffs can be joined if they assert relief due to same T or O-Or common Q of law or fact-Ds can join for the same reason

FRCP 21- Misjoinder not grounds for dismissal; anyone can add or drop a party, including court;- Claims can be severed by the court

FRCP 42-Court can join, consolidate, or whatever to speed up-Court can order separate trial of separate issues/claims/cross-claims/counterclaims/third party claims-But must preserve right to jury trial

FRCP 24(a)Intervention

2.5 part test:-Is there an interest?-Would the disposition of the action impair applicants ability to protect their interests if they weren’t allowed to intervene?-Is applicant not adequately represented by others?

-If yes to the 2nd two, then determine nature and scope of interest to determine nature & scope of intervention

US can generally prevent intervention

US can intervene in questions of

constitutionality

SMJ is key!

Permissive-statute gives conditional right-Common issues of law or fact

As of Right-statute gives unconditional right-Interest not adequately represented

Careful with SUBJECT MATTER JURISDICTION

Bring all your claims within the same claim.

CLAIM PRECLUSION

Same Claim- Broad definition of claim

- Transaction or occurrence

Judgment Final on the Merits- Not dismissed for SMJ, PJ, venue

- Dismissal for SoL varies state by state- Does not have to be actually litigated- TC judgment is final even if on appeal

Same parties or in Privity- Litigant must have had full & fair opportunity to

litigate claim- Must have had ‘substantial control’ or

opportunity to intervene- Virtual representation is dead

Misc.- If you sue for payment of a bond/ongoing payment, future suits are not barred for future, un-realized payments

- Unless you have a poorly drafted acceleration clause

ISSUE PRECLUSION

Same Issue Actually Litigated-The specific issue has to have been brought up and decided-Bringing something up in the complaint generally means it is litigated; failure to deny counts as admission

Same Parties… ? Necessary to Decision- The specific issue has to have been necessary to the result

Non-Mutual Defensive Collateral Estoppel

-Conserves judicial resources-Encourages bringing all claims-Generally allowed

Non-Mutual Offensive Collateral Estoppel

-Can’t force Ps to join;-Might as well…

-Encourages ‘wait and see’-Can’t deny P2 his day in court based on P1’s success

Inconsistent Verdicts-Currie’s Train Wreck-Generally does not lead to issue preclusion

Allowed under Parklane Hosiery;

but consider implications

§1738, Full Faith & Credit

Preclusion Among Systems

§1738, Congressional PowerBut if exclusive fed jurisdiction, no claim preclusion; maybe issue preclusion, though

Rend

erin

g

Subsequent

State

State

Federal

Federal

SemtekFederal Common Law Federal Common Law

Subsequent Court must give at least as much preclusive

effect as the rendering court would give

Can they give more?

Probably no.

Preclusion From Agency Decisions

Semtek is diversity.

What if its Fed Arising Under ->

State

Rendering court can limit the preclusive effect of its

decisions

Must act like a court

Mini-Code of Civ Pro1)Notice2)Present/rebut/obtain evidence3)Formulation of issues of law/fact4)Final Decision rendered5)“Other” procedural elements followed respective of the type of trial/issue

Things Noticeably Absent1)Discovery

1)Question of how much discovery is necessary

2)Appeal3)Counsel

Why do we have it in regular court systems?

Consider policy implications.

Congress can create an ALJ with no preclusive effect

NumerocityLimit # of actions

Seems weird to have too few

CommonalityLimit # of actions

Joinder on steroids

CLASS ACTIONS

Typicality/representativenessMake sure litigators represent

the class to avoid potential conflicts of

interest

Prejudice Class Actions 23(b)(1)- mandatory, no opt-out- Optional notice by appropriate type

Injunctive & Declaratory Relief 23(b)(2)- Mandatory, no opt out- Notice optional- Does not need to be offensive to

every class member

Damage Class Actions 23(b)(3)- Mandatory opt-out- Mandatory notice by means most

likely to reach class members

Inconsistent/Incompatible Decisions

Limited FundQuestions of law or fact common to class

members must predominate over questions affecting only individual members

Class action must be superior to other methods of resolving the controversy

How difficult will management of the action be?