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CIV PRO
FINAL OPEN NOTE

Intro:
Precedent- federal District courts do not need to follow each other, because they are parallel.
When a U.S. District Court has a state law issue, it looks at how the state would rule
Article III gave a compromise for congress to create lower courts.
Steps in dispute resolution process
1. who, what, where
2. initiate suit
3. response to action- no remedy from law
4. discovery-what are real facts
5. trial- only if necessary
6. possible motions- new trial, etc.
Federal and state courts:
1. state courts- have general jx, meaning court could hear everything
2. federal courts- limited jx. Limited by Constitution and congress
a. they place a limit on state courts (patent, copyright, etc.)

Subject Matter Jurisdiction (SMJ):

Federal Courts power to decide the type of


case before itcan only proceed with Constitutional authority (Article 3 Section 2) and
Congressional approval ( 1331 1332)
2 types of SMJ:
Federal Question 1331
Diversity with amount in controversy 1332
Federal Question Jurisdiction (FQJ): 28 USC 1331
FQJ is when the cause of action arising under federal law aka CONSTITUTION, LAWS OR
TREATIES OF THE US (whether P is relying on or contesting)amount in controversy
does not matter for FQJ
It cant be conferred by parties by consent
some examples of FQJ:
arises under federal statute
[Mottely]well-pleaded complaint rulecomplaint evaluated for FQJ by looking only at
Ps cause of actionthis does not include anticipated defenses of federal statutory origin
which MAY be used by D
federal claim must be substantial, not frivolous or lacking on the merits
2201 permits declaratory judgments ONLY when suits that would arise in the absence
of declaratory judgment COULD be brought in federal court
No amount of controversy necessary.
Exclusive Jx:
admiralty
bankruptcy
certain antitrust cases
patents & trademarks, copyright inter-state commerce [white slave trade case]
where US is a party
controversies between states
controversies between US citizens and foreigners

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Diversity Jurisdiction: 1332


Cases between citizens of different states or between citizens of a state and citizens or
subjects of a foreign state AND amount in controversy exceeds federal statutory limit of
$75k
1. complete diversity between parties
a. complete diversity is needed between ALL and all . (Note: may live in the same
state as other and defendants may live in the same state as other .
b. Corporate diversity- citizen of a
1. state of incorporation
2. state which it maintains its principal place of business.
c. third party interpleader- it may destroy smj if it destroys diversity
2. amount of controversy>$75,000.00
When suits are between:
1. citizens of different states
2. citizens of a state against citizens of foreign states or countries
3. citizens of different states, with additional parties from different states or countries
4. citizens of one state (or different states) against citizens of a foreign state acting as a

Diversity of Citizenship:
A individual is a citizen of the state ONLY if he or she is both:
A citizen of the US (born or naturalized) or a permanent alien
AND
Domiciled in that state

DOMICILE: one is domiciled in the state of their birth (or of previous domicile) until they
establish residency plus intent to stay for an indefinite period in another state: (burden
of proof is on P)

Residence- must have a fixed and permanent home in the state.

Intent- factors: employment, residence, voting or auto registration, etc.

Domicile is determined at the time of filing the suit (Saadeh v. Farouki)


Mas v. Perry: intent not to leave. Intention of permanent residence
A student attending college in LA who has left her parents home in MS is
still domiciled in MS until she sets up a physical residence in another
state with the intent to remain there indefinitely.
Gordon v. Steele: intent to remain indefinitely
Note: US citizens living abroad for an indefinite period is not a citizen of any state and
thus can not use diversity jurisdiction
Domicile for Corporationscan have multiple domiciles (you can never have diversity jx
against Teamsters b/c they Inc. in every state)
State of incorporation
AND
Location of Principle Place of Business (PPB)a corporation can only have one PPB
Nerve centerlocation of corporate headquarters
OR
Muscle Centerwhere corp. transacts most of their business
OR
Hybrid of both
Corporations chartered in foreign companies

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Majority position- a corporation is deemed exclusively a citizen of


a foreign country of incorporation so it is an alien for diversity
purpose
Minority position- PPB

Domicile for Partnerships and unincorporated companies: citizens of where


partners are located. They are considered individuals.
Class Actions: named representative of class it the P whose residence is considered for
diversity purposes
Domicile for Aliens: 1332 (c)(4): aliens are citizens of the state where they
are domiciled as per 1332 (a), if they reside with the intention of becoming a
permanent resident.

Complete Diversity Rule: [Strawbridge] No one P can be a citizen of the same state as
any one D

NOTES:
Diversity for estates, infants, and whackos is determined by the represented
Diversity for class actions is determined by the representative
Divorces must be brought in state court according to tradition.
1359-deprives the federal court of Jx where a party by assignment or otherwise, has
been improperly or collusively made or joined to invoke Jx.

Amount in Controversy (AIC): as specified in 1332(a)must be more than $75K


AIC must be valued with good faith and is determined at the outset of the case (if you
get less later its ok but you may have to pay court costs)punitives are included in AIC
calculation in states that allow it under substantive law.

Rules on Aggregation:
1. 1 P may aggregate as many claims as he or she has against 1 D, whether claims are
related or unrelated
2. 1 P against several - a who has an axn against several defendants may aggregate
her claims against them only if the defendants are jointly liable to the plaintiff. She
cannot aggregate claims based on separate liabilities.
3. Claims by multiple Ps or against multiple Ds can not be aggregated unless there is a
common undivided interest in the subject matter of the action (such as joint ownership of
property or partnership). Claims cannot be separate and distinct.
4. If one partys claim meets the jurisdictional amount but the other partys claims do not
then the traditional rule is that the claims can not be aggregated [Zahnclass actions]
However, some courts have held that Zahn has been overruled by the enactment of
1367 (supplemental jurisdiction)
5. counterclaims
a. compulsory- arising out of same transaction, court has ancillary jx, does not need
to meet AIC requirment
b. permissive- arising out of an unrelated transaction, must meet AIC

Valuation of Injunctive Relief:


Generally determined as value to Pnot as cost to D
Some courts will consider the greater of the two

CHALLENGES TO SMJ:
Direct attacks:
Direct attacks are ones that take place during the lawsuit including appeal

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Can be raised anytime in the trial


Collateral attacks:
Attacks which take place in a second suit in which SMJ of first court is questioned
Collateral attack is only justified in special circumstances:
When D appears and challenges SMJ and losses
When D appears and fails to challenge SMJ and loses on the merits
When D defaults

Courts can raise issue of lack of SMJ sua sponte

Full Faith and Credit (FFC) can be challenged ONLY if due process was violated
(due process includes SMJ)
3 elements of Due Process required to extend FFC:
SMJ
PJ
Notice and opportunity to be heard

SUPPLEMENTAL JURISDICTION:
Authorized by 1367
ANCILLARY JURISDICTION (additional parties to a claim) + PENDENT JURISDICTION (state claims added to
federal claims) =SUPPLEMENTAL JURISDICTION

Except as otherwise provided, if there is federal SMJ over one claim then there is
supplemental jurisdiction over all other claims which are so related to claims in the
action within such original jx that form part of the same case or controversy under Article
III.
Gibbs Test: supplemental jurisdiction claims must derive from a common nucleus of
operative factscodified under 1367(a)i.e. same transaction, occurrence or event
On test: Here are the common facts that constitute each claim. Work with the facts.
Miners standing in front of coal is the federal law. Same facts bring up the state
claim.

Limitations on Supplemental Jurisdiction: as proscribed in 1367(b)


Where SMJ is based solely on 1332 (diversity jurisdiction) then the following claims
involving additional parties are excluded unless EACH claim individually satisfies diversity
of citizenship and amount in controversy:
Exceptions:
Claims by Ps against persons (additional Ds) made parties (joined) under:
FRCP 14 (impleader)
FRCP 19 (mandatory joinder)
FRCP 20 (permissive joinder)
FRCP 24 (intervention)
Claims by persons proposed to be joined as Ps under rule 19 (mandatory joinder) or rule
24 (intervention)
Comment: 1367(b) does not appear to cover claims by Ps joinder under rule 20
against a single D. Stromberg holds that supplemental jurisdiction may be exercised
over such claims.

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The effect of this holding (Stromberg) is that if there is one P who satisfies 1332 then
claims by other Ps who are joined under rule 20 do not have to individually meet
complete diversity or amount in controversy.
Comment: 1367(b) does not appear to cover claims by Ps joined under rule 23 (class
actions) against a single D. Abbott holds that supplemental jurisdiction may be exercised
over class action claims.

Comment:
The legislative history indicates that Congress did not intend to overrule Zahn:

Both Stromberg (10th Dist) and Abbott hold that where the unambiguous text of a statute
conflicts with the legislative history, the text controls
But Meritcare (3rd Dist) and Leonhardt (and a majority of district courts that have
addressed the issue) have followed the legislative history in holding that 1367(b) did not
over rule Zahn which said no supplemental jurisdiction for class actions.
Thus, there is a split of authority regarding class actions
1367(b) did not overrule Zahn
1367(b) did overrule Zahn

SO:

1367(a) grants supplemental jurisdiction under common nucleus of operative


facts
1367(b) limits supplemental jurisdiction for cases based solely on 1332-diversity

THEREFORE:
Courts will not have supplemental jurisdiction under claims where :
P tries to add: (P / D)
under: 19
14
24
19
20
24
note: 1367(b)--says nothing about D adding Ps or D adding D
Discretion regarding Supplemental Jurisdiction
1367(c) gives Courts power to decline to exercise supplemental jurisdiction when:
claims raise novel or complex issue
state-claim substantially predominates over claims over which there is federal
jurisdictions
a. Will not get supp jx if there is a minor federal claim.
Claim over which there is federal jurisdiction is dismissed (especially if dismissed before
trial). The less time and costs spent, the more likely it will be dismissed.
Other exceptional circumstances raise a compelling reason for declining jurisdiction
NOTE:
If a supplemental claim is dismissed, the statute of limitation for all claims dismissed at
the same time is tolled until 30 days after dismissal, unless state law provides a longer
tolling period.
ADDRESSING SUPPLEMENTAL JURISDICTION ON AN EXAM
Is there a federal suit going on already:
Trying to add parties or issues to a case that already has federal SMJ:

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1st try to find independent SMJ for each new party or issueis it granted under:
1331FQ Jx
1332Diversity Jx
NO regular SMJthen go on
1367 (a)look for supplemental jx granted
forms part same case or controversystatutory language
Defined by common nucleus of operative fact
Defined by same transaction or occurrence
1367 (b)look to see if supplemental jx is taken away
Only applies to 1332 (diversity jx)

D can add whoever he wants


1367(b)--only kills supplemental jx over claims to be added by P
P tries to add:
under:

(P /
19
24

D)
14
19
20
24

P can not add Ps under 19, 24


P can not add Ds under 14, 19, 20, 24

REMOVAL

If a case brought in state court could have been originally brought in federal district court,
then D may remove the case (authorized by 1441procedure for removal 1446)

Removal always requires two statutes 1441 and some basis for federal jurisdiction
(such as 1331 or 1332)
Removal only deal with moving from state court to federal court
Authorized by 1441ACTIONS REMOVABLE GENERALLY
With original jurisdictions to federal courts via:
1331
1332
Removal is allowed (b) when: a federal question may be removed w/out regard to the
residence of the parties.-Except:
As long as any defendant is not a citizen of the forum state for diversity cases.
1441 (c): When an independent federal question is joined with a non-federal
subject matter, the court may choose to either:
1) split the matters and hear only the federal element
2) hear the entire case
3) remand matters where state law predominates.

1441 (d): Foreign state -When a sues a foreign state, the case may be
removed by the foreign state
GENERAL NOTES ON REMOVAL:
Removal to federal court would be to the Federal District Court embracing the place
where the state action is pending
P can not remove from state court in which he filed on the basis of counterclaims filed by
D which would have granted original jurisdiction to the federal courts

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If a diversity case has more than 1 defendant, all s must remove case together.

Additional Deal on Removal:


If removal has already taken place:
1441(e)if a state court originally did not have jurisdiction but the claim was properly
removedFederal court to which it was removed may still here the claim
1441(e)is an alternative to having the cases dismissed and re-filed in federal court
Removal for diversity cases is one year before filing.
Caterpillar, Inc. v. Lewis:
There was diversity before judgment was issued. To wipe out the adjudication
Post judgment an dre turn to state court a case now satisfying all federal jx
Requirements would impose an exorbitant cost on our dual court system.
HOW TO APPROACH REMOVAL ON EXAM:
P files suits against D in state court
Ps state court claim could have originally been filed in federal court under 1331 or
1332
If federal SMJ is based on 1331 then D can always remove
If federal SMJ is based on 1332 then 1441(b) says D can not remove if D is citizen of
the state in which the claim is brought (home state D can not remove)
The Securities Litigation Uniform Standards Act of 1998
1) preempt state securities class actions alleging fraud in the sales of securities, it
provides in other words, in such cases federal law displaces applicable state law. 2) security
fraud action based entirely on state law shall be removeable to the federal district court for the
district in which it is pending, 3) it orders dismissal of the removed class actions.
a) statute does two things: creates a federal defense to certain state law claims,
and then creates removal on that defense
1446Procedure for Removal:
1446(a)D who wants to remove shall file in District Court
signed motion pursuant rule 11
short & plain statement of the grounds for removal
copies of all papers served on D

1446(b)
notice of removal shall be filed within 30 days of D receipt of service

1446(c)
promptly after filing, the shall give a written notice to all parties and shall file a copy with
the clerk. Once the state court is notified, the state court automatically loses control.
1447
(c) motion to remand (for a defect in removal procedure)
1. a motion to remand may be made by
2. the motion must be made within 30 days of the 1446 filing of the notice
3. if district court lacks subject matter jx at any time it may be remanded to state court
4. orders remanding a case back to the state may require payment of expenses associated
with removal
5. state court shall proceed with the case once the district court clerk mials a certified copy
of the order of remand
(d) a order to remand is not appealable
(3) if after removal, the joins other that destroy subject matter jx (i.e. no more
complete diversity), the court may:

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1. deny the joinder


2. remand the case to state court

PERSONAL JURISDICTION

Power to bring a party before a court and bind them to the judgment

3 types of PJ:
in personam: power which the court has over D himself
Shaffer made the standards for in personam and quasi-in rem the same
in rem: jurisdiction to determine ownership of propertyclaim is limited to ownership of
the property itselfserves as constructive notice
quasi in rem: jurisdiction over an out of state D by seizing property at the outset of a
trial--jurisdiction is based on the presence of the property within jurisdictionuse of
property as a pretext to exercise over the D--had the court been able to obtain in
personamthe action would be taken against the person and not the property--(dispute
is limited to the value of the property--serves as constructive notice
Pennoyer v. Neff:
In personam jx cant exist against non residents not served in the state. No publication
In personam. Service for in Personam (1st case) is ineffective.
Every state possesses exclusive jx and sovereignty over persons and property within its
Territory; therefore, the courts of that state may enter a binding judgment against a nonresident only if he is personally served with process while within the state, if that property
Is attached before litigation begins.
a. to allow publication for in personam would be the constant instruments of fraud and
oppression
b. Publication ok for the seizure of property
c. personal jx could be rendered by voluntary appearance
PJ is about power. In order for the court to have power, it must bring the property in front
of court. This is a process called attachment. If it was attached it would have been in
rem, which would have made it sufficient to have service by pubication.
In regards to personal jx, notice and power become the same. In the act of acquiring
power, you are giving notice.
Tells us state constitutional powers: every State possesses exclusive jx and sovereignty
over persons within its territory.
Challenging Jx:
1. dont show up, b/c you dont recognize authority
2. attack judgment with another claim, b/c there is no personal Jx.
3. show up to court and make a motion. Dismiss on lack of jx. Rule 12 (b)
Also special appearance, a fiction that allows you to show up and only contest Jx.
Examining PJ:
Is there a long arm statute (thus statutory authority)
Is there traditional basis of PJ(presence, domicile, consent, agency)
1) Presence- Pennoyer v. Neff (see above)
Burnham v. Superior Court of Ca- Territoriality rule. In the state receiving
the benefits. You cant be induced to that state for service by fraud.
2) Consent- may make a special interference to object jx issues. A general appearance
gives consent because defends himself on the merits of the action

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1) express consent- express provision in a K (Carnival Cruise Lines)


Is the exercise of personal jurisdiction constitutional under Due Process Clause of the
14th Amendment?
PJ is established and limited by the Due process clause of the 14 th Amendment
[Pennoyer]
If the D is not present in forum state, he must have minimum contacts with the forum
such that the exercise of PJ will not offend traditional notions of fairplay and
substantial justice [International Shoe] (Rule)
a. Changes the rule in Pennoyer that presence within the territorial jx of a
court was a prerequisite to personally binding somebody
a. contacts will be determined by those who are authorized to act for it.
b. stressed that contacts must be systematic and continuous.
2 factors for minimum contacts:
purposeful availment- Has purposely availed himself to the benefits and protections of
the state?
1) assess whether the acts are purposeful or deliberate acts of the defendant directed at
the forum state, thus invoking the benefits.
Hanson v. Denckla: court has no business applying the law to a
transaction that took place before deceased moved into FL. Thus,
Court looked at facts. had no office in FL, no business there. The
relationship between the and state is a unilateral activity.
Worldwide VW: mere forseeability that the vehicle may one day
reach OK is not going to get you personal Jx. This not purposeful
availment. Thus, does not expect to be haled into court.
Also, in WWV, the court approved of Jx over two other , b/c they
intended to serve the U.S. market.
Asahi Metal Industry: Justice Oconner says that placing the
product into the stream of commerce is not enough to purposely
avail yourself. Must serve the market by advertisement,
designing the product for that market, sales agents in that
market
Justice Brennan: injecting goods into the stream of commerce
should suffice for Jx.
Justice Stevens: Also determine by the quantity.
2) Assess the frequency and regularity of s purposeful contacts
Were they systematic and continuous?
If so, should have reasonably expected to be haled into court there
3) assess the nature and quality of s contacts with the forum state.
Important where frequency of the contacts are isolated or
occasional
Intl Shoe- does the enjoy the benefits and protections of the laws
of that state by conducting his activities there?
McGee v. Intl Life Insur.- This case involved a single contract, but
it was strong since insurance industry is heavily regulated to public.
4) assess the reltationship between s cause of action and s
contacts with the forum state (NEXUS TEST)

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fair and substantial justice


5 factors for fairplay and substantial justice from [WWV]
--fairplay and substantial justice hinge on REASONABLENESS-burden on D of litigating in forum
could violate s due process rights to require him to defend in
the forum state.
Asahi: s from a different country
forum states interest (protecting its citizens)
regulating insurance business or activity on highways
i.e. if the explosion in WWV had injured an OK resident, it would
have been in the states interest to litigate.
P interest in effective relief
Efficient resolution of controversy (between states)
Shared interest of states (substantive social policy)
States want to avoid multiple lawsuits and conflicting
adjudications
--In Burger King: Once it has been decided that a purposefully
established minimum contacts within the forum State, these contacts may
be considered in light of fair play and substantial justice (Intl Shoe). A
strong showing of fair and substantial justice requires a lesser
showing of minimum contacts (Justice Brennan).
1)No Jx if when terms for a K have been obtained through fraud,
undue influence, or overweening bargaining power and application
would render litigation so gravely difficult and convenient that a party
will be deprived of its day in court.
2)Stevens dissent: no contacts. Did not make french fries in FL. Also
took a look at the inconvenience.
Traditional notions of fairplay and substantial justice are NOT offended if:

satisfy specific jurisdiction (case arises out of Ds contacts with the forum state,
contacts can be casual and isolated)
OR
satisfy general jurisdiction (case does not arise out of contacts BUT Ds contacts with
the forum state are continuous and systematic)

Relation of contacts to the claim:


Systematic & Continuous
Contacts

Is there something like


related to contacts
somewhere in the middle
here

Case arises out of Ds


contacts with the forum
state
Cases does not arise out
of Ds contacts with the
forum state

Casual & Isolated


Contacts
Maybe

Yes
(specific jurisdiction)
Maybe
No
(general jurisdiction)

Part of minimum contacts / fairplay analysis: Did D purposefully avail himself of the
privilege of conducting business in the forum state thus evoking the benefits and

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protections of its law(volitional, cognitive, beneficial contacts)--must not be uni-lateral


act of a 3rd party [Hanson v. Denckla]

Asahi split on purposeful availment:


[Brennan from Asahi]
1 factor for purposeful availment:
Reasonable Anticipation about stream of commerce can be called purposeful availment
[OConnor from Asahi]
Reasonable anticipation + any of 4 factors for purposeful availment:
Designing product for forum state
Advertising in forum state
Customer Service in the forum state
Control of the chain of distribution in forum state(distributors)

Does the D reasonably apprehend that they could be hauled before the courts of the
forum, mere foreseeability is not enough, there must be a reasonable apprehension that
this conduct may haul me before the courts of that forum [WWV]
When placing a product into the stream of commerce those activities must be
purposefully directed toward forum state [Asahi]
Internet: there will be PJ when tries to market directly to the state.
Must distinguish between informational websites and control over people

GENERAL Jx: when contacts are unrelated to the claim.


1) may sue where a party is domiciled
2) Washington Equipment: General Jx is unrelated to the corporations specific
activities in the state. General Jx focuses on whether the foreign corporations
general business activities are substantial and continuous. Foreign corp does not
consent to general personal jx by complying to states mandatory requirements for
doing business there.
3) Burnham: (transient jx) Jx based on physical presence comports with due process,
regardless of the s contacts with the forum state. Justified by Brennan in the
concurrence, because Burnham derived benefits of the state.
a) Scalia ignores Shaffer v. Heitner, which says you must have min. contacts
b) Decision based on tradition- courts have jx over those that have a physical
presence in their states. (Scalia)
c) Intl Shoe for situations in which is not in the state and Shaffer about in rem.
(Scalia)
d) Must be induced to come to the state voluntarily
GENERAL NOTES ON PJ:
Repeated purchases in a state are not as persuasive as repeated sales within a state for
establishing PJ.
For PJ in Federal District Court: Rule 4(k)(1)(a) saysif you have PJ within the state
forum, then you have PJ within the Federal District Court
What happens when a party does not comply with discovery?
-Insurance Corp. of Ireland: the failure to comply with jurisdictional-related discovery
may constitute implied consent to Jx.
- Rule 12 (h): a defense of a lack of Jx over the person is waived if not timely
timely raised in the answer or responsive pleading.
- it is waived or presumed that there is Jx when it is not challenged
- Personal Jx is a right that you can lose or waive

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- Hammond case says that refusal is an admission


Can forum selection clauses assert Jx?
-Carnival Cruise Line v. Shute: reasonable forum selection clauses are effective in
imposing jurisdiction.
- Brings back issue of consent from Pennoyer
- different than Burger King, b/c it chooses a
forum, not a law.
- Dissent: should be invalid, b/c they were not
freely bargained for, create
additional expense for one party, or deny one
party a remedy
Quasi In Rem Jx
Traditional Approach: in rem jx would allow you to proceed against the property.
Pennoyer v. Neff and Harris v. Balk.
Shaffer v. Heitner: applies in personam standard to quasi in remScalia: Pennoyer livesita
all about tradition vs. Brennan Pennoyer is deadits all about purposeful availment
Jx cannot be founded on property within a state unless there are sufficient
Contacts within the meaning of Intl shoe.
Attaching property will not create personal jx. The property is just a contact.
It must be fair to the for the court to assert jx over that property.
Appellants have nothing to do with the state of Delaware.
No attachment jurisdiction as seen in Pennoyer.
It is not saying that property has no effect, it is saying it must be related to the
claim.
Concurrence (Powell): has a difference of opinion on real property. Suggests real
property has really strong ties to the state. Follows a tradition of power.
Concurrence (Stevens): has an interest with notice. s had no notice that buying stock
would drag s into Delaware.
A state may have jurisdiction over a piece of property with little contacts if it is the only
state where suit may be brought.

Notice:
Mullane: Constitutionally, you must use a form of notice that is:
1. Reasonably calculated
2. Under the circumstanceswork from fact pattern. Does party give best effort?
3. To give actual notice to afford them an opportunity to present their objections.

Everything is contextual (under the circumstances)Key is to look for a better way to


give noticeIs there a better way?Probably. Then it seems that maybe this form of
notice wasnt reasonably calculated under the circumstances to give actual notice.
You know you are staring at a Mullane problem when there is any kind of service by
publication.

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3 ways to serve process (process is summons and a copy of complaint):


1. Personal Service (substituted service)
2. Service by mail
3. Service by publication
4. leaving the summons at defendants usual place of adobe with a person of suitable age
and discretion.

Classic Form of notice is hand deliverysatisfies Mullane


Substituted Service (spouse, partner)satisfies Mullane
Registered Mailsatisfies Mullane
Service must be made within 120 of filing suit FRCP 4(m)complaint can be dismissed
unless P can show good cause for lack of timely servicedoes not apply to foreign D
Service of a summons or filing a waiver of service is effective to establish jurisdiction over
the person of a defendant who is a party joined under Rule 14 or Rule 19 can only be
served at a place within a judicial district of the United States and not more than 100
miles from the place from which the summons issues

SERVICE OF PROCESS: FRCP 4:


P can request waiver of service:
Carrot--D can waive service in a timely fashion (timely waiver of service is 30 days from
date it was sent under FRCP 4(d)(2)(f): if service is waived then D has 60 days from time
waiver request was sent in order to answer or file motions
Stick--If D does not waive service: D must pay to serve (and D only gets the normal 20
days after service under FRCP 12(a)(1) to file an answer or motion)
FRCP 4(d)(1): A defendant who waives service does not waive any objection to venue or
jurisdiction of the court.
FRCP 4 (d)(3): If a waives service in a timely manner, he is not required to serve an answer to
the complaint for 60 days, whereas if he didnt, he must answer in 20 days.
FRCP 4 (d)(5): Costs to Defendant for denying waiver: (1) cost incurred in effectuating
service, (2) costs of any motion needed to collect service costs, including reasonable attorney fee
FRCP 4 (e)(1): If the does not waive service, may serve according to:
(1)The State law for service- may rely on the state law of either:
a. the state where district court (in which the action is being brought) is
located. Or
b. the state where service is being made
(2)the federal law for service- may choose any of following methods to serve
under federal law:
a. personal (actual hand delivery)
b. abode (no business service)
c. substitute service- to an authorized agent
FRCP 4(h) Service on Corporations/Associations
i. applicability- it applies to domestic or foreign corp., partnership, or unincorporated
assn subject to suit under a common name. A waiver of Service has not been
obtained and filed.
ii. service shall be effective when:
(1) State law is followed (as per Rule 4(e)(1)) or
(2) if is a foreign corp. and Rule 4(f) is applied or
(3) delivering a copy to an authorized general agent officer Manager

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FRCP 4(k) Territorial Limits of Effective Service that tell you there is Jx
1. Service of a summons of filing of a 4(e) waiver is sufficient to establish Personal Jx if:
(A) the forum district state allows it or
(B) the defendant is a joined party (as per Rule 14 and 19) and is served within
100 miles from where the summons was issued or
(C) the is subject to the Federal Interpleader 1335 or
(D)it is authorized by a U.S. statute
2. not subject to jurisdiction of any state: A waiver of service notice or service of
a summons is effective to establish personal jx if
(A) the is not subject to jx of any state and
(B) it is consistent with Constitution and laws of U.S. (i.e. minimum contacts)
(C) the claims arise under federal law.
FRCP 4(m) Time Limit for Service
1. service must be made w/in 120 days after filing complaint
2. if service not made in time case will either be:
(a) automatically dismissed (without prejudice)
(b) by service of a summons under this rule
3. if shows good cause , the court may extend time period
4. does not apply to foreign persons.
In general
FRCP 4(k) basically says that any means of trickery may be used within to serve within the
jurisdictionmay not use trickery to draw a D into a jurisdiction. If the requisites of personal jx
exist, proper service establishes jx.
Waiver of Service is ok only under (e) (f) (h), not the U.S. govt, infants or competence
Rule 4 provides for service by any individual who is not a party and is at least 18 years old.
If the does return wavier of service, the case proceeds as if process had been served. If does
not return the form within the time specified in the rule, the must proceed to have a summons
served more formally, using procedures set in Rule 4 (e)-(j)
-By waiving you give up any objections on the way it was served (Rule 12(b)(4)(5)

Long Arm Statutes:


A. Types
1. Whether Constitution allows it is Ok. (California long arm statute)
2. statutes w/ particular categories. Analyze the statute. Specific act.
3 combination of 1 & 2

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B. General Approach
1. Does the statute fall w/in the scope of the long arm?
a. On practice test, TA said to look @ each section and analyze it using
the facts of the case
b. Some statutes require you to have more contacts to allow service of
process than are currently required.
3. Do a minimum contacts test to see if it constitutional under Due Process

SPRING 2016 ROSENBLATT


Venue, Transfer & forum non conveniens:
Venue: operates on what geographic sub-division (judicial dist.) Tells you where in the state a
claim may be made.
Federal Venue Rules 1391:
Under 1391(a)with jx from 1332 (Diversity Jx)
Venue will be proper where:
The district where resides, if all reside in the same state. If you have lawsuit w/ 3s
from me 3 different cities from same state, venue can be in any city.
District court where substantial events or property is located
Or if there is nowhere else where they can be sued wherever there is personal Jx.
Under 1391(b)with jx from 1331 (FQ Jx and all else)
Always do B1 and B2, if neither applies, move onto B3
Venue will be proper where:
D resides, if all reside in the state
District court where substantial events occured or property is located
Or failing that in any jx where D may be found. Different than (a), because (a) says PJ.
Under 1391(c)venue for Inc.
Corporations reside in any district where PJ over them is proper at the commencement of
axn
If none available, look to the district with the most significant contacts
If there is no particular district in the sate in which the company has enough contacts for
PJ, but the state as a whole qualifies, the entire state is considered to have PJ
1391(d)an alien may be sued in any district
1391(e)- venue for an officer or employee of the U.S.
Where a resides (if all are in the same state).
Where substantial events or property exist
If no real property, where the lives
1391(f)- venue for a foreign state
Where substantial events or property
Where vessel or cargo is situtated
Wherever the agency is licensed to do business
General Notes
Venue can be waived such as the way it was done in Carnival Cruise Lines
Many states no longer allow you to have venue over property where it is located.

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You may challenge venue through a pre-answer motion [Rule 12 (b)(3)] on in answer, if
not it is waived.
When an action is removed from state court goes directly

3 levels
1) Statutory authorization for venue
a) 28 USC 1391
2) transfer--change of venue 1404 and 1406:
a) will be allowed in the interests of justice and can only change jx when it would
have been proper to originally file in this jx
Considerations for change of venue:
(1) location of parties or
(2) location of witnesses or
(3) location of evidence or
(4) familiarity of transferee jx with appropriate governing law
3) dismissal--forum non conveniens 1406, waiver of venue:
a) ordinarily a strong presumption in favor of the s choice of forum, which may be
be overcome only when the private and public interest factors clearly point to trial in the
alternative forum.
b) dismissal for forum non conveniens will be allowed where there is a forum that is
substantially more convenient and where P can still obtain adequate relief:
b) in the interests of justice)[Piper]Gilbert factors
Private Interests
(1) access to sources of proof or evidence
(2) availability of witnesses
(3) view premises
(4) other practical problems (convenience catch all). Try to make things
inexpensive
Public Interests
(1) local interest in adjudication
(2) governing law
(3) jury duty (burden)
(4) court congestion
(5) avoid conflict of laws
b) In Federal System:
i) Can only transfer to a federal court in which the action could have originally been
brought (THUS potential transfer court needs SMJ, PJ, & Venue)
2) forum non conveniens
a) Not a convenient forum for the
i) Correct court not in your court system
ii) Can not transfer to a different systemmust dismiss from forum non
conveniens and then re-file in the new forum
iii) Balance of factors on forum non conveniensnew forum must be substantially
more convenient and P must also be able to obtain adequate
b) It would be improper if there is a possibility of an unfavorable change in substantive
law
c) would not allow the dismissal if it provides no remedy

CA does not allow dismissal for forum non conveniens where P is a CA resident

Choice of law rules regarding transfer:


If a case is transferred under:
1404(a)Change of Venue (convenience)then the law of the transferring jx applies

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1406Transfer to cure defectsthen the law of the transferee jx applies


1631Transfer for want of jurisdictionthen the law of the transferee jx applies. Most
courts use if for subject matter Jx.

Changes of venue and forum non conveniens are generally tough standards because
courts want to give deference to Ps choice of forum

Forum non
conveniens

Venue & transfer

Federal

Dismissed and refile in Foreign


country

Moved between
Districts

State

Dismissed and refile another State or


country

Moved between
County

Erie Doctrine:

which law applies in a federal diversity case?

1938: FRCP enacted


1938: [Erie] in general Federal District Courts are use federal procedural law and state
substantive law in diversity cases
Federal Law vs. State Law (in div jx cases)
A rule is considered substantive if it has a substantial effect upon the eventual outcome
of the case
Consideration of whether a law is procedural / substantive is done by looking at impact
at the outset of the case
By the time you get to Hannaeasier standard--all a law has to be is arguably
procedural
State of limitations are routinely held to be substantive lawSOL=substantive
Cases:
Swift v. Tyson:
Rules of Decision Act
Federal courts do not need to follow all state case law. Should follow the general law.
Would adopt only the local usages of the state, not judicial interpretations of the common law.
Law should not be one thing in Rome, and one thing in Athens.
Erie:
Federal courts must apply state substantive law of state in which it is sitting
Federal courts must choose between state and federal procedural law:
To avoid forum shopping
To avoid inequitable administration of justice
Reasons for overruling Swift:
No broad uniformity of the law
Grave administration of the law
It introduced discrimination for the out-of-stater
Declared unconstitutional, since it authorized federal judges to make law in areas in

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Which the federal govt has no delegated powers. There was an invasion of states rights.
Increase in forum shopping
Incorporation of Tennessee, create diversity to get out of state court to get into
federal court so they wont abide to state laws
that may be detrimental to them
What if there is a transfer? If a transfer is a proper forum, then the law of the transferor forum
governs. It does not matter who asks for the transfer.
What state law should be followed?
Follow existing state law precedent w/out making creative predictions of how it might be
treated in future federal cases.
Apply as it is announced or how it would be announced
Judges cannot make up state law, but entitled to make an educated judgment on what
Rule the state Supreme Court would apply to the case today, rather than merely parroting
what the rule was when the last case on point was decided.
B/C of conflict of laws, even though it was brought in New York, the court applied PA law.
Each state has a body of law called conflict of laws which specify the circumstances in
which the courts of that state should follow laws of other jx, such the states, federal, or
foreign law.
There is no general federal common law
Concurrence by Justice Reed- No unconstitutionality.
York:

When it is unclear whether a state rule is substantive or proceduralfederal courts use


outcome determinative test(Hannahs arguably procedural standard changes this).
Assuming it was procedural, the court looked at whether there would be different
outcome.
This distinction between substantive or procedural is evaluated from the perspective of
the outset of the lawsuit
Procedural and substantive are immaterial. They are labels that are manipulative.
Does it significantly effect litigation to ignore state law.
Going to federal court should not result in substantially different result.
After this ruling, Ragan, Cohen, Benhardt, Woods adopted the state law over federal

Byrd:
3 part balancing test
1. Is state interest bound up in the rights and duties of that state
1. how integral is it?
if the state law in question is integrally bound up with the definition of the statecreated substantive rights and obligations of the parties, then the state interest in
the federal court applying this state law is high
2. will state legislature say you are destroying our entire scheme by having jury decide?
if YES then state law appliesIf NO then on to #2
2. then balance state and federal interests (always one federal interest uniformity)
1. Is it an essential characteristic of the federal system.
3. outcome determinative- in this case, jury or judge would do not guarantee a different
outcome in the case.
Says York does not make much sense by always using state law

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Hannah:
2 part test (outlined below)
HANNAH FRAMEWORK:
Hanna Prt II 2072:
State Statute v. Federal Rule (FRCP)

Hanna Prt I 1652:


State Statute v. Federal common
law

1 )Is Federal Rule Constitutional


(Sibach Test)
a) Is it Arguably Procedural?
(if it is in the gray area are between
substantive and procedural then the
Fed. Rule applies)

Would applying federal rule of


decision violate twin policies of Erie

2) Does it violate the Rules Enabling


Act (REA) 2072
(a) is it a rule of practice or
procedure
(b) i.e. Does it abridge, enlarge, or
modify a substantive right
(is the Fed. Rule intended to effect
peoples lives outside of court).

2) To avoid inequitable
administration of justice
(equal protection - will applying a
different rule in federal court result
in discrimination against citizens in
the state in cases where there is
diversity?)

if satisfied, it wins, if not turn to twin


policies test.
Do not forget to look at 2nd part and
write why it occurs. Do not write it
is federal rule, so it wins. That
equals an F. there will be times
where law is abridged, etc.

1) To discourage forum shopping


(would applying a different rule than
federal rule in federal court
encourage forum shopping?)

** If the fed. rule would violate one


of the two twin policies of Erie-some jx would say just apply the
state rule-- BUT Gasperini says:
even if the state law makes it
through the Hanna framework
then before you apply that state
procedural law you still have to
run it through the Byrd balancing
test:

Byrd: 3 part balancing test


1) is state interest bound up in the rights and duties of that state
if YES then state law appliesIf NO then on to #2
2) then look at federal interests (always one uniformity)
3) even if outcome determinative you still have to BALANCE state vs. federal interest
GENERAL NOTES on Eire:

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Congress has the power to pass procedural rules for federal courts, under Article 3 and
the necessary and proper clause from Article 1 8.
If a federal RULE is controlling and Constitutional then it must be applied under the
Supremacy Clause (Article 6)
Substantive laws
Primary decision making
Would it cause unfair administration of the law
Is it bound up (Byrd)
If there is a federal statute and state statute, the federal statute prevails, because of
supremacy clause.
Burlington: involves a state statue and federal rule
Court applies REA Test
Gasperini: Looked at the modified-determination test, then the Byrd test.
General Notes:
Once we decide what state law applies, we need to know which state law applies and
which law applies?
Cerification- federal court certifies question in the state supreme court and asks
for a response. The state law has to permit it though
Abstention- fed issue and state issue in same case. Let state issue get solved
and then come back and figure out what is left at federal level.

DUE PROCESS
Every procedure is subject to examination under the Due Process Clause
Largest problem of provisional remedies
1. most common is preliminary injunction
2. temporary restraining order- you get @ the beginning of lawsuit.

Fuentes: In order to comply with procedural due process, notice and an opportunity to be hard must be
provided prior to seizure of any protected interst.
Due process requires notice be provided prior to the deprivation of life, liberty or property
by adjudication. A pre-attachment opportunity to be heard is consistent with procedural
due process.
Want to give a fair hearing before seizing somebodys property
Due process restraints are not limited to necessities.
There are some prejudgment attachments that are allowed
1. necessary to secure an important governmental or general public interest
a. public safety- contaminated, etc. hardship to the public
b. bank seizures
2. need for very prompt action
a. jurisdictional purposes
3. state had kept strict control over its monopoly of legitimate force: the person
initiating the seizure has been a government official responsible for determining,
under the standards of a narrowly drawn statute.
Overmyer Co. Frick Co.- it could be waived by the parties in their K
It applies to placing liens on properties as well.

PLEADING

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Common Law Pleading- must plead specifically to the COA asking Kings court to hear the case
Common law courts- limited in remedies and mostly $ damages
Equity courts- complex dispute, resolution problems
a. if you could get adequate relief from law courts, cant use equity courts
b. could get specific relief against a person
1. injunctions and specific performance
Code Pleading- instead of complicated COAs, pleading just plead facts
Require more precision and detail than is required in notice pleading jurisdictions.
Notice Pleading
Haddle v. Garrison: Introduces Rule 12(b)(6): permits a to move to dismiss a complaint on
the grounds that the has failed to state a claim upon which relief can be granted.
TIME LIMITS FOR PLEADING:
FRCP 12(a)(1)(a)--From the receipt of service, D has 20 days to file an answer or a
motion
FRCP 12(a)(1)(b)--if D waives service then D has 60 days from the date the waiver
request was sent to file an answer or a motion
FRCP 12(a)(4)(A)-- Following initial 12(b) motionan answer, if still required, must be
filed within 10 days following notice of the courts decision on that initial 12(b) motion

The Complaint: FRCP 8(a)


3 parts:
1. Short and plain statement of the ground upon which the courts jx depends
2. Short and plain statement of the claim showing that the pleader is entitled to relief
3. A demand for judgment for the relief the pleader seeks
In Leatherman, the court ruled that there is no need for a heightened pleading
standard for civil rights cases. Court looks at FRCP 8(a)(2).
Heightened pleadings for individuals are still lawful, but not for municipal defendants.
Pleading with particularity: FRCP 9
disfavored claims--certain special matters (7 of them set out in FRCP 9--including fraud
etc.) as set forth in FRCP 9, must be plead with particularity (includes answer)
Olsen v. Pratt & Whitney Aircraft: Fraud must be pleaded with specific particularity (9B)
1) detail the statementsthat contends are fraudulent, 2) identify speaker, 3)
state where and when the statementswere made and 4) explain why the
statements are fraudelent
2) Olsen fell short of specifying what was said, or the terms of the advice,
counsel, and recommendations.
3) s who do not plead specifically are given an opportunity to amend.
4) fraud is a disfavored claim. They are serious and time consuming.
Qualified Immunity:
Shultea v. Wood: 5th circuit tried to require heightened pleading for qualified immunity
complaints in LeathermanSupreme Court said nope FRCP 9 specifies circumstances
for pleading with particularityNext case, Shulteaok, P file a complaint, D file an
answer with the words qualified immunity in it, THEN P must do a reply (granted under
FRCP 7) in which he replies with particularity to Ds qualified immunity

Courts generally must allow at least one amendment of the complaint

Motion to Dismiss: FRCP 12(b)--(in a state court called demurrer)so what motion
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FRCP 12(a)--From the receipt of service, D has 20 days to file an answer or a motionif
D waives service then D has 60 days from the date the waiver request was sent to file an
answer or a motion
Defenses against the validity of the complaint: as set out in FRCP 12(b)
1) SMJ
2) PJ
3) Venue (improper)dismissal or transfer
4) Insufficient process
5) Insufficient service of process
6) Failure to state a claim
7) Failure to join an indispensable party
Consolidated defense 12(g): all 12(b) motions must be made before pleadings. When
there is no response required, they may be made in trial.
1) a party can make a consolidated defense in order to join motions under this
rule with any other motions available to the
2) If the motion is made, any available Rule 12(b) defense that are omitted will be
deemed to be waived (unless allowed by 12h)

FRCP 12(h):
(1) # 2-5 must be put in your first rule 12(b) motionor they are waived
a. lack of personal jx
b. improper venue
c. insufficiency of process
d. insufficiency of service
(2) # 6 & 7 may be raised anytime through the end of trial (dont have to be in the initial rule
12 response)
a. failure to state a valid claim
b. failure to join a 3rd party
(3) # 1 SMJ is NEVER waivedcan be anytime

Following initial 12(b) motionanswer, if still required, must come within 10 days
following notice of the courts decision on initial 12(b) motion
If P serves D out of state via long arm statute then the time to answer is covered by that
states rule

Answer:

From the receipt of serviceD has 20 days to file an answer or a motionif D waives
service then D has 60 days from the date the waiver request was sent to file an answer
or a motion
Following initial 12(b) motionanswer, if still required, must come within 10 days
following notice of the courts decision on initial 12(b) motion

FRCP 8(b)--An answer must contain:


a. Admission, denials, or lack of knowledge
1.Zielenski: A general denial will not be valid if any of the allegations being denied have been
admitted by both parties to be true. Should have made a specific denial
2. deny only that you dispute.
b. Defenses
c. Counterclaim (CA. calls this a cross-complaint)
d. types of denials:
1. specfic-applying only to parts of the pleading
2. complete- applying to entire complaint
3. general- applying to the entire complaint, except paragraphs specified.

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FRCP 8(d)--Anything that is not denied in answer is assumed to be admittedanything I


dont know is assumed to be a denial
Answer must contain specific denial or admission of EACH declaration of the complaint,
or a general denial with specific admissions of the declarations in the complaint
FRCP 8(c)--Answer must contain all affirmative defenses
1. Layman: When raises a new matter, not yet an issue in the case, it should be plead
as an affirmative defense.
a. Easements are affirmative defenses that should be set forth in the answer.

REPLY: FRCP 7(a)--(a request to the court for an order)

FRCP 12(a)(2)--Time frame for a reply (mandatory for cross-claims) is 20 days form the
service of the answer or 20 days from the Court orderAmendments & Supplemental

Pleadings

FRCP 15(a)--A party may amend pleading once as a matter or right, without a motion,
anytime before a responsive pleading is filed
When an answer does not require a responsive filing--D may amend his answer within 20
days after answer is filed FRCP 15(a)
Otherwiseamendment can only be made by written permission of adverse party or by
leave of court:

Leave of court to amend shall be freely given when justice so requires unless 1 of the 5 following:
undue delay (may not be enough on its own)
bad faith or dilatory motive
repeated failure to cure deficiencies by prior amendments
undue prejudice to opposing parties (most important)
futility of amendment

A response to an amended pleading shall come in the time remaining for the response to
the original pleading or within 10 days after filing of the amended pleading whichever is
longer

Amendment to conform to the evidence:

FRCP 15(b)--Pleadings do not matter as long as there is express or implied consent to


the issuesAND amendment can be done anytime (even after trial)
Whole point is to avoid unfair surprise
FRCP 15(c)Relation Back
When a amended claim arises out of the conduct, transaction or occurrence then the
amended pleading relates back to the date of the original pleading
Whole point is to overcome SOL
FRCP 15(c)(3) When adding a new party--relation back is only allowed when:
A) New party has received notice and wont cause prejudice against new
party
AND
B) New party knew or should have within the original time for service of
process (120 days) that but for a mistake they would have been served

In CADoe ruleset out unnamed Doe parties can relate back up to 3 years when
you name them

When adding new claims against existing Ds: you can only do so when narrowing the
cause of action (ex: general personal injury to specific malpractice)

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Can not go from specific to general because new claim does not stem from same
conduct, transaction, or occurrencewho point is to avoid unfair surprise as a result of
not being on notice

Adding new claims going from general to specific does not violate the general purpose of
SOLsReasons for SOL:
To give repose (peace from having to dig shit up from your distant past)
To avoid stale evidence
To avoid uncertainty
To promote diligence
To avoid applying new standards to old situations

FRCP 15(d)when new stuff happens after the pleadingthey can come in under the
same standard as 15(a)reasonable notice given and terms are just (i.e. no unjust
surprise)

Sanctions for Frivolous Pleadings


FRCP 11: (since the year of our lord 1993): serves a restraint on attorneys
Lawyer must sign pleadings
Purpose: Imposes an affirmative duty to act in good faith
EFFECT OF SIGNATURE: Lawyer who signs (files or advocates) a pleading is attesting
that to the best of his knowledge information and belief that based upon a reasonable
inquiry under the circumstances that the following are true:
1. The document is not present for an improper purpose (harassment)
2. Claims are warranted by existing law or a non-frivolous argument for change in law or
establishment of new law
3. Claims have or are likely to have evidentiary support (Business Guides)
A represented party may be sanctioned in addition to or instead of its attorney for
violating the Rule 11 requirement that all information in signed documents submitted
to the court be reasonably accurate.
4. Denials or Factual contentions are warranted by the evidence or are based on lack of
information

With regard to reasonable inquirybad faith is not required, attorney can have a good
faith belief that a reasonable attorney wouldnt have

safe-harbor rule:
before filing a FRCP 11 motionit must be served on the adverse party 21 days prior to
filing it with the courtin that 21 days, adverse party may amend withdraw complaint

Purpose of sanction is to deter bad faith conduct in the future. It does not always have
to be monetary. In addition, costs may be given to the other attorneys.

FRCP 11: Pre-1993


No safe harbor ruleand if you won a FRCP 11 motion then court had to impose
mandatory sanction for attorney fees (paid to other side)NOW court may impose
sanctions for attorney fees payable to the court (or the other side)
Loadstar method: court may reduce the attorneys fees to be awarded in FRCP 11
sanction to a reasonable leveltotally discretionary

General Notes:
Parties () cant be sanctioned under (b)(2)
Law may be sanctioned as well.
Courts can sanction you w/out motion.

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Cant file Rule 11 for threats not on paper

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