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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.)
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)
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.
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
CHALLENGES TO SMJ:
Direct attacks:
Direct attacks are ones that take place during the lawsuit including appeal
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.
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:
THEREFORE:
Courts will not have supplemental jurisdiction under claims where :
P tries to add: (P / D)
under: 19
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20
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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:
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)
(P /
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D)
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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
If a diversity case has more than 1 defendant, all s must remove case together.
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:
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
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)
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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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
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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.
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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)
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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
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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
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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
Federal
Moved between
Districts
State
Moved between
County
Erie Doctrine:
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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:
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)
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?)
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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
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
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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
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)
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.
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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