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CIVIL PROCEDURE OUTLINE—FALL 2006

3 Levels of Analysis in Civ. Pro.:

(1) Social/Economic/Political Context, (2) General Principles, (3) Rules
Structuring of System:
∗ Federal: Fed. District Courts → Ct. of Appeals → US S. Ct.
(each state) (regional) cert
∗ State: Small Claims/Dist. Cts./Cir. Ct. → Int. Ct. App. → Haw. S. Ct.
cert
State System:
Trial Courts: Court of original jurisdiction (where you file claims)
∗ Circuit Court – main trial court – court of general subject matter jurisdiction
∗ District Court – up to $20,000, quick, appealable and often no attorneys
∗ Small Claims Court – no right of appeal, and usually no attorneys – rough and tough justice.

Appeals from HI State Trial Courts go to HI S. Ct.

∗ If important enough, the Supreme Court will take it
∗ If it doesn’t want to hear it → ICA – Intermediate Ct. Ap.
∗ And, if party doesn’t like ICA’s decision, can file a writ of certiorari for S. Ct. to hear case
∗ If it is an important federal issue can apply to the US Supreme Court with a writ of certiorari
if don’t like the decision of the Hawaii Supreme Court.

Federal System:
∗ District Courts in each state (sometimes more than one.)
∗ Regional Court of Appeals – jurisdiction over several states (13 total districts)
∗ Apply for a writ of certiorari to the US Supreme Court – final authority for all decisions

Federal Court More broad procedurally

Limited jurisdiction State Court
Supposedly more neutral Often times more convenient
Judges appointed for life Judge and jury may be more sympathetic to
Smaller case loads → speedier trials the π
Often will be more familiar to you

FRCP RULE 11 [FRIVOLOUS FILINGS]

“Stop, think, investigate, research”—STIR

∗ All papers presented to the court must be formed after reasonable inquiry, (1) must not be for
any improper purpose, (2) must be warranted by existing law or by nonfrivolous argument
for an extension, modification or reversal of law, (3) must have evidentiary support or will
likely have evidentiary support after discovery and (4) denials must be warranted by
evidence or reasonably based on lack of information or belief.
∗ If found to be in violation, Court MAY impose sanctions.

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∗ Purpose – to deter frivolous filings not to shift fees or to punish.

∗ History – before Rule 11 never used because had to prove an attorney acted in evil state of
mind and there had to be evidence of subjective bad faith. (1938-1993)
∗ Rule 11 then changed – after 1993 too harsh “court SHALL” impose sanctions.
∗ Now Rule 11 – Court MAY impose sanctions if lawyer found to be in violation.
Rule 11(a): Attorney (or party, if no counsel) must sign form.

Rule 11(b): Signer is certifying whatever is being signed is formed after a reasonable inquiry (or
if there isn’t enough time, there will be a reasonable inquiry performed by looking at the facts)
∗ You can also argue that the common law should be changed or if the S. Ct. got it wrong
o You can look at dissenting opinions, to minority opinions, to law review articles, or
consultation w/other attnys to see if you can argue that the law should be changed
∗ b(3 & 4): Certifying that the allegations either have or are likely to have evidentiary support
o If you sign something but later learn that the filing is no longer supported by facts of
law, you’re okay if you don’t do anything, but if you later advocate, then you’re
liable!

Rule 11(c): The ct. is not obligated to bring impose sanctions (sanctions must be appropriate,
and do not have to be monetary)
∗ Law firms, parties, non-singing opposing attny can be held accountable for Rule 11 sanctions
if they are responsible for the violation
∗ Rule 11 is initiated by bringing the Rule 11 motion to the attn of opposing counsel. They
have 21 days to amend it (safe harbor provision!), correct it or withdraw it
o The rec’v attny can always amend under Rule 15 as a matter of course
o If rec’v attny chooses to do nothing, sending party can file motion w/ct.
o The Ct. can raise a Rule 11 motion at any time before the settlement of the case
∗ Purpose of sanction: pg. 34; it’s a deterrent, not a punishment. The principle is deterrence
either by that same attny or by others; compensation is not the function of the rule

Rule 11(d): This does not apply to discovery; discovery has own sanctions
Bridget v. Diesel Services:
∗ Attorney brought for rule 11 violations because opposing counsel failed to exhaust other
remedies. Didn’t intend to do anything wrong–was careless. Judge rules not to impose
sanctions because the action has been deterred. (also didn’t want to chill Title VII)
Business Guides v. Chromatic Communications: Π sues Δ for copyright infringement because Π
implants seeds into its guides to see if anyone copied any entries. Π retracts 3/10 of the seeds
and the ct.’s law clerk checks and finds that 9/10 of the seeds are correct. Π finds out the reason
for the mistake that caused a discrepancy in seeds that were wrong, and magistrate accepts that
reason. However, magistrate sanctioned both Π and attnys because even if at the time the attys
didn’t have time to do full research, once they rec’d notice from the law clerk, they didn’t do
anything and said that a defense of “coincidence,” made at oral arguments and sanctionable
because of the “later advocating” part of Rule 11(b)(3 & 4).
Christian v. Mattel: Π hires Hicks as attny to represent her in a copyright infringement case. Π
makes dolls that she contends were infringed on by Mattel. In meeting, Mattel wants to show

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Hicks evidence that the doll in question was made by Mattel 6 yrs. before Π’s doll was created.
Hicks rejects offer and throws doll across room. Hicks declined to file claim. Hicks sanctioned.

However, there must be a signature and filing for there to be Rule 11 sanctions, unless it
qualifies under the “later advocating” argument under Rule 11(b)(3 & 4).

∗ What was the problem w/the District Ct.’s fashioning of the sanction?
o The sanctions were mostly on behavior; and some of that, was in the discovery phase
o Rule 11(d) does not cover Discovery; perhaps reprehensible, but the ct. says that it
looks like the d. ct. was pee’vd by the attny and threw in $500k
∗ The Ninth Cir. says that hicks isn’t going to get away scott free because in addition to Rule
11, the ct. can impose sanctions under 29 USC § 1927 and the court’s inherent authority!
o The ct. has the authority to regulate its processes to control everyone that comes
before it
o Subjective bad faith: When you can tell in the head and heart of the actor that there’s
bad faith; again, a very hard standard to prove, but in this instance, the ct. seems to be
hinting that the ct.’s inherent authority can be used

PLEADINGS: FRCP RULE 8 [SHORT AND PLAIN PLEADINGS]

General Rules of Pleading (and tension w/Rule 11)

FRCP Rule 8. General Rules of Pleading

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an
original/counter/cross-/third-party claim, shall
(1) Have a short & plain statement of the grounds upon which the court’s jurisdiction
depends, unless the court already has jurisdiction
(2) A short & plain statement of the claim showing that the pleader is entitled to relief
∗ Section 1: Applies to the jurisdiction (Federal jurisdiction: citizens of diff. states w/amount
alleges over $75k, or a question of Federal law)
∗ Section 2: Short & plain statement of claim showing pleader’s entitled to relief
o No requirement that the facts supporting claim need to be in complaint
o Form 9 (pg. 172) is a sufficient complaint
 If you follow this form, you have filed a sufficient complaint
 Claim missing: why or how the defendant is negligent; therefore, it’s not
necessary to have a facts supporting claim to show negligence (notice
pleading: just enough to give Δ notice)
Tension Between Rule 8(a) Filings and Rule 11:
∗ The Federal Courts are trying to help the Π ease to get into Federal Court, but, problem:
frivolousness of cases arise. So, the response is RULE 11. But, to prevent frivolous cases,
the lawyer needs to be more attentive to research
∗ You should have the facts at your disposal, but you may not want to plead it at the start. If
you do state all the facts, you give away your legal theory and may be confined to it when
later disclosure reveals evidence that contradicts or weakens the theory.

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∗ FRCP 8 was adopted in 1933 to allow more access to Federal courts. Context: the Great
Depression. There was a great gap b/ the wealthy and not wealthy. Public sense that rich
individuals and institutions control system. No access to redress process.
∗ FRCP 11 adopted in 1983 to limit frivolous actions. Context was the 1980’s: post-war
superpower; economic prosperity; perceptions of explosive increases in litigation
Bell v. Novick Transfer:
∗ This case was removed from State Court to Federal Court
o There must be a federal court issue that can remove the case
o But, there’s one exception: If a claim could have been filed in the Federal court
(diversity of citizenship, issue of fed. law) but Π chooses State court, the Δ can
remove the case to the Federal Court
∗ According to court, the complaint is adequate, since all you need is a short & plain statement
showing pleader is entitled to relief

JURISDICTION: INTRODUCTION

Federal Court Jurisdiction Outline:

⌐ SMJ ¬ ⌐ Personal ¬
Diversity FQ Notice Power
§ 1332 1. U.S.C. § 1331 (narrow) 1. FRCP 4 1. LA Statute (§ 634-35)
2. Art III § 2 (broad) 2. DP a. Transaction of buss.
w/in State
b. Comm. of tortuous act w/in State
2. DP
a. Δ’s contact w/State
b. Convenience

∗ For a court to have jurisdiction, must fulfill subject matter and personal jurisdiction.
Subject matter is basically whether you go federal or state court. The hard part is having
personal jurisdiction over someone.

PERSONAL JURISDICTION [POWER]: PENNOYER v. NEFF

Traditional Basis for Personal Jurisdiction

Facts: A basic judgment in favor of Mitchell (from prior case, Mitchell v. Neff) where Neff
served by publication and fails to show. Default judgment entered for Mitchell. Neff acquires
land, Mitchell has a writ of execution entered, executing the final judgment. Sheriff gets Neff’s
land to fulfill the writ, sells land to Pennoyer (funds to Mitchell). Neff reappears 9 yrs later and
sues Pennoyer [collateral attack1] in Fed. Ct. Neff argues that the seizure of property was invalid
because of improper notice, and therefore, the ct. of OR lacked jurisdiction over Neff.

1
Suit to determine whether the first suit was valid; collateral attacks are allowed because due process is a
Constitutional mandate—very important! Can only file a collateral attack for issues w/due process

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Social/Economic/Political Background:
∗ Taking place during industrialization. Also reconstruction period following Civil War;
Southern States were trying to rebuild. 1876 disputed election ended in a stale mate.
Congress could not resolve conflict, so there was a compromise: the South said the North can
have their president if the North pulls troops from the South. It was in this setting that S. Ct.
began looking at the Due Process Clause. S. Ct. sends message to Southern States that they
won’t interfere with what they’re doing, essentially giving Southern States power w/in their
selves, thereby mitigating some of the angers of the Southern States

Rule—Traditional Basis for Personal Jurisdiction [Pennoyer Rule DP]:

(1) Consent, (2) Physical Presence, (3) Domicile , (4) Property Attached (when suit is filed)
∗ Animating principle of this rule is Due Process: the State possess exclusive jurisdiction over
persons or property w/in the territory; source from the 14th Amendment

Philosophical/Jurisprudential Concepts: State Sovereignty:

∗ Every State possesses exclusive jurisdiction & sovereignty over persons & property w/in its
territory
∗ No State can exert jurisdiction or authority over persons or property in other States

Connection to Due Process:

∗ 14th amendment due process requires that state have both subject matter and personal
jurisdiction to give a binding rule over a person. It would be a constitutional violation by the
court if it didn’t have subject matter and personal jurisdiction.
∗ However, Constitution says no State shall deprive any “person”—people/individuals get
protection, not States.

Shortfalling of Rules:
∗ Many multi state problems (marriages and corporations—under Pennoyer if one spouse
leaves state, court couldn’t grant divorce because there was no jurisdiction. Likewise
citizens might not be able to sue a corporation in another state.) In response to short fallings,
the court makes exceptions for marriages and out of state partnerships.
∗ People can still get out of trouble by leaving state to avoid being served etc.

PERSONAL JURISDICTION [POWER]: PAWLOSKI v. HESS

Expanding State Power for Personal Jurisdiction

Facts: Π-Mass. resident and Δ-non-Mass. resident get into a car accident; Π sues to recover
damages for personal injuries under the claim that Δ negligently and wantonly drove a motor
vehicle on a public highway in Mass. Δ appeared for purposes of contesting jurisdiction and
moved to dismiss on ground that the service of process would deprive him of his property w/out
due process in violation of the 14th Amendment. Court wants to grant state court jurisdictional
reach, but tries to fit under the framework of Pennoyer.

Trying to Fit Within the Framework of Pennoyer:

∗ The ct. needs a category to fit under the Pennoyer rule. The consent is implied!

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The Power to Exclude:

∗ Ct. cites Kane v. New Jersey (which stated that the State has the power to bar people from
coming into the state w/out signing a K where if a person causes damages, the State can
appoint service) to stop Hess at its borders. The problem/contradiction is that this violates
the Privileges & Immunities Clause of the Constitution (Section II Art. IV), which safeguards
individual citizens’ rights to pass through other states. So there’s no legal justification! But,
the ct. relies on the unfairness that would arise if Δ can take advantage of State’s highways
then get away without paying for damages form an accident just because Δ’s a non-resident.

Quid Pro Quo/Reciprocity:

∗ Mass. statute stated that Δ’s conduct was the operation of a motor vehicle on a Mass.
highway, and by doing this, he rec’d the benefits of the rights/privileges of using a Mass.
highway (by getting the protection of Mass. law, ability to sue in Mass. courts, police
assistance, ambulances). Therefore, by driving onto a Mass. State Highway, he “accepted”
these benefits, even though Δ did not implicitly agree to the Mass. statute, the ct. found it
implicit by his actions. Driving on a Mass. State Highway is a privilege!
∗ Also a matter of convenience; injured party w/in the state, can bring in witnesses and the
burden on Δ not great because insurance could cover legal costs

Big Picture:
∗ The Pennoyer Rule was not as easily applicable as interstate commerce increased. The
notion of jurisdictional exclusivity falls on the wayside after Hess. Multiple states can have
jurisdiction now. (break down of major principals of Pennoyer) In Pennoyer, Δ had to be
within State. Now, Δ only had to use the benefits of the State, but doesn’t necessarily have to
be in the State and the State can still have jurisdiction. To achieve a result we all feel is
appropriate (holding Δ accountable for an injury he might cause in the state—idea of
reciprocity), the court has torched the rules of Pennoyer.

PERSONAL JURISDICTION [POWER]: INT’L SHOE v. WASHINGTON

Due Process Requires Looking at Convenience and Reciprocity (Expand State PJ)

Facts: Δ is a corporation (corp. is a legal fiction/creation by the State). Δ had salesmen based in
WA and technically the sale would be made in STL and would be shipped free-on-board to WA.
This was set up so the corp. would not do business in WA; also evades the Pennoyer rule of
physical presence w/in the state (for PJ purposes). Commissioner served delinquency notice,
then served notice by mail to corp. There was no formal service of process in WA.

Rule:
∗ Jurisdiction no longer strictly based on presence or consent. Due Process satisfied if Δ has
(1) Minimum contacts w/ the state such that the maintenance of the suit does not offend
(2) Traditional notions of fair play and substantial justice.”

Minimum contacts:
∗ The Δ need only make one contact w/someone in the State
∗ There is nothing said about whether the Δ has to be in the State

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Traditional notions of fair play & substantial justice:

∗ Ct. looks at convenience and reciprocity:
∗ Convenience: Look at convenience of Δ on trial away from home and also for the Π
∗ Reciprocity: If the corp. enjoys the benefits of the state while conducting business, it has the
reciprocal obligation to the State to respond to the suit

Principle:
∗ Breaking down Pennoyer rule that Due Process means state sovereignty. Due Process Clause
protects person from the overreaching power of the State, but in doing so, the Int’l Shoe
standards empowers the State ct. judges to increase state ct. reach over people. Expanded
State ct. jurisdictional reach.

PERSONAL JURISDICTION [POWER]: WWVW v. WOODSON

Due Process Requires Looking at Convenience and Reciprocity (Contract State PJ)

Facts: Π purchased a new car from Seaway VW in NY. While moving to AZ, a car strikes
theirs in Okla. causing a fire that severely burned Πs, so they bring a products-liability action
against Δ’s (including NY-based WWVW & Seaway and Audi/National Importer). Δ wants the
case in federal court so they move to dismiss regional distributor and retail dealer (Seaway and
WW) citing lack of personal jurisdiction.
∗ After motion for dismissal refused, Δ’s bring writ of mandamus (separate action against
judge allowed when the claim is that the court is exceeding its jurisdiction). Ct. finds lack of
jurisdiction based on the fact that the contact with the forum state was not purposeful contact.

Social/Economic/Political Background:
∗ Justice White was a conservative and was concerned about the economy and about business
and law impeding businesses. 1980 brought the Cold War, a US economy in recession and
interest rates for mortgages through the roof.

Rule [White’s Stream of Commerce Theory (SOC)]:

A. Δ’s Contacts with State/(“State B. Convenience
Sovereignty”)
Minimum Contacts Rule: Δ injected product 1. Primary Factor: Inconvenience to Δ
(1) purposefully into the SOC and (2) has 2. Forum’s States interest in adjudicating
expectation (knowledge) of consumption that 3. Convenience to Π
the product in the forum state 4. General Efficiency
∗ Court went back to Pennoyer and Hess and
found #s 1-3
Giving meaning to these factors that are truly significant
∗ Minimum contacts: Reciprocity/Quid Pro Quo must be found to go on to the next tier
o Quid Pro Quo – From Int’l Shoe (majority will narrow the quid pro quo) → Now
requires that contact be Purposefully to give clear notice to Δ
o Even indirect conduct through a chain of distribution is enough.
∗ This is a two step analysis! If there’s enough reciprocity, then you ask if there’s convenience

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Jurisprudential Concepts:
∗ Affirms International Shoe (due process functions to protect Δ from undue burdens) and also
Pennoyer (and so states don’t reach beyond their territorial boundaries as coequal
sovereigns).
∗ White uses wrong concept of due process for state sovereignty. State sovereignty guides
state vs. state, and due process guides individuals vs. state.
∗ Idea of giving notice—predictability, that the Δ can be haled into court of the forum state
o This allows Δ to conduct his actions accordingly—if he doesn’t want to go into the
state, or he can hire insurance and pass on the costs to the consumers
o Notice to Δ ahead of time that he can be haled into forum state, and take precaution

Brennan Dissent:
∗ Brennan wants to keep broad jurisdictional reach of the State courts (concerned about the
injured Π)—formulation changes in Asahi
∗ Brennan’s test: Enough to satisfy tier A (Δ’s Contacts with State) w/out the knowledge,
intent, or expectation that products consumed in forum state

Lawyering Strategy:
∗ Δs had no complete diversity of citizenship (Audi-Germany, VW-DTW, WWVW-NY, and
Seaway-NY), preventing Δs from removing case to Fed. Ct. in Tulsa (less partial jury pool).
So Δs Audi & VW want knock out NY-based Δs to move case to Fed. Ct. Thus, strategy for
Δs is that they need a strict personal jurisdiction doctrine, and therefore ask the ct. to put a
purposeful element into the minimum contacts rule.

PERSONAL JURISDICTION [POWER]: ASAHI METALS v. SUPERIOR CT.

Due Process Now + Purposeful Direction (but, Split S. Ct. Ruling)

Facts: Person injures himself riding on Honda bike, and wife killed. Files products liability
action naming Cheng Shin Rubber as Δ. Cheng Shin files cross-complaint seeking
indemnification from Asashi Metals, manufacturer of tube valve assembly. Asahi sells parts to
Cheng Shin, Cheng Shin sells roughly 20% to Calif. Chen Shin says that Asahi knew that its
assemblies would end up in Calif (significant b/c then Asahi would be subject to PJ of Calif. ct.
according to White’s SOC). Asashi moved to dismiss for lack of PJ. Tr. Ct. of Calif. rules that
Calif. does have jurisdiction, Asahi files writ of mandamus.

Rule (O’Connor, Powell, Rehnquist, Scalia):

∗ O’Connor’s Rule: White’s Rule + (Substantial Connection w/Forum State through
Purposeful Direction)—Contracts start jurisdiction!
∗ Purposeful direction is:
(1) Designing the product for the market in the Forum State
(2) Advertising in the Forum State
(3) Establishing channels for providing regular advice to consumers in the Forum State
(4) Marketing the product through a distributor who has agreed to serve as the sales agent in
the Forum State

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∗ If minimum contacts found to be met, still need to look at Convenience tier of Due Process.
IF inconvenience too high, to exert jurisdiction would be unreasonable (burden on the Δ too
high and its 2 international companies so state interest and π interests are low). (unanimous
decision). Look at (1) burden on Δ (most important), (2) interest of the forum state, and (3)
Π’s interests.

Dissent (Brennan, White, Marshall, Blackmun):

∗ Brennan shifts his position to White’s position here to create a 4-4 split in the S. Ct.—he
objects to a ruling he vehemently objected to in Int’l Shoe! Brennan characterizes
O’Connor’s purposeful direction test as a retreat from WWVW.

How to Argue the SOC Theory:

∗ If you want to use O’Connor’s test (good for ∆ s), argue that the trend of the
Court is shifting towards narrowing PJ. Note: 3 supporters of Brennan’s/White’s formulation
have been replaced (Souter, Thomas, and Breyer). Only 1 Justice in O’Connor’s camp is
replaced (Powell replaced by Kennedy). Only 1 Justice of the O’Connor camp is still there:
Scalia. Overall composition of the court is moving to the right!
∗ If you want to use the more liberal formulation (good for Πs), point out that the
vote in Asahi was a tie, and WWVW has not been overruled yet.

PERSONAL JURISDICTION [POWER]: FRCP RULE (4)(k)(1)(A) & 12(b)(2)

FRCP (4)(k)(1)(A): Service of a summons of filing a waiver of service is effective to establish

jurisdiction over the person of a Δ who could be subjected to the jurisdiction of a ct. of general
jurisdiction in the state in which the district ct. is located
∗ Fed. Ct. can assert personal jurisdiction if proper service is made if the State ct. can assert
personal jurisdiction
∗ Then takes us to the Long Arm Statute and Due Process
∗ Pretend you’re the state court, taking us right back to the state court analysis

FRCP 12(b)(2): Dismiss for lack of personal jurisdiction

∗ Defenses can be made by motion right at outset: Lack of personal jurisdiction over a person
∗ Rule 12(b)(2) allows a motion to dismiss for lack of personal jurisdiction
∗ Once a person files a motion to dismiss under Rule 12(b)(2), there’s two ways Π can proceed
to defeat the motion:
(1) Can have a full evidentiary hearing to defeat this motion (Π has to prove by a
preponderance of evidence that the ct. has jurisdiction)
(2) More common approach: Π simply responds by affidavits (Π has to show a prima facie
case, where the Π needs to show that there’s evidence, e.g., affidavits, documents, that
the case should go to trial)
∗ Even if the ct. says there is PJ, the Π still has to prove the evidence at trial
∗ Therefore, strategic significance of defeating Δ’s motion to dismiss; since most cases don’t
go to trial. If for Π, you want to try to win it here on the motion to dismiss!

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PERSONAL JURISDICTION [POWER]: BURGER KING v. RUDZEWICZ

Even if case initiated by Fed. Ct., the PJ Analysis is the SAME! (Look to K)

Facts: Δ with partner applied to BK for a franchise in DTW. Even before final agreements
signed w/BK, parties began to disagree over issues. Signing final agreements, Δ personally
obligated himself to $1M payments. When rent payments fell behind, BK first negotiated, but
then sued in Fed. D. Ct. in FL, invoking both diversity and trademark jurisdiction. Δ challenged
the PJ claim. [Not a mass manufactured products case, so no SOC analysis]

Rule:
∗ To figure out minimum contacts for K cases look at the terms of the K where it was
negotiated and where the results and activities were. Then look to convenience.
∗ Recognizes two tiers of due process and but takes due process two tiers (minimum contacts
and convenience) fused into one. Convenience factors can sometimes justify jurisdiction
when there is lesser showing of minimum contacts then would otherwise be required. Don’t
need to first meet minimum contacts to look at convenience. Look at the two factors together
to decide whether or not due process is met.

Social/Economic/Political Background:
∗ Brennan’s thinking about the future, where an individual needs protection and where there
might not be significant contacts (so even if min. contacts isn’t met, you still have
convenience)
∗ Giving Π the golden nuggets so people can argue this position later!

PERSONAL JURISDICTION [POWER]: ZIPPO v. ZIPPO DOT COM

Internet Jurisdiction: Look at three types of websites for analysis

Facts: Manufacturer of “Zippy” tobacco lighters brought action alleging trademark dilution,
infringement and false designation under the Lanham Act against computer news service Zippo
Dot Com, located in CA. Dot Com’s websites contain info about the company, ads, and an
application for its news service. Dot Com’s contacts with PA subscribers occurred exclusively
over the internet, w/no offices, employees or agents in PA. Dot Com also entered into
agreements w/7 PA ISPs to permit subscribers to access Dot Com’s news service. Dot Com
moved to dismiss for lack of PJ under Rule 12(b)(2).

Rule:
∗ Due process for minimum contacts analysis for internet sites look at the type of site:
(1) Business site: Knowing and repeated transmissions of computer files over the internet,
pursuant through a K w/individuals
(2) Interactive site: Complicated setting where the user can exchange info w/host computer
(3) Passive site: Anyone can just jump on the website, no interactivity
∗ Ct. says Zippo fits a business site part of the spectrum and therefore satisfies the
purposefulness and reciprocity of minimum contacts

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What about Individual Consumers?

∗ In Pres-Kap, Δs would only log on to comp. located in FL and mail payments to FL.
However, the Ct. said FL cts. had no jurisdiction. Ct. is saying to be careful when the Δ is an
individual and its contacts are through the individual.
∗ If it’s an individual consumer, it’s too big a burden. So something more, a higher degree of
purposefulness and reciprocity is required!

PERSONAL JURISDICTION [POWER]: HAWAII LONG ARM STATUTE

HRS §§ 634-35 and -36

∗ Single-contact Statute (only one contact is needed)

∗ Acts:
(1) Transaction of business w/in the State
(2) Commission of a tortuous act w/in the State
∗ If the court has jurisdiction, then you serve process under HRS § 634-36 (lifted from Hess:
service by certified mail w/return receipt)
∗ There must be affidavit to the ct. to show that you really did everything you could before
service by publication
∗ Look at due process after LA!

PERSONAL JURISDICTION [POWER]: SHAW v. NORTH AMERICAN TITLE

Hawaii PJ: Long Arm Statute Analysis is the good law from this case

Facts: HI resident in process of refinancing Calif. property. Asks bank to mail checks payable
to him so he can use it as leverage in getting better credit rating Bank contracts with Δ. Π waits
a year and sends checks to Ohio where they are rejected because Δ had Π’s bank acct. closed and
failed to tell Π. Upon being told, Δ reissues checks but sends them directly to creditors and takes
away leverage for Π who is trying to refinance his Kauai home. Δ files motion to dismiss for
lack of personal jurisdiction FRCP 12(b)(2).

Rule [Good Law Part]:

∗ HRS § 634-35 – HI Long Arm Statue: personal jurisdiction can be exerted if the Δ (1)
transacted business within the state or (2) committed a tortuous act within the state.
(1) Narrow view of business transaction. Letters and faxes not enough to constitute to
transacting business
(2) Expansive view of tortuous act. Tort occurs when and where the actual injury occurs.
Not about when Δ acts but looking at the Π and when Π injured and even if tort happened
in different state, if injury occurred in state = enough.

Count Inconsistencies [Bad Law Part]:

∗ Ct. finds there is sufficient contacts, but the ct. doesn’t articulate the convenience analysis

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∗ Uses Calder Effects Test [however, this is not related to the Long Arm Statute!!!] for due
process. The Effects Test says that there’s min. contacts if Δ has no contacts with forum
state but communicates with the Π in the forum state w/the intention to defame. However,
the Ct. says that the Effects Test would apply even outside the intentional torts setting (ct.
really overstepping bounds here). Effects Test should be isolated to intentional torts

Jurisprudential concept:
∗ Occurring at a time when Hawaii (both laws and cts.) were inhospitable to outside
businesses, which might have played a role in narrowing view of buss. transactions

PERSONAL JURISDICTION [NOTICE]: FRCP RULE 4

Waiver of Service of Process

FRCP Rule 4(c)(2): Who can serve? Any person not a party, 18+ can serve process

FRCP Rule 4(d): Waiver of service (stick and carrot). [In HI Follow HRS §§ 634-36]
∗ The idea here is to make the whole system more efficient
∗ (1) Waiving service of process means you don’t have to go through whole service of process
∗ (2) Stick (of the Stick & Carrot): Duty to avoid the cost of serving because the Δ would incur
the cost of service as per § d(2) [unless you can show good cause]
o You send this notice of transmission by first class mail—it’s very easy
∗ (3) Carrot (of the Stick & Carrot): If you serve the complaint formally, Δ has 20 days to
answer; but if you waive service of process without requiring service of process, Δ has 60
days (get 40 extra days)

FRCP Rule 4(e): This is where the action is if you have to serve process formally.
∗ (1) Where there’s no waiver, you can serve by the laws of the State in which the Fed. ct. sits
∗ (2) You can use the Federal provision for service of process—3 methods of service of
process under Federal Rule
o Server must be careful that the req. are met to serve Δ’s at place of residence
o Service on an agent authorized to receive service of process by appointment or by law
(language in response to Hess)

FRCP Rule 4(m)

∗ Π cannot keep the notice in pocket for four months (in Fed. Ct.) or six months (in State Ct.)

FRCP Rule 4(k)

∗ Marries power and notice together: Service of summons/waiver and notice if done properly
establishes jurisdiction of the person (as long as it comports w/State jurisdictional analysis)

Note: If in Federal Court, you may use the procedure of the state court for power and for notice –
so use HRS § 634-36. (4(e)(1)(a)). And if Δ is in another state you can choose which state statues
you want to use.

PERSONAL JURS. [NOTICE]: MALLANE v. CENTRAL HANOVER BANK

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Use the method that is reasonably calculated

Facts:
∗ Mullane appointed to represent beneficiaries of trust. Mullane & Vaughn suing Central
Hanover Bank to settle the beneficiaries accounts, which would wipe out any claims. The
beneficiaries themselves have a direct stake in the trust. We know that the NY Ct. would
have power over the beneficiaries because there is purposeful contacts of the beneficiaries
with the forum state (e.g., reciprocity of benefits from investing in a NY trust). However, the
NY Banking Statute authorizes notice by service by publication.

Cost-Benefit Analysis:
∗ If the Ct. creates too stringent a rule for notice, the service of process would become too
expensive for the trust fund. Likewise, beneficiaries have the right to know what is
happening with their property and the opportunity to be heard; right to have notice and given
the chance to contest before deprived of any life liberty or property by the state (DP!).

What Due Process Requires:

∗ The Ct. says that Due Process requires:
o That the adjudication must be preceded before the deprivation
o There must be an opportunity for notice for Δ to contest

Rule:
∗ Notice must be reasonably calculated under all circumstances to apprise the parties
∗ Reasonableness of notice→ constitutional validity of notice: 1) reasonably certain to inform
those affected or 2) the form chosen is not substantially less likely to bring home notice than
other of the feasible and customary substitutes. (in this case, mail was determined to be
reasonable)
o “Persons Missing or Unknown”: Court approves publication to this cat. of people
because it would be futile to put them on notice (cost to much to send out a PI to find
the names and addresses to track these people down—not economically feasible)
o Beneficiaries whose interests are conjectural or future (e.g., beneficiaries of
beneficiaries). Cost benefit analysis shows to be too burdensome
o Present beneficiaries of known address: Publication is not sufficient for Due Process
purposes because publication is not reasonably calculated under all the circumstances
to apprise the parties of their rights and give an opportunity to be heard. A mailing
would be a more effective means—mass mailing to each of the beneficiaries would
not be too much of a burden

Note: Recent Case: Jones v. Flowers

∗ Embraces Mullane. However, takes an additional step:
o Assuming the Π takes reasonable steps to give notice, Jones says but if the Π finds
out that this Δ does not actually give notice and the Δ is easily ascertainable and has
an address known, the Π must then take additional steps to actually serve the process

SMJ [FEDERAL QUESTION]: BACKGROUND

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FRCP Rule 11(h)(3), USC § 1331, and Const. Art III § 2

Art III § 2: The judicial power [of the US] shall extend to all cases … arising under … the laws
of the U.S. [Speaks to the judicial power of the US]

28 U.S.C. § 1331 FQ: The Fed. Dist. Ct. shall have original jurisdiction or all civil actions
arising under the … laws of the U.S. [Limitation to the Fed. D. Cts.]

FRCP Rule 12(h)(3): The issue of SMJ can be raised whenever (and also by the cts.)

∗ If you’re the Δ, you can get an early determination from the ct. to dismiss via Rule 12(b)
∗ If you’re the Π, you can get an early determination from the ct. to dismiss via Rule 12(d)

SMJ [FEDERAL QUESTION]: LOUISVILLE RR v. MOTTLEY

The “Mottley Rule” or the “Well Pleaded Complaint”

Facts: Mottleys rec’v lifetime railroad passes as a result of a settlement with R.R. Years later,
R.R.s were bribing public officials w/free passes, so Congress outlawed them. Thus, the
Mottleys filed suit in Fed. Ct. w/FQ as the basis of their SMJ. FQ wasn’t an issue in Tr. Ct. and
Mottleys win. R.R. appeals, and S. Ct. says they’ll consider the finding of jurisdiction of lower
ct. (not saying they’ll consider the case on its merits).

Rule—Mottley Rule/Well Pleaded Complaint Rule:

∗ A suit arises under the Constitution and laws of the US only when Π’s statement of his own
“claim” shows that it is based upon the laws of the Constitution.

Big Picture:
∗ The basis for Fed. claim cannot be insubstantial or small because Fed. cases should be about
big things. The Ct. acknowledges that Fed. law will come up, but wants the State cts. to
resolve it. Narrow the interpretation of “arising under” for fed. district ct. because doesn’t
want to open the flood gates. The same “arising under” also bars those cases that have a
Federal ingredient (e.g., federal land grants, checks) because the real controversy is not about
federal law

The S. Ct.’s Broad “Arising Under” Interpretation:

∗ US S. Ct. knows that the D. Ct. lacked jurisdiction, so how is it that the S. Ct. has jurisdiction
to hear the appeal? Because the S. Ct. can interpret “arising under” in Constitution Art. III §
2 more broader than the “arising under” in 28 USC § 1331. The S. Ct. interpreted the 28
USC § 1331 language very narrowly, limiting the Fed. District Ct.
∗ As to Art III § 2, as long as there’s some “itty-bitty” element of Federal law involved, that’s
enough to give the S. Ct. FQ jurisdiction
∗ This way, they can pick and choose the cases they wanted based on writ of certiorari and
would not be worried about opening the floodgates to litigation

SMJ [DIVERSITY OF CITIZENSHIP]: BACKGROUND

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28 USC § 1332

Subsection A:
∗ US S. Ct. can have any diversity of citizenship, but D. Ct. level needs complete diversity
∗ $75k is simply an allegation as to amt.
(1) Citizens of diff. states: Need to be citizens of diff. states
(2) US Citizen whose a citizen of a State vs. a citizen of a foreign state
(3) citizens of diff. States and in which citizens or subjects of a foreign state are add’l parties
(4) a foreign state as Π and citizens of a State or of diff. States

Subsection B:
∗ If Π alleges $75k and rec’v less than $75k, then Π needs to pay

Subsection C:
∗ Where corp. incorporated in the State and principal place of business counts for
diversity
∗ Therefore, corps. can have citizenships in 2 diff. states
∗ Tests: Where’s the Corporate Nerve Center and where is the Corporation’s main place of
buss. activities
∗ Must argue both sides to make the best argument!
∗ Note: Partnerships/Ass’n are not considered corp.; therefore, citizen of each person in
that partnership/ass’n is relevant. If it’s a limited partnership, the citizen of the limited
partnership also matter!

Note:
∗ FRCP Rule 12(h)(3) says whenever the ct. lacks SMJ jurisdiction, the court can dismiss

SUBJECT MATTER JURISDICTION: CHALLENGING THE CT.’S SMJ

FRPC Rule 12(b)(1) and 12(h)(3)

FRCP Rule 12(b)(1): Dismiss for lack of subject matter jurisdiction, which can take place at any
time according to FRCP Rule 12(h)(3).

SMJ [DIVERSITY OF CITIZENSHIP]: MAS v. PERRY

To change domiciliary, need different residence + intent to live there

Facts: Πs were grad. assistants at LSU (in LA) for 1 yr. 9 months. Shortly after being married,
they returned to LSU to resume grad. work duties. They rent an apt. from Δ, a LA citizen. Πs
sued Δ on discovery that Π had been watching them via 2-way mirrors during their marriage. Δ
made an oral motion to dismiss for lack of jurisdiction, claiming Πs failed to prove diversity of
citizenship among the parties w/respect to Mrs. Mas.

Rule:
∗ Citizenship is measure at the time of filing the complaint; changes later don’t count.
Definition of a citizen:

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∗ Domicile (definition of citizenship is domicile): Two components

(1) Where the parties resides (residence)
(2) + the parties intent to have this be their permanent place of residency (intent to remain)
∗ In order to change Domicile:
(1) Must take up a different residence
(2) + change intent to live there
∗ Until you make this change, you remain a domiciliary of your former residence

SMJ [DIVERSITY OF CITIZENSHIP]: MACHERAS v. CENTER ART GALL.

Corp. has 2 principal places of business and DOE Δs in Fed. Ct. when Case Removed

Facts: Π filed complaint against Δ in Fed. Ct. on basis of diversity jurisdiction. Three reasons
listed by Δs to dismiss motion to dismiss for SMJ: (1) No amount in controversy listed; (2) Πs
failed to allege the principal place of business; (3) DOE Δs that would destroy diversity.

Rule:
∗ Where corp. incorporated in the State and principal place of business counts for diversity
∗ The presence of Π entering DOE Δs in a Fed. Ct. complaint does not automatically destroy
diversity of citizenship because of fairness.
o Ct. doesn’t want to restrict Πs to State courts: Δs would get too many options and the
Πs would be too restricted; Πs would have to file in State court and would not be able
to file in Fed. Ct. However, if Δ wanted to file in Fed. court, then the Δ could remove
to Fed. Ct. Fairness issue.
o Court warns: If one of the Δs turns out to be named and that destroys diversity of
citizenship, then the court lacks diversity of citizenship! And, if it’s after the statute
of limitations, then it’s too bad.

SUPPLEMENTAL JURISDICTION: Rule 18(a) and 28 USC 1367

Ancillary Jurisdiction Pendant Jurisdiction

FQ/Diversity Fed Q

Π Δ Π Δ
State Law

Δz → ΔtpΔ

∗ Ancillary jurisdiction: If court has jurisdiction over the original claim, the federal court can
exercise jurisdiction over counterclaims, cross claims and 3 party claims ancillary to the
original actions but which lack necessary federal elements on its own.
∗ Pendant jurisdiction: If there is one federal claim and one state claim, one π and one Δ with
clear federal question – federal court can hear state claim too if can show that the state claim
is pendant to the federal claim.

Rule 18(a):

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∗ If one party has one claim, then the party may join as many claims as necessary
∗ The rule does not authorize SMJ, so one must find SMJ in the issues

28 USC § 1367(a):
∗ Addresses the ct.’s power to hear supplemental jurisdictional: Power of the district ct. to
have supplemental jurisdiction over all other claims that are so related to the claims in the
action within such original jurisdiction that they form part of the same case or controversy
under Article III of the US constitution

28 USC § 1367(c):
∗ Addresses the ct.’s discretion to hear supplemental jurisdictional: ct. can refuse
supplemental jurisdiction if (1) novel/complex state law issue; (2) state claim is the real
action; (3) all bona fide federal claims are tossed; (4) board catch all for exceptional
circumstances for compelling reasons.

28 USC § 1367(d):
∗ After the date of dismissal from supplemental jurisdiction, party has 30 days to refile in
State ct., even if the State of Limitations has expired

SUPPLEMENTAL JURISDICTION: JIN v. MINISTRY OF STATE

Look at Ct.’s power and discretion!

Facts: Δs are entities related to the Chinese gov’t who are Falun Gong practitioners in the US.
Chinese gov’t perceived Falun Gong as a threat to state security, stability & economic dev. and
decides to publish a series of negative articles about their practice in state-run newspapers as
well as limited-access news event where several Falun Gong practitioners set themselves on fire.
Video distributed in US, Πs file suit under the RICO claim and join defamation to their RICO
claim. Δs moves to dismiss defamation claim pursuant to FRCP 12(b)(1) & 12(b)(6).

Rule:
(1) Determine power: common nucleus of operative facts test (see if there is a common nucleus
of operative facts between the federal and state claim); doesn’t matter if claims are linked
together. If yes, then:
(2) Apply discretion: Use 28 USC § 1367. Ct. can refuse supplemental jurisdiction if (1)
novel/complex state law issue; (2) state claim is the real action; (3) all bona fide federal
claims are tossed; (4) board catch all for exceptional circumstances for compelling reasons.

Jurisprudential Concept:
∗ Ct. not worried about opening floodgates of litigation w/the power aspect because of the
discretion aspect.

CHANGING FORUMS: REMOVAL [28 USC § 1441]

28 USC § 1441(a):
∗ Removal goes only one way: State Ct. → Fed. Ct.
∗ Removal can be by Δ or Δs. This is important because all Δs MUST join in the removal

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o Cts. interpreted extra “s” as all Δs, making it more difficult for Δ to remove
∗ If there is a DOE Δ, it doesn’t necessarily mean that the case cannot be removed (however,
DOE Δ must later turn out to be a citizen of diversity!)

28 USC § 1441(b):
∗ When you have in State ct. a FQ “Arising Under” claim, even w/out complete diversity, the
case can be removed
∗ “Any other such action” = diversity of citizenship. Removable only if none of the parties
joined as Δs is a citizen of the state in which the action is brought
o The whole purpose of diversity jurisdiction is fairness to the out-of-state Δ; therefore,
the purpose of diversity wouldn’t be served if a case was filed in CA state ct. and was
removed to a HI State ct.!
28 USC § 1446(a):
∗ If you want to remove, just need to state grounds for removal. Once your file
removal, it immediately gets removed (cts. not involved). This filing is pursuant to Rule 11
sanctions; therefore, if you remove and there’s no SMJ, you can get sanctioned.

28 USC § 1446(b):
∗ Δ has 30 days to file removal after service of summons or otherwise [a time bomb]
o The pleading does not need to be an amended complaint. It can be “any other paper”
that states that there’s SMJ. This would start the 30-day clock
o Also, if you give Δ a copy of the complaint, but will serve properly later, the running
of the 30 days starts when the copy is given

28 USC § 1446(c):
∗ Π can file a motion for remand to get case back in State ct. Two strands for motion:
(1) Defect in motion itself (e.g., petition filed too late, petition doesn’t have all Δs)
(2) Fed. ct. lacks SMJ
∗ If the case is remanded, then as a general manner, Π entitled to attorney’s fees, and Δ cannot
contest the remand
28 USC § 1447:
∗ Motion to remand the case on the basis of any defect other than a lack of SMJ must be made
w/in 30 days after the filing of the notice of removal under § 1446 (a).
∗ If at any time before final judgment, it appears that the district ct. lacks SMJ, the case shall
be remanded.

REMOVAL: CATERPILLAR v. LEWIS

Finality, efficiency, and economy of denying remand from removal

Facts: Π sues Caterpillar (based in DL, principle place of buss. in IL) and Whayne Supply Co.
(KY Corp. w/principal place of buss. in KY). MA-based Insurance Co. intervened as a Π.
Lewis enters into settlement agreement w/Caterpillar. Caterpillar, learning of this settlement,
filed a notice of removal on the grounds of diversity of citizenship. Π objects to removal and
moved to remand b/c Liberty Mutual had yet to settle its claim against Whayne, which would
have defeated diversity of citizenship.

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Incorrect Lower Ct. Ruling:

∗ Fed. District Ct. denies remand, but judge was wrong. Δ clearly removed wrongfully, the
court wrongfully denied the motion to remand

Rule:
∗ Even though the removal was wrong, there were overriding considerations: Finality,
efficiency, and economy
∗ Even though SMJ did not exist at time of removal, there was SMJ at time of trial, which was
enough
∗ SMJ is most important, grounded in due process (as per Pennoyer)

Bigger Picture:
∗ There might be something going on w/the facts that more than meets the eye
∗ This was an anomaly type of case, short of this, you’d most likely be sanctioned

PROVISIONAL REMEDIES: INJUNCTIONS & TROs [Rule 65 & 28 USC § 1291-2]

∗ Orders by the court to have Δ do/not do something. Rare, but important because they allow
the court to change the behavior of the Δ.
∗ Three types of provisional remedy (provisional: ct. issues an order pending final outcome of
the case—pending the final outcome on the merits)
(1) Preliminary injunction/TRO
(2) Attachment: prejudgment attachment (e.g., Pennoyer) for purposes of acquiring
jurisdiction (also replevin falls into this category): which refers to the attachment of
personal property)
(3) Garnishment: where the Π gets the ct. to order the seize of Δ’s property which is held
in the hands of the 3rd person that is paid over to the Π

FRCP Rule 65:

∗ TRO can be issued to the court without notice to the other side (can be issued ex parte)
∗ TRO lasts 10 day—gives other side time to dissolve TRO (esp. if no notice or hearing given)
∗ Next stage preliminary injunction: the preliminary injunction practically the whole ballgame
o The preliminary injunction hearing is like a mini-trial
o Under 65(a)(2), essentially what happens in the preliminary injunctions gets carried
forward to the trial. However, whatever happens on a preliminary injunction is it—
case usually settles after that
∗ What is the standard for the court to grant that provisional remedy?
o Standard for granting a TRO and a preliminary injunction is the same

28 USC § 1291:
∗ Determines that Ap. Ct. has jurisdiction over all final decisions of a case (must be no more
claims and no more parties for lower ct. to adjudicate on)

28 USC § 1292(a)(1):

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∗ Ct. Ap. shall have jurisdiction (these are exceptions)

o Interlocutory orders (where there is no final judgment) by the D. Ct. (read:
injunctions)
∗ With a TRO, you cannot appeal because § 1292(a)(1) speaks to injunctions, whereas a TRO
is just a TRO

28 USC § 1292(b):
∗ If there’s no final judgment (e.g., the case is still going on) and you want to appeal a
discovery motion or a denial for motion to dismiss for lack of personal jurisdiction, a D. Ct.
can certify an interlocutory appeal when there’s a substantial ground of difference of opinion
of controlling question of law (law can go one way or the other), and an immediate appeal
might end the case
o If a D. Ct. judge certifies an interlocutory appeal, the Ct. Ap. in its discretion can
permit the appeal (you still have to convince the Ct. Ap. that it should take the
appeal)!
∗ You request an interlocutory appeal denied by the Tr. Ct., how can you still get the Ct. Ap. to
hear the court? File a Writ of Mandamus
PROVISIONAL REMEDIES—PRELIM. INJUNCTIONS: INGLIS v. ITT
Sliding Scale b/w likelihood success on merits and severity of irreparable harm

Facts: Antitrust violation w/below cost pricing by Δ. Δ defended itself by saying its meeting the
competition. Π files for preliminary injunction. D. Ct. denies injunction. Appeals under 28
USC § 1292 (a)(1) to Ct. Ap.

Rules for Determining Preliminary Injunction:

Test 1 [by D. Ct.—(1), (3), and (4) still good law]:
(1) Π will suffer irreparable injury
(2) Π will probably (by a preponderance of the evidence = more than 50%) prevail on the merits
(3) In balancing the equities, the Δs will not be harmed more than Π is helped by the injunction
(4) Public interest

Test 2 [by Ct. Ap.] Sliding scale (if Π have more harm, then need show less likelihood of success
on merits, and if have less harm, then need show more likelihood success on the merits):
(1) Seesaw combination of probable success and possibility of irreparable injury
(2) In balancing the equities, the Δs
will not be harmed more than Π
is helped by the injunction Likelihood Severity of
(3) Public interest success on Irreparable
merits Harm
PROVISIONAL REMEDIES—
INJUNCTIONS & TROs:
ANZAI v. GANNETT
Hawaii extension of Preliminary
Injunctions

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Facts: Preliminary injunction motion to stop termination of the Joint Operating Agreement,
which would have allowed Star-Bulletin to shut down, creating a one-town newspaper. Star-
Bulletin owners not losing money, but they wanted to make money elsewhere. Π’s legal claim
was antitrust, conspiracy to monopolize.

Standard for Review [Application of the Inglis Sliding Standard scale]:

(1) Likelihood of the moving party’s success on the merits (must be a fair chance—not 0%
or 1%)!
(2) Possibility of irreparable injury to the moving party if relief is not granted
(3) Extend to which the balance of hardships favors the respective parties
(4) Whether the public interest will be advanced
Also goes to show the sliding scale of (1) and (2)

PROCEDURAL DUE PROCESS: FUENTES v. SHEVIN

Attempt to Balance An Otherwise Imbalanced Relationship

Facts: Π purchased stove and service policy on an installment sales K (w/monthly payments).
She stopped payment after issue w/servicing of stove. Firestone said Π breached K. Firestone
obtains a writ of replevin2, where all they had to do was submit a writ to eh clerk of the small
claims ct. (w/no judge review). With writ of replevin, Firestone goes to Πs home and seizes
stove. Firestone posts the requisite bond (twice the amt.).

Process Values [Important]:

∗ Dignity: give people a chance to have their voice heard; if they’re going to lose something,
have charges against them, they should have a chance to keep their dignity
∗ Participation: Idea that the legal system is really about a state exercising its power to take
things away/impose obligation, but before that happens, it’s important that you be able to
participate fairly and fully in that process
∗ Public welfare: Often people will want to access the legal system not just for themselves but
for the greater public good (e.g., challenging prison conditions/environmental degradation);
use of the system that allows a person to make a claim that has a larger public benefit
∗ Entitlement: What an individual is entitled to under the law
∗ All these public values relate to one other thing that’s implicit in Fuentes: lawyers are needed
o As officers of the court, in the interest of justice (the second prong of being a lawyer)
that lawyers need to represent all parts of society!

Rule:
∗ Hearing required at a meaningful time and in a meaningful manner. Must be granted at a
time when deprivation can still be prevented. Process requires that hearing needs to happen
before the deprivation! Security bond not a substitute for prior hearing by a neutral official.

Deprivation of Property Requires a Hearing [Right to be Heard]:

∗ Firestone is not prevented from taking property before the judgment; they just need to put a
writ of replevin before a judge (putting in facts in an affidavit, a statement under oath)

2
A pre-judgment attachment

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o Judge would have to review it and make a judgment, after hearing Fuente’s side

Exceptions to the Rule:

∗ Opinion also says that there are some situations where seizures are still okay [exceptions]:
o When there’s a larger public interest as opposed to a smaller public interest
o Something bad is going to happen, e.g., bank closure or contaminated food
o Gov’t official responsible for determining necessary and justification of the seizure
o Big disasters

After Fuentes Ruling:

∗ Holding of Fuentes: Before there’s a deprivation of property there must be prior hearing
o However, Mitchell v. WT Grant (pg. 324, note 3); says that there actually isn’t a
requirement of a prior hearing (says that Fuentes never really held that). Mitchell
held that if there are a lot of safeguards to assure that there’s no error made or that
there could be a correction really quickly, it’s okay for a State to take property
without a prior hearing. A direct overruling over Fuentes on a fabricated rationale!
o Following Mitchell, the cts have tended to say that the prior hearing is not significant
if not required
o Matthews v. Eldridge (pg. 325, note 4(a)): Ct. says that there are 3 practices of
maintaining due process—efficiency does become one of the factors
 In Matthews, you always cite the three practices that are affected
∗ However, everyone looks to Fuentes to see the process values for why we have procedure

MODERN PLEADING:
EX. OF COMPLAINTS; FACTUAL & LEGAL SUFFICIENCY OF COMPLAINT

Elements of a Complaint:
(1) Opening, (2) Jurisdiction, (3) Parties, (4) Circumstances (Not Facts!), (5) Claim, (6) Prayer

FRCP Rule 8. Claims for Relief (requires three things):

(1) Statement of courts jurisdiction
(2) Short plain statement of the claim showing pleader is entitled to relief (facts not needed
just plain statement of claim)
(3) Demand for judgment

FRCP Rule 12(b)(6) to challenge the sufficiency of the complaint: Motion to dismiss for failure
to state a claim.
∗ Informational Sufficiency: Complaint has to be enough to give notice to the Δ as to what’s
going on (usually ct. will grant motion to dismiss, but will give Π time to amend) (e.g.,
Macheras where complaint was not sufficient even on its face and judge allowed 2 revisions)
∗ Legal insufficiency: Though the complaint has enough information or assuming all facts are
true, the claim is not sufficient on its face to have a legal basis for relief (ex. Jin where the
statute of limitations had run)
o Can face Rule 11 sanctions
Δ must make any 12(b) motion before filing his/her answer to the complaint.

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Different forms of complaints:

∗ One which conforms to FRCP 8(a).
∗ Forms as listed in the appendix of FRCP
∗ California claim form – code pleading state.

Dioguardi v. Durning:
∗ Judge Clark – strong realist and primary author of the FRCP – wants to push system so that
cases can be heard and decided on the merits and not kicked out for other problems in
pleading its claims etc.
∗ Π wants his tonics. They were taken from him probably for failure to pay his customs fee.
His fee was not paid so they were auctioned off at a price of $110 to a bidder. Wants
damages and value of tonics back.
∗ Procedural history – Δ files 12(b)(6) motion to dismiss because of failure to state facts
sufficient to constitute a cause of action. Ct dismisses without prejudice. Π files an amended
complaint. Because amended complaint doesn’t add much, Δ again files 12(b)(6) motion to
dismiss for failure to state facts sufficient to constitute a case of action.
∗ Ct says don’t need facts! Just claim. And though π stated claim inartistically, if you examine
his claim can find a few claims he is raising including conversion and failure to deliver
merchandise.

Dioguardi v. Durning—Jurisprudential concept: allow more cases to be heard on the merits.

Make it easier to get into the court house because decisions should be made on the merits and not
dismissed on the pleading. Don’t want pleading rules to be so technical that they deprive
people of their day in court.

Dioguardi v. Durning—Tension: Tension between judicial economy and allowing more access to
the courts. But Fuentes points out that economy is not the primary concern of process – it is
dignity, privacy, right to be heard etc. etc. Want to allow people to have their ‘day in court’

MODERN PLEADING: RESPONSES TO COMPLAINT

Pre-answer Motion, Sample Answer (Zielinkski v. PHL Piers), and Affirmative Defenses

To respond to a complaint file a: (1) pre-answer motion (12(b) motion) or (2) answer

Pre-Answer Motion FRCP Rule 12(b):

∗ Δ has 20-days to serve an answer with every defense pleaded in the complaint. However, Δ
can serve a pre-answer motion with the 7 defenses listed in 12(b). These motions must be
filed before further pleading is permitted! If you answer first, you cannot file these motions!
If these pre-answer motions are denied, the case proceeds on.

Pre-Answer Motion FRCP Rule 12(g):

∗ Δ may join any motion under Rules 12(b) (1)-(7). However, once you file a Rule 12(b)
motion (1)-(7) and join any other motions, you’ve waived the other motions (exception: note
Rule 12(h))! The only way to save yourself is that the motion was “not then available.”

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Pre-Answer Motion FRCP Rule 12(h):

∗ Lack of jurisdiction over the person, improper venue, insufficiency of process, or
insufficiency of service is waived if omitted from the motion as described in 12(g)
∗ However, if one of these four defenses was not included in a motion to dismiss or in their
answer, you still have an out! You can make an amendment of the answer under Rule 15(a)
to be made as a matter of course.3 If you do this, then you have preserved your defense.
However, as a matter of course, you can amend your pleading before a responsive pleading it
filed OR within 20 days. If no response to pleading to your answer is required, then you’ve
got 20 days to amend your answer of course.
∗ Other defenses (subject matter jurisdiction, failure to state a claim which relief can be
granted, failure to join party) not waived if not brought in pre-answer motion. To preserve
must put it in your answer. Subject matter jurisdiction is never waived.
Three ways to preserve your defense of 12(b) (2), (3), (4), and (5)4: (1) include it in a pre-answer
motion under a 12(b) motion; (2) file it in your answer; or (3) amend your answer under Rule
15(a) within 20-days (but you can only file an amendment once)!
Answer FRCP Rule 8(b):
∗ Don’t play games. You either admit or deny the allegations. If you don’t have knowledge or
information about the allegations, you can say that you’re without knowledge or information
and therefore, can deny it at this stage. Careful: if you outright deny it and you’re without
knowledge, you can be subject to Rule 11 sanctions
Affirmative Defenses FRCP Rule 8(c):
∗ You must assert your affirmative defense or else they will have been waived! [Shall lang.]
Zielinkski v. PHL Piers:
∗ Facts: Π requests ruling that the motor-driven fork lift operated by Sandy Johnson (which
injured Π) was owned and operated by Δ and that Johnson was acting as an agent of Δ as an
employee. Δ responded by admitting that “fork lift was owned and operated and controlled
by Δ.” However, this was false. Δ still owned the forklift, but did not operate or control it.
General denial did not put Π on notice as to the fact that they had the improper Δ.
∗ Ruling: Δ should have specified what it admits and what parts it denies. Though
technically Δ’s denial was proper because didn’t meet all the criteria (poorly drafted by π)
denial should FAIRLY meet the substance of the averments denied. 8(b).

MODERN PLEADING: RESPONSES TO COMPLAINT RULE 15

Amendment to Pleadings: The Concept of Prejudice and Amendments

Rule 15(a):
∗ Party may amended a party’s pleading once as a matter of course (w/out the ct.’s
authorization)
∗ Don’t be macho/don’t be stubborn; just amend
∗ “Freely given when justice so requires”: Pleadings are the mere allegation, putting into
play what is going to be proved (decisions are to be made based on the merits)
∗ If justice will be served, by allowing pleadings of the merits, the ct. will go ahead and
allow that pleading (but there are certain limitations)
3
You don’t have to get court approval, you just do it on your own
4
Lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service

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Rule 15(b):
∗ By allows the amendment of a pleading to conform to evidence; allows pleadings to
conform to the evidence, after the fact, as long as there’s no undue prejudice

Rule 15(c):
∗ Potential savior; running of the statute of limitations
∗ Amendment of a complaint relating back to the date of the original pleading
∗ 15(c)(2): If the claim simply arises from the same nucleus of operative fact, then it relates
back to the original complaint and then there’s no statute of limitations problem
∗ If 15(c)(2) is satisfied, the proper parties rec’v notice of the amendment, then the statute
of limitations is dismissed
∗ 15(c)(3): The proper Δ must know there was a mistake w/in 120 days and their able to
prepare a defense so they won’t be prejudiced

MODERN PLEADING: RESPONSES TO COMPLAINT CASES

Beeck v. Aquaslide, Moore v. Baker, Bonerb v. Richard J Caron Foundation

Beeck v. Aquaslide—Facts: Complaint alleges Aquaslide as Δ; Aquaslide answers that they

were the manufacturer of slide that injured Π because 3 insurance companies looked over the
slide and said it belonged to Aquaslide. President of Aquaslide looks at slide, then knew that it
wasn’t theirs, but makes that comment after statute of limitations has run. Aquaslide enters
motion to amend answer.

Beeck v. Aquaslide—Ruling [Citing Foreman v. Davis]:

Finds five circumstances were ct. should deny motion to amend:
∗ Undue delay (e.g., if the party knows it has a chance to amend but just waited)
∗ Bad faith or dilatory motive (e.g., Δ waits till the statute of limitations ran)
∗ Repeated failure to cure deficiencies by amendments previously allowed (e.g., Macheras—no
more amendments because the first amendment did not cure all defects)
∗ Important one: undue prejudice to the opposing party by virtue of allowance of the
amendment (e.g., undue hardship on the party; have to do whole discovery process again,
discovery might be completed and they have to go back and they all have to start over again)
∗ Futility of Amendment (e.g., we’ll allow the amendment, but there’s no point because you’re
still going to lose)

Ct. granted motion to amend, even despite there being severe prejudice on Δ because the statute
of limitations had run on Π to be able to sue other Δs. However, ct. said that Π can always sue
right manufacturer under other claims.
Moore v. Baker—Facts: Π sues Δ-doctor after having surgery performed, suing that doctor
didn’t tell Π about alternative therapies. Original complaint did mention the surgery and post-
operative care, but did not hint that the doctor’s actions were negligent. However, Π filed
amended motion covering the performance of surgery and post-operative care.

Moore v. Baker—Ruling (Using Rule 15(c)):

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∗ The statute of limitations bars the claim asserted in Moore’s proposed amended complaint
unless the amended complaint relates back to the date of the original complaint. An
amendment relates back to the original filing “whenever the claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading.”
∗ Ct. says that there’s no relation back
o They interpret the same “conduct, transaction, or occurrence” very narrowly
Bonerb v. Richard J. Caron Foundation—Facts: Π slips on basketball ct. and filed complaint
for negligent maintenance of the ct. Motion to amend the complaint was entered after Π rec’d
new counsel.

Bonerb v. Richard J. Caron Foundation—Ruling:

∗ Ct. decides that amendment should be allowed
o They gave general notice about the possibility of a new claim
 It was a mandatory exercise program, enough of the same transaction
(defining the same transaction very broadly)
• Anything connected with the treatment of the Π would be of the same
transaction or occurrence, enough to allow relation back
∗ Addresses prejudice issue: There’s still time for discovery and expert witnesses haven’t been
identified and imposed, and no showing of undue influence
∗ Ct grants amendment because says the bball incident during mandatory exercise program has
the same nucleus of operative facts (same languages as that used for test of supplemental
jurisdiction)
∗ Says anything connected with the same injury has the same nucleus of operative facts. Since
counseling included mandatory bball at which time injury occurred – connected to the injury.
Which test will the court apply?? No clear answer – matters on who the judge is and what they
feel about the case. 107815

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