Académique Documents
Professionnel Documents
Culture Documents
Personal Jurisdiction
-In what state can P sue D?
-Does Court have personal jurisdiction over D?
-If no PJ, then any judgment entered is void and unenforceable. No Full Faith
and Credit
-If PJ, then the court can compel D to answer, and if D does not (defaults),
default judgment is enforceable. Judgment can be enforced in another state
when D is located (FFC)
1
-example of specific jurisdiction (only for specific act of
driving in Mass.)
-Shaffer,p. 147
-Shareholder’s derivative suit allows P to due officers of
company against the actual company
-P sued D Greyhound in Delaware (where co. was
incorporated) and attached all of the stock in an attempt
to est. PJ
-USSC rules that property also required MC test
-following case, Delaware passed law that by being
officer of a company, you are giving implied
consent to be sued where company is incorporated
-By estoppel
-Bauxites, p.171.
-Ds contested PJ. P attempted to use discovery to
establish PJ facts.
-Ds failed to comply with court order to produce requested
info.
-Under FRCP 37(b)(2)(A), court imposed sanction
that PJ facts were established; and D could no
longer contest personal jurisdiction
2
-some states require D to file a “special appearance” to preserve
any PJ objection. If D files special appearance D is not
consenting
-special appearance not required in federal court
-What is “domicile”?
-A person’s “true, fixed, and permanent home.” Mass, p.256.
-Change of domicile- requires:
(1) Taking up residence in another place and
(2) Intent to remain there.
-Example:
-taxes, Driver’s license, purchase of property
-Availability of D’s domicile as a proper forum means that there is
always one place when individual D can be sued.
3
-What is property?
-examples: internet domain names, real property, cars, debt
-Minimum contacts analysis applies b/c property is a substitute for
interests of a true person.
Shaffer, p. 147
-Shareholder’s derivative suit allows P to sue officers of
company against the actual company
-P sued D Greyhound in Delaware (where co. was
incorporated) and attached all of the stock in an attempt
to est. PJ
-USSC rules that property also required MC test
-establishes 4 categories of Personal Jurisdiction
4
(5) IF D IS NOT PRESENT IN THE FORUM, “MINIMUM CONTACTS”
SUCH THAT SUIT DOES NOT OFFEND FAIR PLAY AND SUBSTANTIAL
JUSTICE (INTL. SHOE)
-flexible test
Functions of MC test (World-Wide Volkswagen):
(1)”Touchstone” is “purposefully established minimum contacts”
(BK, p.109) (P’s burden)
What are D’s contacts with the forum?
(1)Are contacts systematic and continuous, or casual and
isolated?
(2) Was there “purposeful availment” in these contacts
and/or was it foreseeable that they would lead to a suit?
-the requirement may be satisfied if a product was
put in the stream of commerce
(3)Is the claim related, or does it arise out of D’s contacts
with the forum?
-If No, the general jurisdiction test (higher threshold
for MC in general jurisdiction cases)
-if #1 is not satisfied, do not continue on to the fairness step
5
-USSC upheld PJ due to stream of commerce, as well as
benefits from the forum state (using state’s courts), as
well as continuous presence within forum
-SHOE established minimum contacts
6
-3rd party availment does not constitute PJ
-territoriality is at heart
-Foreseeability- foreseeable that D would be sued in forum
World-Wide Volkswagen:
-P buy a car in NY, where they are residents
-I yr. later, while driving through OK, get into a severe accident
-P brings suit in OK against car manufacturer, distributor, ect (D)
-D challenges PJ in OK courts, as they had never sold a car in OK,
had no contacts with OK, ect
-P argues that D has MC due to stream of Commerce
-OK courts uphold PJ, D appeal
-USSC rules NO PJ b/c D does not purposefully avail themselves
to forum state
-not foreseeable that D would be sued in forum state, as
they had no contacts, And beyond this one car, had never
sold a car that to their knowledge had been in OK
-forseeability argument modified:
-NOT foreseeable that the good would be used there,
but that the D would have forseeability that they could
be SUED there (goes beyond the SOC to SOC Plus)
-modifying the Gray decision
-just because cars can be used in another state, doesn’t
mean that the D should be sued there
-D's did not purposefully avail themselves in the forum
state
-petitioners reap no benefits from OK, or OK courts,
so therefore shouldn’t burdened by them
Examples:
-NOT PURPOSEFUL/FORESEEABLE:
-World Wide Volkswagen:
-NOT foreseeable that the good would be
used there, but that the D would have
forseeability that they could be SUED there
(goes beyond the SOC to SOC Plus)
-modifying the Gray decision
-just because cars can be used in another
state, doesn’t mean that the D should be
sued there
-D's did not purposefully avail themselves in the
forum state
7
-petitioners reap no benefits from OK, or OK
courts, so therefore shouldn’t burdened by them
-Hansen
-USSC ruled that the FLA courts had no PJ over D
-Trustees did not reach out to Florida
-no purposeful availment
-3rd party availment does not constitute PJ
-Kulko
D: father, NY resident
-P: mother, suing for modification of child support
agreement, California resident
-Suit was filed in California, D objected to California
jurisdiction
-Need to look at D's contacts to state
-bought daughter to California
-lets children move there
-is sending $ to California, as well as contacting his
kids in California
-Court ruled that D's contacts were not counted as
purposeful availment
-quid pro quo: the heart of purposeful availment- did
the defendant benefit from his contacts with
California?
-Court rules that the D is not getting benefits
from the state of California
-This is a fairness case, not a state sovereignty case
-not fair for the D to be tried in California
-PURPOSEFUL/FORESEEABLE:
-Burger King: p.108
-D purposely availed himself within the forum state by
entering into a voluntary contract with a FLA based
corporation
-mailed payments to the FLA corporate office
-D went to "Burger King University" for training
-D were in constant contact with the corp. offices
-contract includes a "choice of law" provision
stating that FLA law will rule any potential
dispute
-contract negotiations were held in FLA: "This
agreement...shall be deemed made and entered
into the State of Florida…"
-D reaped benefits from the contract, as well as
forum state
-D should have foreseen legal action within the forum
state due to contract with FLA corporation
-D had substantial connections to FLA through contract
8
-Michigan's interest in hearing the case will not be
diminished by letting the plaintiff's using its own
forum
-it is not too burdensome for D to be tried in forum state
-FLA is the most efficient venue to hear the dispute
-facts of purposeful availment counteract an
inconvenience argument, since the D have already
availed themselves to forum state
BIG CHANGE FROM BURGER KING
-Two Step Process of Contacts vs. Fairness:
(1)-What are the contacts?
-was a product placed in SOC?
-Are they continuous/systematic or
casual/isolated?
-Are contacts result of D's purposeful
avaliment and/or was it foreseeable that the
contacts could lead to suit in the forum?
-benefits from the forum state?
-Is the claim related/unrelated?
(2)Fairness elements:
-D's convenience/burden
-State's regulatory interests
-do several states have an interest in
hearing the case
-fair play and substantive justice?
-most efficient venue?
-International Shoe:
-regularly engaged in sales, employed WA
salesmen, shipped shoes to the state
-Keeton (Hustler Mag. Case)
-magazine sales within the forum, purposefully
availed, benefits from state
9
5. Does the allowance of jurisdiction serve
interstate policy interests?
-Under Asashi, is SOC enough?
-NO, O’ConnerSOC Plus. (phone call). Finds
that merely placing a product into SOC does
NOT equal purposeful availment, also need
minimum contracts in forum state
-Yes; Brennan SOC enough, no MC required
in forum state
-So, things to look for on purposeful availment…
-Did D reach out and voluntarily initiate contacts with the
forum state?
-Did D earn substantial revenue from contacts w/in forum
state?
-Did D agree that forum state’s laws would apply (ie: a
choice of law provision in contract)?
-Were there offices, property, employees, agents, or
contractual obligations in forum state?
NOTE: Contract alone is not enough. BK. Evaluate
negotiations, terms of contract, dealing b/w the
parties.
-Did D’s products end up in the forum state?
-Did D market and advertise products in the forum
state?
-Was product designed for market in the forum
state?
(3)Is the claim related or does it arise out of D’s contacts in the
forum?
Related claim= specific jurisdiction. Fewer contacts required.
Unrelated claim= general jurisdiction. More contacts required.
-Helicopteros, p. 128.
NOTE: treated as general jurisdiction case, which resulted in no
PJ over the D
-P sued foreign D in TX, despite minimal contacts within forum
state
-while the claim was related to contacts, P argued for
general jurisdiction, instead of specific jurisdiction
-probably would have found PJ for D if correctly
argued for specific jurisdiction
-the contacts requirement is higher for general
jurisdiction than specific jurisdiction, so not enough
contacts to support general
-harder for P to assert general jurisdiction based on
"minimum contacts"
-Perkins, p. 125
10
(1)D’s convenience and burden
(2)What are the forum state’s regulatory interests in the dispute?
-state has interest in providing forum for its residence
-examples: Burger King/McGee
-state has interest in applying its own laws
-Examples: Burger King
-state has interest in providing forum for litigating claims about a
company incorporated in forum state
-example: Shaffer, Brennan dissent
(3)D’s benefits from forum state?
(4) What are the plaintiff’s interests in the forum state?
-Keeton(Hustler Magazine)
-D had sales benefits in the state, as well as benefits from the
state courts
-McGee
-health/fire benefits from forum state while present
(5)What are the system’s interests in efficiency?
(6)What are “shared interests of the several states in furthering
fundamental substantive social policies”? (Doesn’t seem to be a
strong factor)
-Clash of law b/w forum state or another
Additional Concepts/Definitions
11
Under Section 2, what kinds of cases can the federal courts hear?
-Law and Equity (federal question)
-Laws of the United States and Treaties
-Cases affecting ambassadors, public ministers, council
-Admiralty, maritime
-U.S is a party
-controversies between two or more states
-between state and citizens of a different state
-between citizens of different states
-land grant jurisdiction
-between a state, and citizen of a state, and a foreign citizen
(1)Federal Question
Based on statute 1331: Federal Question (green book p.235)
"The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States."
12
-good inclusionary rule, but not an exclusionary rule
-comes from Merrell Dow Pharmaceuticals v. Thompson (1986)
-Holding:
-A violation of a federal statute, as part of a claim, is not
sufficient for the federal courts to claim original
jurisdiction if the statute does not create a private
remedies for violations of the statute.
- Rules
This case give several different tests to determine when a
case is covered under original jurisdiction for the federal
courts. These test include:
Holmes Test:
-The "vast majority" of cases that come within this
grant of jurisdiction are covered by Justice Holmes'
statement that a "`suit arises under the law that
creates the cause of action.'"
-Does the federal law actually create the
cause of action in the complaint?
-what does the majority decide is the important factor
that they are going to rely on in determining federal
question subject matter jurisdiction?
-intent of the legislature: if Congress had wanted these
cases tried in the federal courts, than they would have
given a right of action
-Brennan counters that the FDCA is a regulatory statute,
which never could create a cause of action
-counters that if intent is the most important
deciding factor (as it is according to the majority)
then: simply because there is no federal cause of
action does not mean that there is no federal
question subject matter jurisdiction
-then it would be based solely on the Holmes
test, and no room for the litigation provoking
problem
13
-Foreign plaintiff’s decided to file in US due to more leintent and
plaintiff-favored verdicts
-federal issue in a state cause of action
-does not apply to Mottley,b/c it was the anticipated defense of the D
-MUST be part of the plaintiff's claims
From Grabel:
Standard to Analyze the litigation provoking problem (.p295)
-Does a state-law claim necessarily raises stated federal issue,
actually disputed and substantial, which a federal forum may
entertain without disturbing any congressionally approved
balance of federal and state judicial responsibility."
-federal issue must arise from the state cause of action (not
from an anticipated defense)
-must raise a federal issue which is actually and substantially
disputed
Federal forum entertain without disturbing congressionally
approved balance
-federalism
-intent,
-uniformity
-complexity
-efficiency
-expertise
(2)Diversity
-based on 28 U.S.C. S 1332(a)-(c)
§ 1332. Diversity of citizenship; amount in controversy; costs (p.235)
14
-the couple were both graduate students a LSU, so had
residency in Louisiana
D: Perry, the Louisiana land-lord of the P who was accused of watching
the P through two sided mirrors in their apartment
Facts for Diversity Jurisdiction in federal court:
-if Mrs. Mas is a citizen of Louisiana, then there would be no
diversity jurisdiction
-Court Ruled that she had domicile in Mississippi (where her
parents lived and she had grown up), despite the fact that she
did not intend to return to Mississippi
-to change domicile, you have to take up a new residence and have
INTENT TO REMAIN
-The Mas's do not have intent to remain in Louisiana, so Mrs.
Mas's domicile remains in Mississippi
-most recent domicile remains with you until you have
intent to remain in a new location
-every federal claim must satisfy subject matter jurisdiction, or else
it must be tried in state court
-How do we determine the citizenship of corporations?
-look at statute 1330-c
-Corporations have two states of citizenship:
-the state in which it is incorporated
AND
-the place where it has its principle place of
business
-"nerve center" test: where is the corporation
making its decisions and have overall control
-"corporate activities" test: where production
or service activities principally are located
-"total activities test"
(2)Exceeds $75K
-rules from Whitchurch case
Facts:
- A.F.A. Tours (P) claimed that a former tour guide
misappropriated confidential info, but the district court
dismissed the claim for failure to satisfy the amount-in-
controversy requirement.
Rule:
- The amount-in-controversy requirement for federal
diversity jurisdiction is satisfied if the P makes a good
faith estimate that the value of the claims, including
actual and punitive damages and the value of injunctive
relief, meets the required amount.
-amount in controversy is based on the Plaintiff's claims, as
long as it is in good faith
15
-need a legal certainty that the claim is less than $75K in order
for the court to dismiss
-the amount in controversy is measured from the time at which
the complaint is filed
-punitive damages count for the amount in controversy
-Aggregation rule (for adding up claims)
-for 1 P and 1 D, then just add up all of the claims
-for 1 P and 2 D, cannot add P claims together unless the
Ds are jointly liable
-Multiple Plaintiffs and 1D, cannot add up claims unless
there is a common, undivided interest (VERY RARE, does
not include torts claims)
Two exceptions for diversity jurisdiction (if the 2 basic elements are met)
(1) Domestic relations
-divorce, alimony, child custody
(2)Probate: dealing with wills and settling estates
-ex: Ann Nicole Smith case (Marshall v. Marshall)
-claim was for "tortuous interference with a gift", as her late
husband's son was refusing to honor promise her husband had
made to give her money
-b/c it was not technically a probate case, then it meets diversity
requirements and can be brought in federal court
Supplemental Jurisdiction
How do we approach supplemental jurisdiction?
(1) Subject matter jurisdiction over a claim (original claim)?
-identify if it is a federal question, or if it is diversity
-28 U S C 1332 (a) (1) requires complete diversity and an
amt in controversy exceeding $75,000.
-Kroger: neither judicial economy nor convenience of
litigants can defeat the complete diversity requirement
(2)Common Nucleus of Operative Fact/ S. 1367 (a)?
-Comes from the Gibbs case: Mining labor union sued by mine
superintendent due to state and federal claims arising from a mine
strike
-Common Nucleus of Operative Fact Test: do the federal
and state claims arise from a common nucleus of fact
-this deals with the constitutional aspects (Art. III, Section
2)
-this makes the claim into one "case" which thus
grants federal subject matter jurisdiction
-What is the court looking for to determine if there is a
"common nucleus of operative fact"?
16
-if the two claims are arising from the same set of
facts/circumstance
-if the court satisfies the "common nucleus of operative
fact", then supplemental jurisdiction is discretionary, left up
to the court
Several factors where the court should DECLINE to
such a supplemental claim:
-needless decision of state law
-if the state issues predominate over the federal
issues
-if federal claim dismissed by trial court
17
-Two step tested needed to decline (p.306)
(1) factual predicate
-must plug the facts into the subcategories of
reasons for removal according to section (c) (1)-
(3)
(2)Values inquiry:
-should be based on a reason that declining
jurisdiction "best accommodate[s] the values of
economy, convenience, fairness, and comity."
-the (c) (4) is a values inquiry in itself, and should be used
"quite unusually"
-interpreted similarly to (c) (1)-(3)
-must show:
-exceptional circumstances
-compelling reasons for declining
-Remanding a case when is when the case is sent back to state court (where it was
original started, then sent to federal court); based on statute 1447
Remand orders CANNOT be appealed,
-the exception is civil rights cases
-If it is started in federal court, it CANNOT be remanded to state court
Removal and remand are only for actions which start in state court
(does not apply to case that start in federal court)
18
the state law predominated cases back to state
courts
-CANNOT send back the federal question claim, since
it has original jurisdiction over
VENUE
Where are cases removed to?
-to the federal district court for where the geographical place where
the case is pending
General venue statute 1391
Venue is simply statutory (no constitutional question)
-This has nothing to do with court's authority over the D (as PJ) but has
to do with where the lawsuit should be heard.
19
∆ can only give consent to waive at time case is filed...after
filing it is too late**
Parties:
-patent infringement that P Blaski brought in the northern district of
Texas
-D's file motion to transfer to the northern federal district of Illinois
-Blaski argues against this change of venue, as there is no PJ over
the defendant's in Illinois
How is this relevant to venue?
Statute 1404: venue is proper, but for reasons of
convenience and justice, the case should be
transferred to another venue in which the action
could/might have been brought
-need to look to PJ
-the TX district court does not heed this argument,
and transfers the case to the federal court in Illinois
-Blaski moves to get the case transferred back
to Illinois, under a petition for mandamus
-What do the D argue against Blaski's petition for mandaeumus?
-D's argue that they consent to PJ in Illinois
-the Supreme Court does not accept this argument, b/c venue must
take into account to where the P can file, not where the D consents
-Dissent:
-Brennan: not fair
-statutory language must show that it is convenient for all
parties AND in the interest of justice
-Plaintiff looked at different venue choices, and correctly selected TX
-What should D's be required to show to get a proper venue
transferred?
-questions of cost, extreme inconvenience, bias
-why might a TX jury pool be biased against the D?
-TX is known for giving big sums of $ to plaintiff's
20
-for actions that cannot be transferred, as the more convenient venue
is in another jurisdiction, such as another state or a foreign
jurisdiction
The Laws of the several states shall be regarded as the rules of the decision in
the federal courts
21
-(3)Favors non-residents
Hanna Problem: federal law directly on point; direct conflict between federal
and state rule
-When this kind of direct conflict, the federal rule wins
-b/c of the Supremacy Clause
22
Erie Doctrine; “Substance vs. Procedure “ Test
-In Erie RR v. Tompkins, the Court ruled that there is no federal common law
-the Rules of Decision Act to not give federal courts the power to
determine substantive common law
Erie Doctrine: in federal diversity cases, substantive issues would be
governed by state law, and procedural issues would be governed by federal law
-Erie does not control when there exists an applicable federal rule
that conflicts with a state law or policy
However, when no conflict exists, Erie Doctrine controls
-Walker v. Armco Steel Corp. : Court rules that favor towards applying
federal procedural rules only applies when the federal rule
actually applies
Klaxon:
-Once the court determines that state law applies, how does the court determine
which state law applies
-remember that these are DIVERSITY cases, so which state law should decide
out of possible laws?
-Federal courts are going to apply the "conflicts of law rules"
Apply the state law of the state where they are sitting (forum state)
23
-Converse Erie: state court, question of what law
-federal law will apply to substantive issues,
-state law will apply to procedural issues
Pleadings
The Complaint
24
A party must state its claims or defenses in numbered paragraphs,
each limited as far as practicable to a single set of circumstances.
A later pleading may refer by number to a paragraph in an earlier
pleading. If doing so would promote clarity, each claim founded on a
separate transaction or occurrence — and each defense other than a denial —
must be stated in a separate count or defense.
(c) Adoption by Reference; Exhibits.
A statement in a pleading may be adopted by reference elsewhere in
the same pleading or in any other pleading or motion. A copy of a
written instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.
Denny case:
-if you are bringing a securities fraud case, Congress has added additional
heightened standards beyond Rule 9 (b)
Objective of Rule 9(b): "heightened pleading standard"
Prevents fraud, protects financial institution's reputation,
provides notice to defendant
Required under Rule 9(b):
-identify the circumstances under which the fraud occurred
-who?, what?, when?, where?, and how?
-Court Ruled that the plaintiff had satisfied the standard under
Rule 9(b)
Holding/Rule:
-Plaintiff's claims is valid, as Fed.R.Civ.P. 8 requires a
short and plain statement of the claim which is
simple, concise and direct
-Rule 9(b) does require slightly more notice than would be
forthcoming under Rule 8,but the rule is met as there was
sufficient identification of the circumstances constituting the
fraud so that the defendant can prepare and adequate answer to
the allegations
25
- Requirements for establishing a prima facie case for employment
discrimination, need not prove more facts than necessary to pass
muster under FRCP 12(b)(6).
Twombly
Holding/Rule:
-The need at the pleading stage for allegations plausibly suggesting
(not merely consistent with) agreement reflects the
threshold requirement of Rule 8(a)(2) that the “plain
statement” possess enough heft to “sho[w] that the pleader is
entitled to relief.” A statement of parallel conduct, even
conduct consciously undertaken, needs some setting
suggesting the agreement necessary to make out a § 1 claim.
-must show plausibility more than just conceivability or
formulaic recitation
-give facts that plausibly suggest the agreement
-more than just labels and conclusions
-more than a "formulaic recitation"
-not moving to Rule 9 requiring specific facts, but must show
sufficient facts such that the complaint as a whole makes it plausible
for a claim for relief
Twombley Problem:
How is the plaintiff going to have these facts, when these are
usually gathered during discovery?
-comes down as anti-trust, but has already been widely applied outside
anti-trust cases
Rule 12. Defenses and Objections: When and How Presented; Motion for
Judgment on the Pleadings; Consolidating Motions; Waiving Defenses;
Pretrial Hearing
(a) Time to Serve a Responsive Pleading.
(1) In General.
Unless another time is specified by this rule or a federal statute, the
time for serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 20 days after being served with the summons and
complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days
after the request for a waiver was sent, or within 90 days
after it was sent to the defendant outside any judicial
district of the United States.
(B) A party must serve an answer to a counterclaim or crossclaim
within 20 days after being served with the pleading that states
the counterclaim or crossclaim.
26
(C) A party must serve a reply to an answer within 20 days after being
served with an order to reply, unless the order specifies a different
time.
(2) United States and Its Agencies, Officers, or Employees Sued in an Official
Capacity.
The United States, a United States agency, or a United States officer or
employee sued only in an official capacity must serve an answer to
a complaint, counterclaim, or crossclaim within 60 days after service
on the United States attorney.
(3) United States Officers or Employees Sued in an Individual Capacity.
A United States officer or employee sued in an individual capacity for
an act or omission occurring in connection with duties performed on
the United States' behalf must serve an answer to a complaint,
counterclaim, or crossclaim within 60 days after service on the
officer or employee or service on the United States attorney, whichever is later.
(4) Effect of a Motion.
Unless the court sets a different time, serving a motion under this rule
alters these periods as follows:
(A) if the court denies the motion or postpones its disposition
until trial, the responsive pleading must be served within
10 days after notice of the court's action; or
(B) if the court grants a motion for a more definite statement,
the responsive pleading must be served within 10 days after
the more definite statement is served.
(b) How to Present Defenses.
Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following
defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a
responsive pleading is allowed. If a pleading sets out a claim for relief that
does not require a responsive pleading, an opposing party may assert at trial any
defense to that claim. No defense or objection is waived by joining it with one or
more other defenses or objections in a responsive pleading or in a motion.
(c) Motion for Judgment on the Pleadings.
After the pleadings are closed — but early enough not to delay trial — a party
may move for judgment on the pleadings.
(d) Result of Presenting Matters Outside the Pleadings.
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.
(e) Motion For a More Definite Statement.
27
A party may move for a more definite statement of a pleading to which a
responsive pleading is allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response. The motion must be made before
filing a responsive pleading and must point out the defects complained of and the
details desired. If the court orders a more definite statement and the order is
not obeyed within 10 days after notice of the order or within the time the court
sets, the court may strike the pleading or issue any other appropriate order.
(f) Motion To Strike.
The court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the
pleading or, if a response is not allowed, within 20 days after being served
with the pleading.
(g) Joining Motions.
(1) Right to Join.
A motion under this rule may be joined with any other motion allowed
by this rule.
(2) Limitation on Further Motions.
Except as provided in Rule 12(h)(2) or (3), a party that makes a motion
under this rule must not make another motion under this rule raising a
defense or objection that was available to the party but omitted from its
earlier motion.
(h) Waiving and Preserving Certain Defenses.
(1) When Some Are Waived.
A party waives any defense listed in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the circumstances described in
Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment
allowed by Rule 15(a)(1) as a matter of course.
(2) When to Raise Others.
Failure to state a claim upon which relief can be granted, to join a
person required by Rule 19(b), or to state a legal defense to a claim
may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of Subject-Matter Jurisdiction.
If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.
(i) Hearing Before Trial.
If a party so moves, any defense listed in Rule 12(b)(1)-(7) — whether made
in a pleading or by motion — and a motion under Rule 12(c) must be heard and
decided before trial unless the court orders a deferral until trial.
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In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim
asserted against it; and
(B) admit or deny the allegations asserted against it by an
opposing party.
(2) Denials — Responding to the Substance.
A denial must fairly respond to the substance of the allegation.
(3) General and Specific Denials.
A party that intends in good faith to deny all the allegations of a
pleading — including the jurisdictional grounds — may do so by a
general denial. A party that does not intend to deny all the allegations
must either specifically deny designated allegations or generally
deny all except those specifically admitted.
(4) Denying Part of an Allegation.
A party that intends in good faith to deny only part of an allegation
must admit the part that is true and deny the rest.
(5) Lacking Knowledge or Information.
A party that lacks knowledge or information sufficient to form a belief
about the truth of an allegation must so state, and the statement has the
effect of a denial.
(6) Effect of Failing to Deny.
An allegation — other than one relating to the amount of damages — is
admitted if a responsive pleading is required and the allegation
is not denied. If a
responsive pleading is not required, an allegation is considered denied
or avoided.
(c) Affirmative Defenses.
(1) In General.
In responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense, including:
· accord and satisfaction;
· arbitration and award;
· assumption of risk;
· contributory negligence;
· discharge in bankruptcy;
· duress;
· estoppel;
· failure of consideration;
· fraud;
· illegality;
· injury by fellow servant;
· laches;
· license;
· payment;
· release;
· res judicata;
· statute of frauds;
· statute of limitations; and
· waiver.
(2) Mistaken Designation.
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If a party mistakenly designates a defense as a counterclaim, or a
counterclaim as a defense, the court must, if justice requires, treat
the pleading as though it were correctly designated, and may
impose terms for doing so.
(d) Pleading to Be Concise and Direct; Alternative Statements;
Inconsistency.
(1) In General.
Each allegation must be simple, concise, and direct. No technical form
is required.
(2) Alternative Statements of a Claim or Defense.
A party may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or
defense or in separate ones. If a party makes alternative
statements, the pleading is sufficient if any one of them is sufficient.
(3) Inconsistent Claims or Defenses.
A party may state as many separate claims or defenses as it has,
regardless of consistency.
Responding to a Complaint:
Two options:
(1) Answer the complaint: Rule 8-General Rules of Pleading
(2) File a motion under Rule 12: Defenses and Objections
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(4)Process
(5)Service of Process
(6)Failure to state a claim (known as 12b6)
(7)Failure to join a party under Rule 19
Which defenses are waived if they are failed to include in the 12b motion?
-Process, Service of Process, PJ, Venue
-Specified in Rule 12(h)
-what about failure to state a claim and failure to join a party under Rule 19?
-Under Rule 12(h)(2), defendant can raise these issues at any time before the
final judgment
-What about SMJ?
-any time, even during an appeal -NEVER WAIVABLE
-Rule 12(h) 3
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Under Rule 12(a), you need to include jurisdiction facts, ect.
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-Defendant can use this to amend their answer within 20
days
-Standard: court should freely give leave so long as justice
is served
(3) Time to Respond.
Unless the court orders otherwise, any required response to an
amended pleading must be made within the time remaining to
respond to the original pleading or within 10 days after service
of the amended pleading, whichever is later.
(b) Amendments During and After Trial.
DEALS WITH EVIDENCE THAT IS AT VARIANCE
-must get the court's permission
(1) Based on an Objection at Trial.
-If, at trial, a party objects that evidence is not within the issues
raised in the pleadings, the court may permit the pleadings to
be amended.
-The court should freely permit an amendment when doing so
will aid in presenting the merits and the objecting party fails to
satisfy the court that the evidence would prejudice that party's
action or defense on the merits.
-The court may grant a continuance to enable the objecting
party to meet the evidence.
Court will ask if this aids in presenting in the case?
-Court will allow it if id doesn’t show prejudice
(2) For Issues Tried by Consent.
-When an issue not raised by the pleadings is tried by the
parties' express or implied consent, it must be treated in all
respects as if raised in the pleadings.
-A party may move — at any time, even after judgment — to
amend the pleadings to conform them to the evidence and to
raise an un-pleaded issue.
-But failure to amend does not affect the result of the trial of
that issue.
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(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party's identity.
(2) Notice to the United States.
When the United States or a United States officer or agency is added
as a defendant by amendment, the notice requirements of Rule 15(c)
(1)(C)(i) and (ii) are satisfied if, during the stated period, process was
delivered or mailed to the United States attorney or the United
States attorney's designee, to the Attorney General of the United States,
or to the officer or agency.
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Worthington:
-Criminal suspect suing police officers for injuries received during arrests,; wants to
amend complaint to identify actual officers
The court noted that while Fed. R. Civ. P. 15(c) permits amendments which
change a mistaken name in the original complaint, it did not permit a plaintiff
to replace "unknown" parties with actual parties. Thus, the court held that the
criminal's amended complaint did not relate back under Rule 15(c) because
the amendment did not correct a "mistake," but rather corrected a
lack of knowledge at the time of the original complaint. The criminal's
complaint therefore was dismissed.
-what standard does15 c1 do:
(1) same transaction as the original complaint--> satisfied here
(2) time limit: 120 days after filing of original complaint--> also satisfied
(3) notice: new D's-->satisfied here
(4) but for mistake--> NOT met here
-using a "John Doe" plaintiff does not account to a mistake
-this step was missed because they were about to run out of time due
to the statutes of limitation
(5) new D's knew that they were the people likely named in the original
complaint
Foman rule: leave should be freely given unless: undue delay, bad faith, repeated
failures to cure, futility, ect.
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-needlessly increase the cost of litigation;
How do you respond to the other party who you believe has made a
Rule 11 mistake requiring sanctions
-Safe Harbor provision that allows the party 21 days to remove the
complaint, or time to amend
(c) Sanctions.
(1) In General.
If, after notice and a reasonable opportunity to respond, the court
determines that Rule 11(b) has been violated, the court may impose
an appropriate sanction on any attorney, law firm, or party that
violated the rule or is responsible for the violation. Absent
exceptional circumstances, a law firm must be held jointly
responsible for a violation committed by its partner, associate, or
employee.
(2) Motion for Sanctions.
A motion for sanctions must be made separately from any other
motion and must describe the specific conduct that allegedly violates
Rule 11(b). The motion must be served under Rule 5, but it must not
be filed or be presented to the court if the challenged paper, claim,
defense, contention, or denial is withdrawn or appropriately corrected
within 21 days after service or within another time the court sets. If
warranted, the court may award to the prevailing party the
reasonable expenses, including attorney's fees, incurred for the
motion.
(3) On the Court's Initiative.
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On its own, the court may order an attorney, law firm, or party to
show cause why conduct specifically described in the order has not
violated Rule 11(b).
(4) Nature of a Sanction.
-A sanction imposed under this rule must be limited to what suffices
to deter repetition of the conduct or comparable conduct by others
similarly situated. The sanction may include:
- nonmonetary directives;
-an order to pay a penalty into court;
-or, if imposed on motion and warranted for effective
deterrence, an order directing payment to the movant of part or
all of the reasonable attorney's fees and other expenses directly
resulting from the violation.
-The sanction must be limited to what is necessary to deter
conduct by either the particular lawyer or other lawyers
(5) Limitations on Monetary Sanctions.
The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule
11(c)(3) before voluntary dismissal or settlement of the claims
made by or against the party that is, or whose attorneys are, to
be sanctioned.
(6) Requirements for an Order.
An order imposing a sanction must describe the sanctioned conduct
and explain the basis for the sanction.
Multiple Claims
Claims, Cross Claims, and Counter Claims
Two Step Inquiry:
(1) Rule: Does the Rule allow joinder of the party/claim?
(2) Subject Matter Jurisdiction
-Diversity?
-Federal Question?
-Supplemental Jurisdiction (don’t go straight to supplemental,
first look to the other two options (diversity or SMJ))
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-typically a claim by a defendant against the plaintiff
Cross-Claims
-against co-parties (usually co-defendants)
-not compulsory
-Rule 13(g)
Standard under 13(g)
-must arise out of the same transaction or occurrence
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Permissibe & Compulsory Joinder of Parties
Rules:
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(i) as a practical matter impair or impede the person's
ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent
obligations because of the interest. (more likely to be
the defendant)
-absent party suing D in another court
-deals with fairness to the defendant
Joint tortfeasors are NOT necessary parties
Is Joinder feasible?
-PJ
-SMJ
-Venue (made by absent party)
(2) Joinder by Court Order.
If a person has not been joined as required, the court must order
that the person be made a party. A person who refuses to join as
a plaintiff may be made either a defendant or, in a proper case,
an involuntary plaintiff.
(3) Venue.
If a joined party objects to venue and the joinder would make
venue improper, the court must dismiss that party.
(b) When Joinder Is Not Feasible.
If a person who is required to be joined if feasible cannot be joined,
the court must determine whether, in equity and good conscience,
the action should proceed among the existing parties or should be
dismissed. The factors for the court to consider include:
(1) the extent to which a judgment rendered in the person's
absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or
avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person's absence would
be adequate; and
(4) whether the plaintiff would have an adequate remedy if the
action were dismissed for nonjoinder.
-Could plaintiff re-file the case somewhere else and bring in
all of the parties?
-most likely in state court
-use Rule 12(b)(7) motion to dismiss or 12(h)
(c) Pleading the Reasons for Nonjoinder.
When asserting a claim for relief, a party must state:
(1) the name, if known, of any person who is required to be
joined if feasible but is not joined; and
(2) the reasons for not joining that person.
(d) Exception for Class Actions.
This rule is subject to Rule 23.
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Rule 20. Permissive Joinder of Parties
(a) Persons Who May Join or Be Joined.
(1) Plaintiffs.
Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in
the alternative with respect to or arising out of the
same transaction, occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will
arise in the action.
(2) Defendants.
Persons — as well as a vessel, cargo, or other property
subject to admiralty process in rem — may be joined in
one action as defendants if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with
respect to or arising out of the same transaction,
occurrence, or series of transactions or
occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.
(3) Extent of Relief.
Neither a plaintiff nor a defendant need be interested in
obtaining or defending against all the relief demanded.
The court may grant judgment to one or more
plaintiffs according to their rights, and against one or
more defendants according to their liabilities.
(b) Protective Measures.
The court may issue orders — including an order for separate
trials — to protect a party against embarrassment, delay, expense, or
other prejudice that arises from including a person against
whom the party asserts no claim and who asserts no claim
against the party.
M.K. v. Tenent
Policy reasons for the joinder rule:
-to promote trial convenience, expediency, efficiency, avoid multiplicity of
lawsuits, prevent multiple expense and lost time
Parties:
Plaintiffs: employees suing the CIA
-trying to join new plaintiffs and new defendants
-amended complaint
Defendant's response:
-motion to sever (not a motion to dismiss b/c claims are valid so not Rule
12b grounds)
Rule 21: mis-joinder of the parties is not grounds for dismissal, so the
only option is to sever
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-The court allows joinder, saying this is the same transaction or occurrence, as there
is a logical relationship between all of theses plaintiffs
-how could you argue not the same transaction or occurrence?
Employment matters, so each plaintiff went through individual process
BUT court take a broad view and counts as same logical relationship
-Court finds common question of law or fact:
-question of law:
the Privacy Acts claim is the same for all claims
-common questions of fact:
-easier to find common question of fact by looking at the defendants'
actions
Remember this is only step one, and must still do a SMJ analysis
Bank of California Nat. Ass'n v. Superior Court
Parties:
-Smedly: trying to sue to enforce a contract with Boyd (P's deceased aunt)
-sues the bank (executor of the will) and the hospital (residual legatee)
-doesn’t sue the other legatees b/c the hospital gets 75% of the
estate
Bank files a writ of prohibition against the Superior Court for their ruling
-hospital and the bank want the other legatees joined to the case b/c:
-bank doesn’t want the other legatees to bring suit later
-hospital wants to resolve the issue and get the $,so wants to get
everything finished at once
-The court ultimately finds that the beneficiaries (parties) are not indispensible
Ct. rules that the issue is only about the contract claim
-Some of the AP live outside of the country, which could create a personal
jurisdiction problem
-Foreign defendants outside the country: what type of PJ is needed to get them
into California Court?
-in rem claim, as the property (estate) is in California
-what kind of in rem should be used?
Quasi type I in rem jurisdiction:
-property is the focus of the dispute
-parties are named and indentified
-claim is related to the property
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Not a quiet title, but is a contract claim which is about
the property
-still need to do a minimum contacts test (under Shaffer) to see if PJ
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-Plaintiff's interest
-interest in having a forum (Plaintiff has an adequate
remedy)
-19b1 and 19b3
-Defendant's interest
-AP interest
19b1
-Interest of the Court/public
-want efficient judicial system
-Rule 19b3
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-Too case: standard for the court in deciding whether or not to allow the non-
party to be inpleaded after the 10 days
Look to see if:
-Prejudice to third party
-state a claim
-to delay proceedings
Questions for the court to ask about adding the TPD after the 10 day
window:
-Deliberate delay?
-Delay/Complicate the trial
-Prejudice TDP
-1266: do you state a claim for relief against TPD
When bringing in third party D's, have to make sure you have
PJ over them.
Under Rule 14 and 19 must check:
(1)Personal Jurisdiction
(2)Venue
(3)Subject Matter Jurisdiction
(4) Erie
(5) Service
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