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8) Attacking Jurisdiction
a) In federal court, and most state courts, you must object to venue, jurisdiction, or process in the first motion that you file.
Failure to object in your first motion means that you waive your right to object.
b) You can only object to jurisdiction once. If you argue it and lose, you cannot collaterally attack (although you can appeal).
c) If you have a default judgment entered against you, you can attack jurisdiction collaterally.
d) The special appearance rule (COMMON LAW): you can make a special appearance just to argue jurisdiction. If you
mention the merits of the case, you have submitted to general jurisdiction.
e) The limited appearance rule: In quasi in rem cases, most states have a provision that you can appear solely for the purpose
of defending your property. Common Law.
f) 12(b) Motions:
i) Lack of subject matter jurisdiction
(1) Can be brought at any time
ii) Improper Personal Jurisdiction
iii) Improper venue
iv) Insufficient process
v) Failure to state a claim
(1) Can be brought at anytime throughout the trial
vi) Failure to join an indepensible party
(1) Can be brought at anytime throughout the trial
g) Rule 12(h): You have 20 days to respond. You can either make a motion or a answer. You can join your motion for lack of
jurisdiction with any other motion to dismiss available under this rule (ie: you can argue the merits to an extent). However, if
you lose on one of these motions to dismiss, you cannot bring up another one later (you can’t move to dismiss on merits, and
then move to dismiss on jurisdiction). Different from special appearance rule in that merits can be mentioned. Lack of
jurisdiction is waived if it is not mentioned in the first motion.
h) In general – reach of Fed District Courts is same as state the ct sits in. Includes State’s long arm statutes – Rule 4(k).
Exception is 4(k)- who is served at a place within a judicial district of the United States and not more than 100 miles from
the place from which the summons issues.
Notice
9) Purpose of notice: to make judgments final and binding, to facilitate adversarial system. Required by Due Process.
a) In the Pennoyer era, notice also helped to establish jurisdiction. Post Pennoyer, notice and jurisdiction became two
separate issues. Notice is to provide protection of property rights.
10) Two steps for proper notice (State and federal rule and Mullane). This process is similar to jurisdiction test.
a) Is notice proper under the state rule, if in a federal court is it proper under FRCP Rule 4
b) Is notice proper under due process clause of the 14th Amendment of the Constitution? The test is the Mullane Test.
c) The Mullane Test: Notice must be reasonably calculated to inform and succeed.
i) There is a balancing act between cost and the most efficient means of informing the defendant.
ii) Notice by publication and posting (constructive notice) is usually not sufficient. They are appropriate only if you cannot
locate other contact information.
iii) If there is a superior way that is more likely to reach ∆ --must take that way. IF there is an existence of better
alternatives, must use those (Greene v. Lindsay –posting notice of eviction on door). BUT – still not best notice, but
reasonably calculated notice.
iv) Actual notice does not cure the service problem. It is more efficient in the long run to comply with the rules.
d) Service under Rule 4
i) Rule 4(c)(1): A summons with a copy of the complaint.
ii) Service must be commenced w/in 120 days of filing suit.
iii) Rule 4(d): A person can send back the waiver form to waive the right of personal service. Waiving service does not
waive objections to jurisdiction, venue, etc.
(1) Incentives to waiving service:
(a) More days to file answer, 60 instead of 20.
(b) If there is no waiver, defendant pays costs of service
iv) If they do not respond, SERVICE STILL MUST HAPPEN!
(1) Maryland State Fireman’s Assn. v. Chaves: The waiver form must be returned, even if the defendant does receive
notice of the suit. Actual notice is not a waiver.
e) Service upon individuals within a judicial district of the U.S.
i) If service is not waived by the defendant, the plaintiff must enact personal service on the defendant.
ii) Rule 4(e)(1): You can also make service pursuant to the law of the state in which the district court is located, or in
which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general
jurisdiction of a state. Look to rules of the state.
iii) Rule 4(e)(2): Personal service is enacted by: delivering a copy of the summons and of the complaint to the individual
personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of
suitable age discretion residing therein, or to any agent authorized by law to receive service.
(1) National Equip. Rental v. Szukhent you can contract right to personal service to an agent, as long as the agent
performs in good faith—Florence Wineberg promptly forwarded the summons to the Szukhents.
(2) MSFA v. Chaves, Plaintiff mailed Chaves’ notice in first class mail, this was not sufficient since the Maryland Rule
of Procedure required certified mail.
f) Personal Service against Corporations
i) Rule 4(h)(2): By delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or
to any other agent authorized by appointment or by law to receive service of process.
g) Immunity from Service:
(1) If you are voluntarily within a jurisdiction at the time of your arrest and incarceration, you are subject to process.
(2) However, if you are compelled to enter a jurisdiction by a court (you’re testifying, answering a summons) then
you’re immune from process while in the jurisdiction.
(a) The policy behind the immunity rule is not to give a disincentive to a defendant to come to a state for a criminal
trial and while there receive service for a civil trial.
(b) Sivnskty – car accident & children
(c) Immunity issues are no longer as important as they once were due to modern long-arm statutes.
h) Personal Service and Fraud:
i) If you are induced to enter a state by false means for the purpose of gaining jurisdiction, then that jurisdiction is not
valid.
ii) However, if you are already within a jurisdiction and someone tricks you into receiving service than it is valid.
(1) Wyman v. Newhouse – fraudulent means to get to FL…marriage solicitation case.
Opportunity to be Heard
11) Prejudgment Remedies: seizure of property without notice (garnishment, replevin, temporary restraining order, sequestration).
12) You don’t have to own the property to object to prejudgment remedies, you just need to have a possessory interest.
a) Fuentes: ct found FL and PA statutes unconstitutional b/c they took away the right of participation by not allowing a hearing
before property was seized. Only conclusory allegations had to be made by the Plaintiff. Ct seems greatly concerned with
accuracy. Good procedures enhance the truth Wrongs can’t be undone after the fact. Ct. did not want arbitrary
encroachment. Participation is also important – getting to tell one’s side of the story.
i) White in the Dissent in Fuentes: concerned that majority’s decision will just lead to companies making “contracts of
adhesion” that serves as a waiver to due process rights or says collection costs will go to customer. Bad for economics.
13) When evaluating if a state’s seizure process meets 14th amendment standards, use the Matthew’s Test: White – opinion found LA
statute constitutional b/c it protected due process rights. Value of accuracy supercedes participation, whereas in Fuentes,
participation was more emphasized.
a) Analyze the defendant’s interest
i) Effect on their credit rating
ii) Their possessory interest in the property
b) Analyze the Plaintiff’s interests
i) Do they have a pre-existing interest in the property?
ii) Safety of the property
c) Analyze the risk of error – what procedures are in place?
i) Is there a specific allegation of pre-existing intent required?
(1) Require an affidavit
ii) Is the writ judge reviewed or clerk?
iii) Defendant gets a hearing at some point.
(1) Is there an immediate post-seizure hearing?
iv) Is a bond required? Need bond as a disincentive to ∏ for making erroneous claims.
(1) At the very minimum there needs to be a bond requirement and an immediate post-seizure hearing.
d) Cases:
i) North Georgia v. Di-Chem: White strikes down statute b/c it didn’t have any of the “saving” procedural characteristics
that LA one did --∏’s claims don’t have to be supported, no chance for early hearing, no probable cause requirement,
no-pre-existing interest in the property.
ii) CT v. Doehr: Ct determined statute unconst based on Matthew’s Test. Balancing interest of ∆, interest of ∏, and risk of
error. Ct found that in Doehr, there was a weak ∏ interest, strong ∆ interest, and a high risk of error b/c of the req of the
CT statutes.
iii) Extenuating Circumstances: Might be OK to seize property for public safety before hearing. I.e. FDA taking bad meat
without hearing. This is a public health concern.
i. D (IN.)
(f) P IN.) (>$75,000) D (IL.) This is not fine because the P has brought a supplemental
claim against a non-diverse defendant, which breaks the rule that requires total diversity of Plaintiffs and
defendants.
i. D (IN.)
(7) §1367(c): Courts MAY decline supplemental jurisdiction under §1367(c) even if 1367(a) is met when:
(discretionary)
(a) The claim raises a novel or complex issue of state law.
(b) The claim substantially predominates over the claim over which the district court had original jurisdiction.
(c) The district court has dismissed all claims over which it had original jurisdiction.
(d) In exceptional circumstances there are other compelling reasons for declining jurisdiction.
(i) Executive Software N. America: §1367c is the only valid basis for declining jurisdiction if both a and b are
met. The Court said that “Compelling reasons” meant that declining jurisdiction “best accommodates the
values of economy, convenience, fairness, and comity.”
22) Removal (§1441: The Removal Statute) (Allows a defendant a choice of court)
a) If ∆’s are sued in state court, in a case that could have been brought (look at 1331, 1332, 1367) in federal court, the ∆ can
remove the case to federal court.
i) Do not call it a transfer, it is a removal.
ii) The scope of the case the ∆ can remove is the same as the scope of the claim the ∆ could have filed in federal court in the
first place.
iii) Only defendant’s can remove, plaintiff can never remove even if counterclaimed.
iv) Removal can only occur within 30 days of service of the document that made it removable.
(1) However, you must remove to the federal district that encompasses the place where the state claim was filed.
b) A federal question case can always be removed.
c) A diversity case can be removed only if none of the ∆’s were sued in their “home court.”
i) Policy of home court advantage for ∆; if ∏ sues where ∆ is from, no removal.
ii) If a defendant is sued in their home state, but they are removed from the case then removal is proper.
iii) No removal if the case has been in state court for more than a year.
d) §1441(c) ---When a claim based on §1331 jurisdiction is joined with an otherwise non-removable claim, and when the claims
are separate and independent, the entire case can be removed to federal court. This could very well be read as being
unconstitutional. Once this case is removed, the other claim should be remanded. **Only used if the claims to be removed
are separate and independent (i.e. not from CNOF), and so that it’s not inefficient to have 2 cases. As a matter of law, if ct
finds no jur over state issue, it must remand it back to state court.
i) Borough v. Lancaster – 1441c applies only when there is no CNOF. Can’t remand back to state court if claims are
legitimately joined.
23) Attacking subject matter jurisdiction: If subject matter jurisdiction has been litigated the first time around, CANNOT collaterally
attack (you can appeal, but not attack).
Venue
24) This tells us exactly what federal district court we can go to.
25) A third limitation on a ∏’s choice of forum: The court must have personal jurisdiction, subject matter jurisdiction, and you must
choose the correct venue.
26) Venue is based on county/district boundaries, while jurisdiction is based on state boundaries.
27) Venue is about convenience: it is not a constitutional issue, and you cannot collaterally attack on venue.
28) Venue in Federal Court §1391
a) § 1391(a) DIVERSITY:
b) Venue can be in:
i) The district where the ∆ resides, if all ∆’s live in the same state.
(1) If all defendants reside in the different districts in the same state you can lay venue where anyone of them resides.
(a) If one resides in southern district of state A and the other resides in the northern district of A; you can chose
either one.
(b) Venue uses the term residence. But this is usually considered domicile.
ii) The district where the substantial parts of the events or omissions giving rise to the claim arose, or where a substantial
part of the property subject to the action is located.
iii) If there is no federal district that satisfies the A or B, you can file in a district in any district where you could get personal
jurisdiction over one of the defendants.
c) § 1391(b) FEDERAL QUESTION:
d) Pretty much the same as Diversity requirements… slightly different wording on opt 3 (a judicial district in which any
defendant may be found, if there is not district in which the action may otherwise be brought). A little easier than requiring
personal jurisdiction. But –since Burnham, anywhere person may be found, service means have personal jurisdiction.
i) The district where the ∆ resides, if all ∆’s live in the same state.
(1) If all defendants reside in the different districts in the same state you can lay venue where anyone of them resides.
(a) If one resides in southern district of state A and the other resides in the northern district of A; you can chose
either one.
(b) Venue uses the term residence. But this is usually considered domicile.
ii) The district where the substantial parts of the events or omissions giving rise to the claim arose, or where a substantial
part of the property subject to the action is located.
iii) A judicial district in which any defendant may be found, if there is not district in which the action may otherwise be
brought
e) 1391(c) Corporations:
i) Resides in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.
ii) If there are multiple districts in the state, it is subject to jurisdiction in any district in that state where it would be subject
to personal jurisdiction if that district were a separate state.
(1) If there is no such district, the corporation shall be deemed to reside in the district within which it has the most
significant contacts.
29) Transfer of Venue (Staying in the same court system; one federal ct. to another federal ct.)
a) Tran3sfor- The court transferring the case away.
b) Transferee- The court receiving the case.
i) This court must have proper venue and personal jurisdiction over the defendant.
c) Forum non conveniens: The forum is not convenient. A common law principle. To invoke this doctrine, the forum has to
have proper jurisdiction and venue, but that there is another forum that would be much more convenient to hold the case.
i) This results in a dismissal of the case, and is now only used when cases involve foreign countries. (Vs. transfer of venue,
in which case just moves. Easier to get a transfer of venue in federal court than FNC in state court.)
ii) When making a motion for forum non conveniens you must prove that:
(1) If the remedy provided by the alternate court completely sucks, it’s a no go. This would have to be where the
government is so different and there is basically no remedy, an example might be a third world country.
(2) ∆ must show that private interest factors (convenience, witnesses, evidence) and public interest factors (burden on
the courts) compel a dismissal.
(3) The plaintiff’s forum is presumed to be correct, and deference is usually given to their choice of forum.
iii) Piper Aircraft: FNC exists when the alternative forum for a federal case is outside the US. Takes into acct all the private
and public interests. Scotland existed as an alternative forum; administrative and public interest; localized conflict,
private interest – strong connections with Scotland; Ct finds American public interest insufficient.
(1) Plaintiffs were from Scotland and basically the only reason they came to America was b/c we have big awards.
d) §1404 and 1406 now supercedes forum non conveniens. Forum non conveniens still applies if the alternative forum is in
another country. (Based on idea of different sovereigns. FNC still important for state courts, where states are still sovereign.
Fed cts are all one unit and just transfer in b/t. Alternative forum is always another fed ct).
e) §1404: Change of Venue
i) The transfor court has proper venue.
ii) For the convenience of all parties and witnesses;
(1) Balance of interests b/t ∏’s and ∆’s.
iii) And in the interest of justice, (standard) a district court may transfer any civil action to any other district or division
where it might have been brought.
iv) When the case is transferred, the law of the original state is follows.
f) §1406: Cure or waiver of defects
i) A transfer that allows a case to be transferred from a forum that lacks proper venue to a forum that has venue—rather
than forcing the plaintiff to “start over,” he is allowed to transfer, helping w/ statute of limitations considerations, etc.
ii) When a case is transferred under §1406, the law of the original court does not follow the transfer.
(1) In GOLDLAWR V. HEIMAN, The US Supreme court interpreted this to mean that even if the court lacks personal
jurisdiction, they can transfer the case to a forum that does. Is this just? It is a criticized decision, but still good law.
a) ERIE ANALYSIS
i) If no apparent clash, apply the state rule, and STOP.
ii) Is there an apparent clash between state law and federal procedural law? If so, isolate the conflict.
iii) If there is a clash b/t federal and state law, is it codified? (rule or statute)? (RULES ENABLING act makes FRCP
trump)
(1) If yes, use Hanna II analysis:
(a) Is the federal rule or statute constitutional?
(i) If no (which is unlikely) apply the state rule, and STOP.
(ii) Does it really regulate procedure? (Does the rule have a legitimate procedural purpose?). If yes,
CONTINUE to 1.3.3.1.2.
1. The FRCP will almost always have a “legitimate” purpose given the process they go through to be
codified.
2. If the federal rule only has incidental effects on substantive rights, it is still procedural (Sibbach –
medical exam). Rules Enabling is very favorable to federal law. Erie was too deferential to states.
Pendulum swinging back to find a balance.
(b) In most cases, if the rule has a legitimate regulatory purpose, it will trump the state rule
(i) Because this is a Federal Rule or statute, the Rules of Decision Act does not apply. The Rules Enabling act
gives the Supreme Court the power to prescribe general rules of practice and procedure and rules of
evidence for cases in the US District court. Therefore, the federal rules should be applied.
(c) However, if applying the federal rule interferes with important state substantive policies, read the federal rule
narrowly to avoid the clash. (Walker v. Armco Steel—a statute of limitations tolling issue. Aberration.)
33) ** Note Cases:
i) Burlington Northern: conflict b/t Rule 38 which gave ct discretion to apply a penalty for frivolous appeals and AL law
requiring 10% penalty on ∆ for unsuccessful appeals. Court found that Rule 38 really regulated procedure…and that
while there was a substantive state policy involved (sovereignty), the rule really was about enforcing rights, not the
rights themselves. In both cases, ∏ could receive compensation.
ii) Ricoh – expands Hanna analysis to include both federal statutes and federal rules developed under the Rules Enabling
Act. Strictly interested in applying federal rules or statutes when they conflict with state policies.
iii) If there is a clash b/t state and federal law and the federal law is not codified (rather it is judgemade procedural law)
apply the Erie/York/Byrd.
(1) Is the state rule outcome determinative? (York)
(a) Would it cause someone to forum shop to get or avoid the rule? Then it probably is outcome determinative.
(i) If no, apply the federal rule, and STOP.
(ii) Yes, Does the state law have a legitimate substantive purpose (Is it meant to regulate behavior in the real
world?)
1. If yes, then apply the state law over the federal law and STOP.
2. If no substantive purpose, then use Byrd balancing test.
3. The Byrd balancing test: weigh the federal and state interests in applying their interest in applying their
individual procedural. Must be a countervailing federal interest for the federal law to trump. If the
issue is constitutional (i.e. right to a jury), then fed law will usually trump over state interests of
convenience, etc.
Hanna II
Is there a clash b/t
state law & Federal
Procedure?
Unless
Not Substantive
but procedural.
No Yes Apply State Law
Apply Byrd
Balancing Test
Must be a countervailing
federal interest to trump;
Constitutional issue will
usually trump
34)
35) **Note Cases
i) Cohen : federal rule didn’t require bond; state law did. Must apply state law b/c bond would make ∏ forum shop.
ii) Woods: also might forum shop to escape state law.
iii) Ragan: different times when claim commenced – when filed or when service? State law determines when case begins…
b/c it’s an inherent part of statute of limitations, which is substantive.
Modern Pleading
38) Purpose
a) To give notice to the other side so that they can mount their defense. This is called notice pleading, rather than fact pleading,
where the party bringing the claim has to give the facts of their claim.
b) A screening process for absurd claims and defenses.
c) To isolate the issue in dispute.
39) Rule 7(a): Pleadings allowed:
a) Complaint and answer
i) The complaint commences the case
b) Counterclaims and reply
c) Cross claims and answer
d) Third party complaint, and if there is a third party, a third party answer
e) No other pleadings allowed, except the court may order a reply to an answer or a third party answer.
40) Rule 8: the general pleading rule (5 Requirements)
a) 8(a): Claims for relief: Pleading shall contain:
i) A short and plain statement:
(1) On the grounds of jurisdiction (subject matter); and
(2) Showing the pleader is entitled to relief.
ii) A demand for judgment for the relief the pleader seeks.
(1) (Doesn’t say have to state facts or cause of action…more liberal than state action because discovery comes after
claim…don’t have access to the facts and other devices.) Facts are determined at discovery.
(2) If the pleading fails to state any parts of the complaint, the court can dismiss w/o prejudice (which means that you
can replead) as opposed to (with prejudice which means, you cannot refile)
b) 8(b): Defenses and Denials: In making an answer, party shall:
i) State defenses to each claim asserted, and shall admit or deny the charges upon which the other party relies.
ii) Facts that are presumptively within the knowledge of the ∆ must be admitted or denied.
iii) If party does not have sufficient knowledge to answer, they say so, and this acts as a denial.
iv) You can generally deny all claims, but you have to have reasonable belief that the denial is true (in accordance w/ Rule
11).
v) The three possible answers are admitting, denying, or saying I don’t know.
(1) Saying “I don’t know” is the equivalent to denying.
vi) Negative pregnant: If a party states, “They are not entitled to $40,000 of relief, that is essentially saying they are entitled
to $39,999.
vii) If you don’t deny a claim or admit to insufficient knowledge, you admit.
c) 8(c): Affirmative Defenses (the “but” defenses—a separate issue the ∆ raises that would win the case for the ∆)
i) A party must plead affirmative defenses in their answer. Use it or lose it. These include:
ii) Statute of frauds, duress, payment, res judicata, estoppel, contributory negligence, failure of consideration, or any other
matter constituting an affirmative defense.
iii) If affirmative defenses are mistakenly plead as counterclaims, the court will treat the pleading as if it had been properly
filed as an affirmative defense.
iv) Distinguished from a denial is that an affirmative defense is that it adds a new fact.
d) 8(d): Effect of failure to deny
i) If you fail to deny averments (aff. defenses) in a pleading that requires an answer, then you admit. If an answer is not
required, it is considered that the averments are denied.
ii) If no responsive pleading is required it shall be taken as denied or avoided.
e) 8(e): Pleading to be concise and direct; Consistency
i) Each averment of a pleading shall be simple, concise and direct.
ii) If one of the averments is insufficient/frivolous the other legitimate sections of the pleading are still valid.
41) Rule 9: Pleading special matters (2 Requirements)
a) 9(b): Fraud, mistake, and condition of the mind
i) All averments of fraud or mistake must be stated with particularity. (Use form 13).
(1) Policy is that fraud claims should not be made lightly, because they can really harm a company’s reputation.
(2) Denny v. Carey says you need only slightly more notice—You must make sufficient identification of the
circumstances.
b) 9 (g): If you wouldn’t expect damages to arise from the injuries claimed, you need to plead them specifically.
(1) Damages that wouldn’t be expected to flow from a particular event.
(2) (Policy: to protect defendant from unfair surprise.)
(3) Ziervogel v. Royal Packing Co., Pg. 524 if you experience increased blood pressure from a car accident, must state
specifically. Can’t bring up later to include with other injuries.
ii) **Also look at Rule 54c – gives party relief even if not included in the pleading…jury can determine what expectations
are. The jury can award an amount above what plaintiff claimed in their complaint. Reasoning behind this is simple.
After all facts are shown in case the jury may determine that the facts require a larger rewarded than what was plead
originally. This is in addition to 9(g) rule that special damages have to be pleaded.
42) **STRATEGY: general vs. specific pleading – If you plead specifically, you might plead yourself out of the courtroom b/c you
show facts that don’t add up to any law that grants recovery. If you plead generally, you cannot be thrown out through FRCP
12(c) because a judgment on the pleadings cannot be decided since you did not give any facts. But – lawyers try to use pleading
to get advantage with judge for motions, summary judgment, etc. If your case is very strong and you are moving towards a
settlement, pleading specifically is a good strategy.
Joinder (7 Requirements)
43) Permission (Rules) + Power (Statutes)
47) Permissive Party Joinder: when you MAY join more than one party in a single suit.
a) Multiple ∏’s suing a single ∆ or Single ∏ suing multiple ∆’s.
b) Permission: 20(a): Parties may be joined when claims arises out of the same transaction or occurrence, AND there is a
common issue of law or fact. Defendants may be joined when the claims brought against them arise out of the same
transaction or occurrence, AND there is a common issue of law or fact.
48) Compulsory Party Joinder: Rule 19: Parties that MUST be joined to the lawsuit. (Will usually be raised by the ∆ on rule 12(b)(7)
motion to dismiss for failure to join an essential party issues).
a) Is the outside party necessary?
b) 19(a): Situations where there is an outsider that must be joined.
i) No complete relief to the current parties if the outside party is not joined. (Think Plaintiff)
ii) There will be a practical impairment of the outsider’s interest. (Think Outsider)
(1) The court cannot do anything against a party not joined. You don’t have a legal interest because you don’t have due
process.
iii) If there is a current party facing multiple or inconsistent obligations (ex. One signer on a two-party bank account sues the
bank). ∆ faces multiple liabilities. (Think Defendant)
(1) The focus on this test is on the defendant.
iv) If ANY ONE of the situations is present, the outsider shall be joined. If you cannot join the outsider due to jurisdiction
issues, then you analyze whether you should dismiss the case under 19(B).
c) 19(b): When court decides outsider CANNOT be joined b/c of jurisdiction issues (personal or SMJ), but determine whether
or not case can continue “in equity or good conscience” ---- Ct weighs factors to determine whether absent party is
indispensable, and the case should be dismissed. At this point we have already decided that the party should be joined in 19a.
Weighs:
i) ∏’s and ∆’s interests in letting the case go forward.
ii) Public interest (Courts and community) in seeing that the dispute is resolved in an efficient manner.
iii) If the issue is raised on appeal, the public’s interest in preserving a valid decision will weigh heavily.
iv) Absentee Indispensible- Occurs when the case is thrown out.
50) Intervention: when an outside party wants to be joined in the suit. Two types:
a) 24(a)(2): Intervention as a right. When an outsider meets the test, they shall be permitted to intervene (but there’s still some
discretion). TEST:
i) When a statute of the US confers the unconditional right to intervene (pretty much allows the government to intervene in
certain cases); or
ii) A three part test:
(1) The party has an interest in the case (can be economic, or otherwise); and
(a) There can never be a legal interest b/c outside parties are not legally bound by a judgment (Pennoyer).
(2) Unless the party is joined, there will be a practical impairment of their interest; and
(3) There is not someone already in the suit that adequately represents the interests of the outside party.
iii) More liberally construed than the compulsory joinder rule because an outside party is not being forced to join against
their will.
iv) Jurisdiction: usually supplemental jurisdiction, because of CNOF. However, 1367b applies to non-diverse ∏’s who seek
to intervene. If the ∏ is not diverse, look to 19 b to determine if the case should be dismissed. NOT TO ADD
INTERVENOR, but to dismiss if outsider can’t intervene and join.
v) Policy: efficiency v. the wishes of the ∏ who brought the suit.
b) 24(b): Permissive Intervention
i) When applicant’s claim or defense has the same question of law or fact.
c) 24(a) and (b) both require timely intervention: a judge will be more likely to let a party in at the outset of the suit versus
after judgment.
d) Can join either as ∏ or ∆ (Atlantis and Acme example).
51) Interpleader
a) Allows someone who has a piece of property/stake to which multiple parties have a claim to deposit the stake with the court,
who will join all possible claimants.
b) Claims against that stake are limited solely to the court it is deposited with.
c) Pure Interpleader: the ∏ is NOT a claimant to the stake.
d) “Bill in the nature of Interpleader”: The ∏ is also a claimant to the stake.
e) The stake must be truly limited: you can’t just pick an amount to deposit to limit your liability.
f) Statutory Interpleader
i) 1335: Gives subject matter jurisdiction over interpleader claims.
ii) Applies to instruments with a value over $500.
iii) Requires minimal diversity
(1) At least two of the claimants must be diverse. If the stakeholder is also a claimant he can be counted for diversity
purposes. Can be two ∆’s or ∏.
iv) 2361: Creates nationwide service of process for interpleader proceedings.
v) 1397: Venue for interpleader: Proper venue in any district where one or more of the claimants reside.
g) Rule Interpleader (Rule 22)
i) Requires complete diversity.
ii) Amount in controversy must be greater than $75,000.
iii) Must follow rule 4 for service of process.
iv) Follows the normal venue statute (1391).
Summary Judgment
69) During discovery, it may appear that although the plaintiff has stated a valid claim, they are not going to be able to prove it.
a) As opposed to a 12(b)(6) motion to dismiss, which claims that there is failure to state a claim on which relief can be granted.
i) Does the law recognize this as a claim.
b) Not a decision about whether a party is right but whether there’s no issue of fact.
c) If evidence beyond the pleadings is introduced for a 12(c) motion, it would become a summary judgment motion.
70) The judge must look at the evidence in a light most favorable to the non-movant.
71) 56: Summary Judgment (4 Requirements)
72) 56(a): For Claimant
a) The party seeking to recover upon a claim, counterclaim, or cross claim or to obtain a declaratory judgment may, at any time
after 20 days from the commencement of the action (i.e. from the filing) or after service of a motion for S.J. by the adverse
party.
73) 56(b): For Defending Party
a) A party against whom a claim, counterclaim, or cross claim is asserted or a declaratory judgment is sought;
b) May, at any time, may at any time, move with or without supporting affidavits for a S.J.
74) 56(c): Motion and Proceedings Thereon
a) The Standard for Summary Judgment: If there is no genuine issue as to any material fact, the moving party is entitled to
judgment as a matter of law. Evidence must be considered in a light most favorable to the non-moving party.
i) Does not impede on 7th amendment rights to trial by jury, because it is an issue of law, not of fact that is to be decided.
ii) Partial Summary judgment can be granted if there is one issue in a claim where there is no dispute of fact.
iii) If there is a genuine issue of material fact the court must not grant summary judgment.
(1) The court cannot determine who to believe and who not to believe.
(2) If there is admissible evidence contradicting each other there cannot be summary judgment.
iv) Any evidence from discovery may be used to support motion. Must use enough to get you a directed verdict at trial, as
long as the other side is unable to dispute the evidence, then you’ve discharged your duty to support.
(1) Ex. ∏ attaches copy of K to prove there was a K. Could get a directed verdict on the existence of a K and then
response is triggered.
(2) Pleadings are not used because they are not under oath.
(a) However, if there are admissions in the pleadings they can be used.
75) 56(e): Form of Affidavits: Further Testimony; Defense Required
a) Two phases of the summary judgment
i) The Support Phase: The person who makes the motion must support the motion.
ii) The Response Phase: The other party must respond to the motion.
iii) Burdens:
(1) Burden of proof at trial – either on ∆ for affirmative defenses or on ∏ to prove elements of claim.
(2) Burden of persuasion on summary judgment motion – always on movant to persuade that there is no material
issue of fact and the moving party is entitled to judgment as a matter of law.
(3) Burden of production – have to produce something to support the motion. This turns on whether you have the
burden of proof at trail. If, typically, make a motion of summary judgment on an issue that you don’t have burden of
proof on of trial, how do you show the burden of production? Pt out to the ct the lack of evidence in the record to
establish the other side’s claim. Don’t necessarily have to produce affirmative evidence of your own.
iv) How a motion is supported depends on who bears the burden of proof on the issue at trial:
(1) If the movant has the burden of proof on the issue at trial:
(a) Phase one: Support Phase: The movant must support the motion with enough credible evidence that would
warrant a directed verdict. If properly supported, triggers response phase.
(i) This makes it hard for plaintiffs in torts cases to move for summary judgment.
(b) Phase two: Response Phase: The non-movant must respond with evidence that shows a genuine issue of
material fact. Can’t just use pleadings or allegations. If this is met, the motion is denied. If they cannot show a
genuine issue of material fact, the motion is granted.
(2) If the non-moving party (Usually the plaintiff) has the burden of proof at trial:
(a) Phase one: Support Phase: The movant must support their motion by either evidence that negates the other
side’s claim (affirmatively negating the claim—ex. I was out of the country at the time of the incident),
(b) OR points out a lack of evidence in the record supporting the non-moving party’s claim.
(c) Phase two: Response Phase: Same as above—the non-movant must respond by showing a genuine issue of
material fact.
v) A federal district court should take a heightened burden of proof standard into consideration when deciding a motion for
summary judgment.
vi) Evidence – affidavits, depositions etc – must be admissible at trial. Witnesses for affidavits must be competent to testify
at trial. Must meet evidence rules. Judge is not supposed to weigh evidence or decide who’s right – just whether or not
there is a material issue of fact.