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11/12/2011 7:51:00 AM

Forum Selection Personal Jurisdiction (PJ) jurisdiction over persons or things In what states can the sue the The court must have power over something o o o Over the Over the s property if so go to constitutional due process clause?

Does a statute give us jurisdiction? Types: due process sets the outer boundary, tells us how far the courts can go in exercising jurisdiction (fact means that it falls within the due process circle, must have a statute that allows the exercise of jurisdiction) o In Personam o o In rem Power of the s property Power over s property Quasi In Rem Power over the defendant Always want In Personam

In personam jurisdiction: Power over the o Relatedness: does the claim arise from what the did in the forum General: can be sued in this forum on a claim that arose anywhere Historically always thought this was true. If had continuous and systematic ties with the forum. Changes in Goodyear. Goodyear 2011: just having continuous systematic ties isnt enough Where the is essentially at home (limitation) o o For a human being (domicile) What about businesses? o State of incorporation and principle state of business but maybe other places as well Purchases and sales in the state are not enough. Has to be a physical presence as well. Specific: the is sued for a claim arises in the forum Pennoyer: gives us what are still called the traditional basis in personam jurisdiction:

Constitutional Analysis: must find out what principles the case gives us

was served with process in the forum when served with process (general jurisdiction) (presence) agent was served with process in the forum is domiciled in the forum (general jurisdiction) consents to jurisdiction At it became more mobile it became easier to run into a state commit a tort and escape

Expansion of Pennoyer is Hess: Upheld under the nonresident motorist act, by driving into this state you consent to jurisdiction for a motor vehicle crash case, you are appointing a state official for service. Expands Pennoyer from consent to implied consent

International Shoe: (by now you can serve process outside of the forum, there seems to be 2 parts of the test: contact and fairness, it does not overrule Pennoyer (consistent with Pennoyer)) The court is not pushing the traditional basis, restate the prinicipal. (nothing in shoe that says pennoyer is dead) Test: Such minimum contacts with a forum that jurisdiction does not offend traditional notions of fair play and substantial justice

McGee: holds jurisdiction in California with a Texas insurance company when there was only one contact: The solicited the business from California California had an interest in providing justice in its residents

Hanson: teaches us under International Shoe the contact must result from purposeful availment Cannot be an accident must reach out to the forum

World Wide Volkswagen: NY family buying a new car in Messina NY. Moving to Arizona. Involved in a car wreck in Tulsa. Sue in Oklahoma. Court held that they could not sue in the NY retailer and NY distributor in OK. There is no purposeful availment The did not reach out to OK. The act of the got the car to OK Surprising because it was foreseeable that the car could get to OK. Foreseeability is relevant

Foreseeability that the product would get there is not enough Must be foreseeable that the could get sued in the forum

Burger King: k case. Headquartered in Miami wants to sue little guys in Michigan. Can it sue in Miami Clear that there 2 parts to shoe: contact & fairness (separately) Must have a relevant contact before can look at fairness On facts of the case: Michigan guys reached out to Florida Argued that the little guys said it was not fair Supreme Court: the burden is on the to show that the forum is so gravely inconvenient that you are at a severe disadvantage in litigation. Almost impossible to do that Relevant wealth of the parties does not matter

Asahi: Stream of Commerce I make components like valves in state A. I sell components to a manufacturer to state B. That manufacturer B puts my components into its machine and sells it machines to states C, D, E. My valve gets into C, D,E but I didnt send it there. Do I have relevant contacts? 1: Brennan theory: it is a contact if I put it in the stream and reasonably anticipate that it will get C, D, or E. 2: OConnor theory: you need what Brennan said plus need an intent to serve C, D, or E. (I.E., advertise or customer service there)

McIntyre (2011): the court split 4, 2,3 no law English company manufacturing enormous machine. Reaches out only to a company in Ohio. The Ohio company then sells machines all over the company. Sells a machine in NJ, guy injured, sues the English company. Court says no jurisdiction. Under Kennedy 4 Justices adopt the OConnor theory, did not target NJ Bryer: 2 justices: on the facts here we do not need other one. No stream of commerce to NJ. Only one machine sold to NJ. Dissenters: Ginsberg: if you target the US then you can sued in any state where the product hurt someone. (only 3 votes)

Still have to argue the Brennan Theory and OConnor Theory.

Burnam: a NJ sued in California for a claim that arose in NJ. Does California have general jurisdiction? Does service of process in the forum? Traditional Basis in forum enough? o Scalia: presence when served is enough, International Shoe does not apply here. International Shoe (contacts) o Brennan: Must apply shoe to every case.

Framework: Is there a traditional basis? Because of the Burnam split. Must still look at international shoe. Must be a relevant contact between the and forum Purposeful availment ( reached out to the forum) o o Brennan and OConnor Circular Foreseeability that the could get sued in the forum

Is it Specific or General Jurisdiction? Relatedness: does this claim arise out of s contact with the forum o o Yes? Specific No? General Jurisdiction: must be essentially at home in that forum

Fairness: Burger King Burden is on the to show that it is unfair o Factors: Inconvenience for the Forum states interest (McGee) s interest Interest in efficiency Shared substantive policies (Kulko)

Statutory Analysis: Every state has statutes that allow jurisdiction based upon the traditional basis State statutes that go after non-residents

Non-resident motorist act (always specific jurisdiction: arising from a claim from you driving your car) Long Arm Statute: almost always specific jurisdiction (broader, go after other things) California type: says we have jurisdiction to the constitutional limit Laundry list long arm: where the state lists a bunch of things that will subject the non resident to jurisdiction to a court. o o Commits a tortious act in the forum** Gray v. American Radiator: manufacture widgets in state A and sell in state B. It blows up and you are injured and want to sue in state B. I am a nonresident. Long arm statute says personal jurisdiction over nonresidents who commit tortious act in state B. Did a I commit a tortious act in state B? Courts are spoilt Some say yes because you were injured in state B Some say no (NY) because tort was committed in state A where widget was made. ARGUE BOTH WAYS

Hypo: lives in Maryland and takes a drive into VA, he sees a clock shops, goes into the shop and buys it and takes it home to Maryland and put it on the wall. A spring breaks and the bird flys and hits him in the chest. Can the sue the clock maker in Maryland? o Is there a Maryland statute? No traditional basis. Going to be a long arm statute. Maryland long arm statute has in personam jurisdiction who commits a tortious act in Maryland. Clock shop owner didnt do anything in MD my making clock in VA can say that the was injured in MD so owner did commit tortious act. No traditional basis. International Shoe o Is there a contact for clock maker in MD

Purposeful availment: did Uncle Joe reach out to MD? LOOK AT THE FACTS. At some point it can look more like McGee (solicitation)

Foreseeability: argue it. Nobody knows the answer

Relatedness: does this claim arise from the contact with the forum? Yes. This is an example of specific jurisdiction. Long arm statute is always going to be specific jurisdiction

Fairness factors: Burden is on the , Uncle Joe (clock maker) look for facts, apply facts, come to an answer Inconvenience for the , neighboring state so not inconvenient Does the state of Maryland have an interest What about plaintiffs interest: injured might be tougher to go to VA. Efficiency Shared substantive policies

In Rem: jurisdiction over s property Law suit is about who owns the property

Quasi In Rem requirements: thing of value, present in jurisdiction, belonging or arguing to the , seized by the court, pursuant to notice, is the exercise over this constitutionally fair? How closely related is the thing that was seized to the s cause of action? Suit has nothing to do with who owns the property Pennoyer: all about Mitchell v. Neff Case that would have been in personam if could get in personam. Used the land to gain jurisdiction. o It is ok but the court must seize the property at the outset of the case. If we had done that Mitchell v. Neff would have done that. Gotta have a statute: it is not the long arm Going to be an attachment statute, court can attach property that the owns or claims to own. Constitutional statute:

Shaffer v. Heitner: must seize property at the outset PLUS the must meet international shoe. The constitutional test is the same as in personam

Notice: Notice and a Chance to be heard. In regular law suit it means service of process o Governed by Federal Rule 4 Process consists of the summons (comes from the court) and copy of the complaint Rule 4(a)(1)

Service can be made by any nonparty that is at least age 18 Rule 4(c)(2)

How do we serve a human being? 4(e)(2): there are 3 choices

personal service: walk up to the and hand him the

documents, can be done anywhere substituted service: o o o must be done at the s dwelling or usual abode must serve of suitable age and discretion WHO RESIDES THERE Serve the s agent, appointed by contract or law 4(e)(1): methods of service allowed by state law of the state where the federal court sits or where service is affected. Often state law will give you service through mail How do you serve a business? 4(h)(1) can serve an officer or a managing or general agent (pretty open ended, someone with some job responsibility) 4(e)(1) also applies (state methods) 4(d): Waiver by mail, not service by mail mail the process and waiver forms to the and send a self-addressed stamped envelope, fills out waiver form and mails it back to you What happens if the doesnt mail it back? o Going to serve process in one of the formal ways but the has to pay for it. Unless she has a good cause for returning the waiver form. o Constitutional Standard Waiver of Service

Malane v. Central Hanover Bank: must be reasonably calculated under all of the circumstances to apprise the party of the preceding. If you meet rule 4, you are fine. (notices to allow the to see what the case is about and see what they are being sued for)

Jones v. Flowers: if you become aware that the did not receive then you might have to try another way

Direct & Collateral Attack within the litigation on personal jurisdiction o o Collateral Attack can use when no direct attack(didnt show up or defaulted)attack on PJ in later proceedings Direct Attack

Nationwide Personal Jurisdiction: statutes are generally the exceptions to normal practice. When nationwide statutes come into play it is possible that the court will make minimum contacts analysis that may different somewhat form those concept developed for domestic o A court evaluating personal jurisdiction involving a federal cause of action will be less concerned with issue of state/federal relationships and more with issue of federal policies underlying the federal right that has been asserted by the o The court should examine only whether minimum contacts exist or whether the court should also look to whether an exercise of jurisdiction reasonable in a particular district

Personal Jurisdictionparties where SMJexercised over cases and claims (federal court can only hear certain cases, if not then they cannot hear the case) Subject Matter Jurisdiction (SMJ): nothing to do with personal jurisdiction, worried about what court you go to in the jurisdiction? State court or federal court. (must invoke diversity or FQ)constitutional or policy values. Whether the federal district court can hear this case. Diversity of Citizenship doesnt have to bring the claim to federal court o 1332(a)(1) of judicial code (statute 28 USC) case is between citizens (not residents) of different states complete diversity rule: there is no diversity if any is a citizen of the same state as any what is the citizenship of a human being (natural person)? A US citizen is a citizen of the US state in which she is domiciled. o o Only have 1 domicile To establish a domicile: you have to be present in the state physically

must form the intent to make it your permanent home

Hypo: born and raised in California and goes to college in NY for 5 years. Doesnt know where he wants to live. Moves to DC for law school but doesnt know where he wants to be. Wants to go to medical school in Oregon. I dont want to go to California. His citizenship is in California because he hasnt formed an intent to live anywhere else.

World Wide Volkswagen: robinson never get to Arizona because of car wreck have formed in intent to move there however domicile is still NY b/c they never had a physical presence in Arizona.

Citizenship of Corporation: can have multiple citizenships 1332(c)(1) determines citizenship o o states where incorporated (prof has to tell you) AND citizenship of the one state where it has its principle place of business (ppb) (can expect you to know how to do) Hertz: PPB is where the managers direct control coordinate corporate activities. Nerve center

What is the citizenship of non-incorporated businesses: partnerships, LLCs Look to the citizenship of all the members of the business. Non-incorporated business can be members of all 50 states.

amount in controversy exceeds than $75,000 must exceed $75,000 (excluding interest) aggregation: where you have to add multiple claims to get over $75,000 aggregate plaintiffs claims if there is 1 plaintiff v. 1 defendant (no limit to # of claims, can be totally unrelated claims) 1 against 1 : sets out 2 claims 40,000 and 50,000 < 75,000 cannot aggregate if there are multiple or

1 v. 2 cannot aggregate the claims

If there are joint claims use the total value of the claim HERE THE # OF PARTIES IS IRRELEVANT Look for the word joint

Federal Question Jurisdiction (FQ) 1331 of judicial code Citizenship and amount of controversy dont matter) Well completed complaint rule: Look only at the complaint In that complaint focus on the claim itself and ignore everything else o o Ask if the is enforcing a federal right Louisville v. Motley: couple had lifetime passes on the railroad, congress passes a law that railroads cannot give away free passes. Motelys sue the railroad. Motelys say 2 things: 1. you are breaching the contract 2. That new federal statute does not apply to us. **no federal question jurisdiction: does not state the question in the claim. The second part is just anticipation. Must arise on a well pleaded federal complaint Need a case that arises under federal law

No amount in controversy & doesnt matter if they are from the same state

Supplemental Jurisdiction: must file at least 2 counts. what if no diversity or FQ? Does not get a case get a case into court supplement can another claim into the case **can get it from an impleader or joinder or counter claim 1367 of judicial code: gets nonfederal non diversity claims into federal court does 1367 (a) grant jurisdiction? Answer is yes if it meets Gibbs United Mine Workers v. Gibbs (labor disputes and the sued the on 2 claims federal law and state law) P(TN) -- two claims: 1. Federal law 2. State law D (TN) o o Claim # 1 does gets into federal court What about claim #2? No federal question or diversity

Can use supplemental/ pendant jurisdiction as long as it is part of the same case as claim #1

Test: if the two claims share a common nucleus of operative fact. Arise from the same real world dispute Always met if those two facts from the same transaction or occurrence (T/O)

Does 1367(b) take it away? soley based on diversity? was it claim made by a ? Was it made against an original or one joined under 14, 19, 20, 24? 1367 APPLIES ONLY IN DIVERSITY CASES takes away supplemental jurisdiction only from certain claims by the not the

Hypo: Gibbs under the statute: Claim #1 federal question Claim #2, state question: non diversity, non federal question o o Did arise from a common nucleus of operative fact 1367(b) only applies in diversity cases therefore doesnt bar claim

Means if you get to C the court has power to hear the claim but it can refuse.

o Attack on Subject Matter Jurisdiction get either direct or collateral but not enforced as rigidly in personal. Usually it means that if sued and litigate the merits you cannot be heard later to hear collateral attack. Sometimes you are allowed even though you already made a direct attack b/c the federal value is so great it overrides the one bite at the apple rule
o Removal: defendant is sued in state court and wants case (removed) to federal court. Gives that choice. Takes the case from state to federal trial court. If the case does not belong there the federal court remands to the state court. any count that establishes federal jurisdiction can be removed 1441,1446, 1447 It is removable if the case if it meets Federal SMJ (case meets diversity and Federal Question)

Instate rule: EXCEPTION: CANT REMOVE DIVERSITY CASE IF ANY IS A CITIZEN OF THE FORUM (doesnt apply in federal question) Hypo: case filed in state court the is a citizen of south Carolina sues 2 (NY & GA) amount in controversy a trillion. Sued in GA. Cant remove because a is a citizen of the forum. o If FQ case rather than diversity, it is removable

All defendants must agree Can remove only to the federal district that embraces the state court. If dont remove then remanded to state court.

Venue: venue tells which federal court you can sue, does not apply to removal 1391(a) & (b): choices are the same o can lay venue in any district where ALL s reside if all reside in the same state you can lay venue where any of them reside Reside: for a human being the court say it means domicile (citizenship) for businesses look to 1391(c) o o a business resides in all districts where it is subject to PJ when the case is filed any district where a substantial part of that claim arose Going from one federal trial court to another o Original trial court is the transferor Sending case to transferee Both of the statutes: TRANSFEREE MUST BE A PROPER VENUE AND HAVE PJ OVER THE must be true without waiver by the 1404(a): the transferor is a proper venue: we can transfer based on convenience of parties and witnesses and in the interest of justice where we are now is a proper venue but there is another place that makes more sense Going to look at public and private factors (discretion of the judge) 1406(a): transferor is an improper venue: you can dismiss or transfer (up to the court) Transfer of venue: moving from one court or another in the same judicial system

Transfer Statutes 1404 & 1406

Forum Non Conveniec: where a court dismisses because there is another court that makes more sense the is saying it all might good but it is still not the right forum where this should be heard (primarily case law) Dismiss because transfer is impossible because it is in a different judicial system Cant transfer from a state court in Kansas to state court in California Piper Aircraft v. Reno: plane crash in Scotland (everything is Scottish but the plane manufactured in the US) Federal court should dismiss because this case belongs in Scotland and let them litigate in Scotland. s let this they are not going to get strict liability, damages etc. Factors the same as in the 1404 transfer (public and private factors) (footnote 6) does the have anywhere else to sue? Is there good personal jurisdiction in that court. Weigh court congestion, weigh court.. (go back) Court allowed the dismissal even though not going to recover as much in the foreign country. As long as it will get justice is what is matter.

o Transfer statute: normal remedy where it is found by the judge used to be to dismiss the action & let the refile. The federal court can use 1404 empowers the federal district judge to transfer the case to some other district court in the U.S.
Erie Doctrine

We are in federal court in a diversity case and the federal judge must decide an issue. The question is on that issue does she have to follow state law. o Black Letter Law: federal judge must apply state substantive law o Eerie says it is commanded by: Rules of Decision Act: section 1652 judicial code Constitution: 10th amendment o What is a matter of substance? Elements of a claim are pure substance Starting point is Hanna v. Plumer: federal rule 4 allowed substituted service of process but state law it did not. What do we do? Supreme Courtis there a federal directive on point? Yes. Therefore Federal rule wins.

Showed us there is 2 parts to the Eerie doctrine: o Is there a federal law on point that directly conflicts with state law? If yes then apply the federal law as long as it is valid (FRCP is valid if it meets the Rules Enabling Act section 27(b)(2)no FRCP has ever been held invalid). Cant be substantive. It is based on the supremacy clause of the constitution What if there is no federal directive on point? What is substantive? Outcome determinative: o Guaranteed trust: under state statute of limitations case would be barred. No federal directive on point. Court said must apply state law: statute of limitations is SUBSTANTIVE. o Outcome determinative: if you ignore the state law it will lead to a different outcome Balance the Interests: Byrd v. Blue Ridgecase law you have a 3 part weighing test: strength of federal procedure, strength of case procedure, and is it outcome determinative o State law said that a particular question must be decided by the judge not the jury. Case comes up in diversity. There is no federal directive on point. Does the federal judge have to follow state law or should she sent it to a jury. o When not obviously substantive you should follow state law UNLESS there is a federal interest in doing it differently. Court can ignore the rule and do its own thing. Twin Aims of Eerie: ask at the outset of the case: if the federal judge ignores this state law, will it cause litigants to flock to federal court? If yes? That is a bad thing, unfairness. o Avoid Forum shopping

Inequitable administration of law Hypo: under state law a particular kind of case cannot go forward as a class action. Must sue individually. The files in federal court under diversity. Under FR 23 class action is appropriate. First go to Hanna. Is there a federal directive on point? Yes rule 23 is on point. You simply apply the federal as long as it is valid. Valid under the rules enabling act because it is procedural. Hypo #2: state X passes a statute aimed at reducing health care costs. Statute says that if you sue for medical mal. your claim must go to arbitration before you go to trial. hate this. After arbitration, you may go to trial and the jury will be told what the arbitrators said. Diversity case is filed against the doctor in state X. Can the federal judge do what it wants. Does a federal issue apply? No. Eerie issue: o Is this rule outcome determinative? Who knows. o What about balancing the interests? The state has an interest, statute is trying to drive down health care costs. Federal interest in jury trial you dont lose it. o Twin aims of issue: if the federal judge ignores this state law will it cause people to flock to state court? Yes. Every who can go to federal court It is also unfair, only non-citizens of

state x cant do it. o 28 is a source of federal procedure as opposed to the rules, conflicts with state procedure, federal procedure winssupremacy clause. It always loses.
Pleadings: documents we file

15(a)amended pleadings (b) pleadings before or after trial Moore v. Moore (c) filed after the statute of limitations ran 3 circumstances where treated as a relation back to the original pleading: some statute allows relation back, when the amended pleading arises from

the same transaction or occurrence it displaces, relation back where you are adding a party the other side got notice in a reasonable timely matter & they werent unfairly prejudiced
o Complaint: the pleading by the ; filing this starts a case Rule 8(a) requirements Statement of SMJ must state why in federal court Short and plain: statement of the claim o o Historically did not need to do much notice pleading only had to put enough detail to put the other party on notice Supreme Court in Twombly and Ickball (this applies to all cases): changed the rules Demand for relief The court will ignore conclusions of law must plead facts supporting a plausible claim Court will use its own experience and common sense to decide if it is plausible (subjective) There is some situations where must plead with detail under fraud, mistake and special damage (that does not normally flow from an event) o Response Rule 12 tells us: the must respond within 21 days of being served with process. You can respond: o Motion: not a pleading, request for a court order Under rule 12: (e) motion for a more definite statement (f) motion to strike (to knock stuff out of pleadings) (b)**important: 7 defenses, motions to dismiss can be put in a motion or an answer o o o o o o o SMJ PJ Venue Insufficient process: there was a problems with the documents Improper service of process Failure to state a claim Failure to join a rule 19 party (indispensable) 9(b) and 9(g)

(g) & (h) timing o defenses 12(b)(2)-(5) must be put your first rule 12 response (by motion or answer) (waivable defenses) o o defenses 12(b)(6)-(7) can be raised for the first time anytime through trial 12(b)(1) can be raised anytime

Hypo: sues , files a motion 12(b)(5) failure for service of process (motion denied) now files her answer and in the answer no personal jurisdiction and no venue. (those 2 defenses are waived because they must be in the first rule 12 response)

Answer: is a pleading Must do 2 things in an answer Must respond to the complaint o o Admit Deny o Failure to deny is an admission not true for damages

Say you do not know (cannot use that if the info is in that control)

Must raise affirmative defenses: Rule 8(c) o o Going to raise new fact E.g statute of limitations Must plead them or risk waiver

Joinder: determines the scope of the litigation (ALWAYS EXPECT SMJ) o Claim joinder by the o 18(a) a can join any claim: dont have to be anything same Can we get it into federal court (SMJ) Counter Claim: claim against and opposing party (someone who sued you) 13(a) & (b) o (a) compulsory counter claim: one that arises from the same transaction or occurrence as the s claim MUST BE ASSERTED IN THE PENDING CASE OR CLAIM IS LOST

Claim joinder by the : is suing someone else

Ex: A and B driving around each in their own car, collide. A sues B litigate someone wins. Case # 2 B sues A dismissed because it was compulsory counter claim. 4 Exceptions: o o o

when the action was commenced, the claim was the subject of another pending action o the opposing party sued on its claim by attachment (quasi in rem) or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.
o (b) permissive counter claim: one that does not arise out of the same transaction or occurrence of the s claim. Can sue on this separately o Hypo: A and B driving around and have car wreck. Case 1: A (NY) sues B (PA) claim for $100,000gets into federal court under Diversity. B files a compulsory counter claim for her injuries Bs claim is for $125,000. o Compulsory counter claim must assert it here same transaction Address SMJ: diversity NY v. PA and greater than $75,000 Hypo: same but B files a compulsory counterclaim against A but for $50,000. Compulsory counter claim same transaction or occurrence. SMJ: This claim does not invoke diversity, also does not invoke federal question, try to invoke Supplemental jurisdiction. Does 1367(a)? does it meet Gibbs? (yes T/O) compulsory counter claim always meets Gibbs. 1367(b): no diversity, only takes away by the claim by the this is a claim by a we are ok. How to address: Points for 13(a) counter claim

Points why no FQ Why No Div. Why 1367 (A) met Why 1367(b) not met

Cross Claim against a co-party (one def against a co def.) must arise from the same transaction occurrence. NEVER COMPULSORY 13(g) HYPO: A,B,C: 3 way collision A (MS) going to sue B (NY) C (NY) assume claims for more than $75,000. Case is in federal court under diversity. Going to represent C what claims are you going to filing against C. o o o File a compulsory counter claim against A (must assert it here) Subject Matter Jurisdiction? Yes it invokes against diversity NY v. MS and greater than $75,000. May assert a cross claim against B (dont have to) against a co party and arises out of the same transaction or occurrence. Does not invoke diversity. No diversity. Supplemental Jurisdiction: 1367(a): Gibbs (cross claims always arise out of same transactions or ) 1367(b): no diversity, however this is a claim by a so you are ok.

Proper parties can sue multiple parties 20(a): who may be joined: tool that is available to the when structuring the case (multiple ? Multiple ?) How to figure out if have co- o 20(a)(1): can have co- if they arise from the same T/O and raise at least one common question How to figure out if have co- o 20(a)(2) exactly the same: same T/O and raise at least one common question. Must assess subject matter jurisdiction**

Necessary and Indispensable Parties: Rule 19 (who should be joined in a case) Hypo: is the architect of the case sued the absentee is not the party. Absentee (A) can be grabbed into the case because it is necessary. o Is the absentee necessary?

19(a)(1): yes necessary if she meets any of the tests in (a)(1) (a) if without A the court cannot accord complete relief (b)(1): if As interest may be harmed if he is not joined (focus on the A) (b)(2): if As interest may subject the to multiple or inconsistent obligations o o o o o joint tort-feasors are never necessary Fair to absent parties How can you repair the damage Will the judgment be adequate Does the have anywhere else to sue Weighing factors:

Hypo: I own 1000 shares of stock in XYZ. You come along and say we agreed to buy it jointly so it should be half yours. You sue the corporation wanting an order cancelling my stock. I am the absentee. Am I necessary? If not brought in it is going to be inefficient. Cannot accord complete relief if Im not brought in. Can my interests be hurt if not joined my stock would be cancelled and can lose half of stock My interest may subject the company to multiple or inconsistent obligations to me and you.

Is the joinder feasible? Yes then brings it in Personal jurisdiction Subject matter jurisdiction as long as doesnt screw up diversity

What if joinder is not feasible? BAD. Options Either proceed without me Or dismiss the case o 19(b) factors 4: whether there is alternative forum available Labels absentee indispensible (label you put in at the end) 12(b)(7) as a basis of dismiss

Impleader: third party practice, only done by the . Going to being in with someone new. Called third party (TPD). permissive always and dont have to bring it in. o o if it starts with the letter C they are claims between existing parties. If it starts with the letter I we are joining somebody new. Rule 14 (a)(1): only can do this that may be liable to you for the s claim against you indemnity or contribution watch for it with joint tort-feasors sues the ; wants to sue someone new (TPD) that action is a impleader claim Owen equip.: once the TPD is entered then the can assert a claim against TPD but must arise out of the same T/O. Must assert SMJ over the claims

Intervention: absentee brings herself in, o up to you to do two things: o intervene timely absentee must choose which side of the case to come in

Intervention of right: Rule 24(a)(2): you have a right to intervene if youre interest may be harmed if not joined. Timely application to the judge to intervene, interest in the action, interest is at risk, current parties do not adequately represent the interests of the current party Same test for necessary parties Must assess SMJ

Permissive intervention: Rule 24(b)(2): may be able to do it if your claim or defense and the pending case have at least one common question with the case (up to the court) (timeliness & common question of law or fact) Must assess SMJ

Class Action (joinder on steroids) o Rule 23 Always brought by the rep., the rep sues on the half of the class. 23(a) before you start, 4 requirements

numerosity; so numerous that joinder of all members is impractical, no magic # up to the court. Commonality: there is some question(s) in common Typicality: Reps. claim must be typical of those of the class, who is going to be there to represent the person beyond the

Rep. will fairly and adequately protect the interests of the class

23(b) Types of class, gives you a choice (dont have to satisfy all) (b)(1) & (b)(2) very specific, mandatory class actions o b(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole (will not certify the class if monetary damages outweigh the equitable relief) (b)(3) must show 2 things: o o common questions predominate over individual questions The class action is the best way to handle this dispute Higher the stakes the higher the interests are the class members in filing their own claims. Usually are suing for damages, usually after money.

Motion to certify: not a class action until court certifies it. Rule 23(g) Court must define the class and must identify class council

Notice of pendency 23(d) may direct to appropriate class (b1) (b2)

23(c)(2)(b) IN THE (B)(3) CLASS THE COURT GIVES INDIVIDUALS REASONABLEY IDENTIFIABLE o o o notice tells you that you can opt out and if not you will be bound only required in the (b)(3) representative has to pay for the notice

Who is bound by a class judgment? All class members except those who opted out of a (b)(3) There is no opt out of a (b)(1) or (b)(2)

Settlement or dismissal of a certified class must be approved by the court. Rule 23(e) o Judge will notified class members

SMJ Could be a federal question Tougher is what do you do with a diversity jurisdiction with a class action o o For citizenship you look only at the rep. being diverse from all citizens Amount in controversy: Allapata: we are ok if the reps claim exceeds $75,000

Discovery: Federal rules are pretty liberal about information allows electronically stored information (ESI) **always weighing costs against benefits o Required disclosure Rule 26(a) Must produce certain information without a request for it. 26(a)(1): initial required disclosure (very early in the case) o o o must identify people with discoverable information that you may use on the merits. Identify documents, ESI, and things that may relevant in the case as well 26(a)(2): witnesses 26(a)(3): later, must tell them everything you are going to raise at trial

Discovery Tools: which can be used to get information from a non party

Deposition Rule 30: oral deposition Rule 31: written deposition, answers are always oral Can depose a party or a non party but must subpoena a nonparty o Lose spontaneity

Interrogatories Rule 33: written questions answered in writing under oath o o o 30 days in which to answer can only be sent to parties, never to nonparties Shaded to

Request to produce Rule 34: asking to see things (only to be used by parties) o Make a written request and it appears like it can only be sent to parties BUT (c) can use it with nonparties but must hit the nonparty with subpoena

Medical Examination: Rule 35 request to the court o o Must get a court order Must show: Condition is actually in controversy Good cause Can be only ordered by a party or someone in a partys custody or control. *pretty narrow Parent and child

Request for admission Rule 36 ONLY BE SENT TO PARTIES o They force you to admit or deny any discoverable matter.

Subpoenas Rule 45 o Ordered to show up at a deposition and bring evidence including an electronic file

Scope of Discovery: Standard 26(b)(1) can discover anything that is relevant to a claim of defense.. Can get stuff that is reasonably calculated to lead to admissible evidence o This standard is broader than admissible

Privileged matter is not discoverable

Confidential communication ie: between lawyer and client, doctor and patient, spouses etc.

Work Product 26(b)(3): trial prep materials o o material prepared in anticipation of litigation protected from discovery; free loader problem Hypo: I operate a charter boat service, you hire me to take you on a 3 hours tour. The boat sinks and you are injured. The person sues me. Hire a private investigator to go down and investigates and finds an eye witness and gets a statement. Checks weather, maintenance records. Write it all in a report to me. It is in my file. You sue me. Can you get the file? It is work product, you cant get it. o Not absolute; can overcome work product protection if you show: Substantial need Not otherwise available o Ex: witness statement and you cannot find that witness. Might be able to get witness statement. Some work product is absolute o Mental impression, conclusions, opinions, and legal theories you cannot get. Work product DOES NOT have to be generated by a lawyer. Can be generated by the party herself or any rep. of the party

Pretrial Adjudication o 12(b)(6)motion to dismiss for failure to state a claim the court never looks at evidence that cannot be 12(b)(6) The court only looks at the face of the complaint, trying to determine if everything the said is true, can she win. Can the law recognize a claim here? If not then no claim stated o Twombly and Ickball: remember that the must plead facts supporting a plausible claim Motion Summary judgment Rule 56 judgment without a trial (radically different from 12(b)(6)) Must show: The moving party must show that there is no genuine dispute on a material fact Entitled to judgment as a matter of law

Trying to weed out cases where we dont need a trial; the only reason to go to trial is when there are disputed issues of fact Evidence in summary judgment given by the parties , in writing (usually in affidavit form) are given to the judge are under oath Is there a genuine dispute on a material fact? If yes? Must deny summary judgment If no? then might give summary judgment Supreme Court: loosen up a little bit smaller courts, give more summary judgment. Hypo: walking across the street the and he gets hit by s car. b/c ran a red light. moves for summary judgment and gives affidavits from clergy. They all say didnt have a red light, he really had a green light. Pleadings are not under oath. must respond with evidence. does come up with an affidavit from a alcoholic, drug addicted, convicted swinger: must deny summary judgment. Is there a dispute on a material fact? Yes.

Trials & Motions o 1 reason to go to trial is to resolve questions of fact o Jury decides the questions of fact. No jury: bench trial and the judge with decide the facts in a bench trial. Must demand a trial in writing Rule 38(b) Must demand a trial in writing or you waive it

7th Amendment: right to a jury trial in federal jury civil cases (not required by a state court ) preserves the right to a jury, only preserves it in actions at law not equity preserves: locked into a historical test o o whether we get a jury today depends on whether we would have a jury in 1791 in England. (1791 when the 7th amendment was ratified) Chauffers union v. Terry: You ask is this claim analogous to a claim that existed in 1791? Common law analogue in 1791 Almost always yes Remedy that the wants. o o Law: remedy at law is damages & $ to compensate you for the harm Equity: no jury for equity Injunction Specific performance Focus on the remedy

Rescission Reformation

How to determine the trial when both? Hypo: own a house and have a wonderful back porch and to survey the view. On weekend morning you enjoy coffee and croissants. A guy is trespassing on your property. You yell at him to not to. He gives you gesture and says no. You sue at law: you will get damages. You want an injunction which you would have to go to equity. Enforced in personam: puts him in jail. o Do you get a jury? Trespass? J Damages? J Injunction? N/J

Beacon Theaters and DQ: you get 3 rules o o o Determine the jury right issue by issue, no longer get a center of gravity If the issue of fact underlies both law and equity claims you get a jury Usually we try to jury issues first.

Motions: Relate to the function to the judge o Motion for judgment as a matter of law Judgment as Matter Of Law Rule 50 (directed verdict) At trial and if this granted the judge takes the case away from the law. Standard 50(a)(1): reasonable people could not disagree on the result. Looking at the evidence coming in at the trial and says this can only go one way therefore, Im just going to rule here. o o Must be done on motion Cannot move for this until the other side has been heard at trial. Under 50(a)(2) timing

Hypo: law requires showing a,b,c,d are true a,b,d nothing C. moves for JMOL because reasonable people could see that C was missing.

Functional equivalent of summary judgment

Renewed motion for matter of law RJMOL Rule 50(b) JNOV Comes up after trial. We are at trial the court denies JMOL now the jury returns a verdict and the court enters judgment on the verdict. That judgment isnt a judgment that reasonable people would have reached. Hypo: law requires showing a,b,c,d are true a,b,d nothing C. moves for JMOL because reasonable people could see that C was missing. o Denies it. Let it go to the jury, the jury comes back with a decision for now the is going to move RJMOL now going to take away from and giving to the Must move for this w/in 28 days after the judgment To make this motion must have moved for JMOL at a proper time at trial If you did not move for JMOL during trial you have waived JMOL

Motion for New trial Rule 59(a) Same timing as RJMOL Here we have a mistake, something that went wrong and it affected the outcome. If we grant new trial we are going to start over. Only to fix some problem that might get reversed on appeal anyway. o o Limitless grounds for this This can be granted without a motion, can do this on its own New trial is a much less drastic than RJMOL

New trial a party may win again where RJMOL takes verdict away from one party and gives it to another side.

Appeals o Going from US trial court to the US court of Appeals Final judgment rule: in federal court you cannot appeal until the trial court enters a final judgment. How do we know what is a final judgment? After making this order, does the trial judge have anything left to do on the merits of the case. o o If yes, then not final, it is interlocutory If we make a motion for summary judgment: the judge denies it. Can you appeal? No. Still have the rest of the case Cant appeal a motion of a new trial. By statute: o o 1292(a) injunctions and things like that 1292(b) where there is a big issue of law that the trial judge and court of appeals should be appealed now. Federal Rules o o 23(f) orders for class certification Judge-made o Collateral order rule: very narrow When you have a collateral issue and it is unreviewable if you have to go through a case. Only thing usually is a claim of immunity from suit. allows you to ask court of appeals to look at it court decides the case to one of the parties 54(b) multiple parties or claims Interlocutory Review:

Claims & Issue Preclusion o Res Judicata, Claim Preclusion Going to get one suit to vindicate a claim , if you sue twice on the same claim, the 2nd claim is dismissed Must show 3 elements: o Both cases were brought by the same claimant against the same Same parties in the same configuration

Show that case 1 ended in a valid final judgment on the merits 41(b): everything is on the merits unless it was based on jurisdiction, venue, or indispensible parties.

Both cases involved the same claim How do we define claim: Majority view: the claim is the T/O Minority view: Primary Rights, you get a different claim for each right invaded.

Hypo: L and M are driving around, they collide. L sues M for PI from the car wreck. Litigated, case determined, we dont care L sues M for property damage from the same crash. Is element #1 met? Both cases are L against M #2: valid final judgment on the merits #3 both involve the same claim? Majority view: L suing M twice about the same wreck Minority view: not dismiss because it is a different claim for each right invaded. PI & Property right

Hypo: case #1 L sues M litigate case over, M sues L for accident because of #1 same claimant against the same Might dismiss because of compulsory counter claim because of T/O

Going to be obvious; there is always 2 cases. 1 case has gone to judgment the other case is pending o o does the judgment in case 1 stop us from litigating us in case 2 **order of judgment

Issue Preclusion/ Collateral estoppel Litigated and determined a, b,c,d case # 2 comes along x,y,z,a Deem section a established and prove x,y,z Case #1 ended in valid final judgment on the merits Must show that same issue was actually litigated and decided in case #1 Must show the issue was essential to the issue in case #1 Elements:

Against whom is issue preclusion used? Same in every court: you can only use it against somebody who was a party to case #1. (includes people represented by a party) (required by due process)

By whom is issue preclusion used? Doctrine of mutuality: you can use it by someone who was a party in case #1. (not constitutionally required. This rule can change, eroding and can erode)

Non mutual Issue preclusion used by a person who was not a party to case #1 Scenarios where it has been eroded o Non mutual defensive issue preclusion: used by someone not in case #1 who is the in case #2. Hypo: you own a car and have a roommate. You lend your car to your roommate. You are vicariously liable for what your roommate does. Your roommate goes out and collides with someone. Case #1: person sues the roommate and litigate and the roommate winsall the other persons fault Case #2: person sues me for lending my car: no claim precludes different defendants. o o o Person already litigated Elements 1-4 are all met. Element 5: used by me and I wasnt a party to case 1. Under mutuality I cant do it. Most courts say its ok if the other person had a full chance to litigate in case #1. Going to get a collateral Issue o Non mutual offensive issue preclusion: using by someone not a party in case #1 someone is the not a party in case #1 Hypo: you own a car and have a roommate. You lend your car to your roommate. You are vicariously liable for what your roommate does. Your roommate goes out and collides with someone. Case #1: person sues the roommate and litigate and the roommate winsall the other persons fault Case #2: I sue the person for the accident, want collateral estoppel. o Steps 1-4 are met exactly the same as before

5: its being asserted by you not a party to case #1 non mutual, offensive () most courts say no. Important trend says yes as long as it is fair. Parklane Hosiery: Factors: had a full chance to litigate case # 1, could foresee multiple litigations, I could not have joined easily in case #1, no inconsistent judgments cant pick out the one you like

Rules 4 (excluding k-m), 12, 13, 14,15,18,19,20,22 (statutory interpleader), 23 not 1 or 2, 24, 26(a)(b)(3), 30,31,33,34,35,36,45,56. Title 28 1331,1332,1367, 1391, 1404, 1441,1446

Interpleader: must be multiple claims that are inconsistent with eachother, claims adding up to over 100% Rule 22 Statutory interpleader nationwide personal service of process, diversity jurisdiction is usually used but amount in controversy is only 500, diversity of citizenship only requires 2 claimants are diverse