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CIVIL PROCEDURE

PROFESSOR BUNDY FALL 2011UNDERLYING POLICY CONCERNS

Majorpolicies &

themes

Accuracy Want a flexible procedural system in order to prevent procedurefrom dominating substance.

Assure that the merits of the parties claims, not proceduralmissteps, determining the outcome of lawsuits.

Fairness Fair system should not only reach the right result, but shouldalso appearfair to litigants.

Rules/procedure should not offend fundamental principles ofjustice.

Influences peoples willingness to comply with adverse decisionsand builds trust in legal system.

Often clashes with efficiency goals

Efficiency/cost How best to minimize the time that courts, parties & attorneys

must spend in the litigation process to reduce the costs oflitigation.

FederalismConcerns

Strong federalism overtones exist in some Civ Pro issues.

Focuses on maximizing DPC values without federal courtsimpinging on state judicial systems.

DUE PROCESSProcedural

Due Process

Protected bythe 5th

(binding onfederal

government)

and14th

(binding onstates)

Amendments

Due Process Clause (DPC): No state shall deprive any person of life, liberty, or property withoutdue process of law.

1. Guarantees every procedural rule/process must meet min. standards of fairness, namelynotice, hearing, & an impartial judge.

2. Specifies governments obligation to ensure integrity of competitive process, whereparties lack the resources to do so

3. Identifies constitutionally unacceptable dignitary harm & silencing.4. Governs: (1) personal jurisdiction; (2) right to appointed counsel; (3) any time an

individual is facing a deprivation of life, liberty, or property.Fairness: Due process is violated if a practice/rule offends our fundamental principles of justice.Right To Be Heard: An individual has the right to be adequately notified of charges &proceedings and the opportunity to be heard at these proceedings. Critical in ensuring accurateoutcomes; each party responsible for its own presentation before a passive tribunal (adversarysystem) creating an incentive to make the strongest case for ones own positions, and moderatingtendency to bring non-meritorious claims.Impartiality: The person/panel making the final decision over the proceedings must be impartialin adjudicating the matter before them.Balancing Test: Determining whether a particular rule/procedure would violate DPC requiresconsideration of three distinct factors: (1) private interests at stake; (2) risk of erroneousdecisions and the value/availability of procedural safeguards; (3) governments interest,including fiscal & administrative burdens of additional procedural safeguards. (Elridge)

POLICY:Uphold legal systems values ofaccuracy, fairness , & cost/ efficiency, encouraginglawful behavior and voluntary compliance with judgments, and minimizing cynicism about thesystem.

1. Accuracy: Desire neutrality/lack of bias & precision, i.e. to minimize the probability &expected magnitude of error. Intrinsic in this is ones right to be heard.

2. Fairness: Perceptions of fairness influence willingness to comply with adverse decisions &obey the law in every day life. Based on trustin the system, standing (measured by

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treatment by authorities) and neutrality (the extent to which people perceive a level andconsistent playing field)

3. Cost: Must balance financial costs and strain on legal system with competing procedural

values.

Right toCounsel inCivil Cases

RULE:An indigents right to appointed counsel is measured on a case-by-case basis byconsidering relevant precedent and by assessing the interests at stake via the Mathews v.Elridge test, balanced against the presumption of the right to appointed counsel only incriminal cases, or in civil cases when D may be deprived of physical liberty.

NOTE: This does not mean that every D whose physical liberty is at stake is entitled to counsel, onlythat those are the only cases in which the right has ever be shown to exist.Elridge Factors:Weigh the (1) private interests, (2) governments interests, and (3) risk oferroneous decisions against the stakes of deprivation of Ds personal liberty. If the private

interests > the States, and the risk of error was great, the Elridge factors would overcome thepresumption againstthe right to appointed counsel and due process would require appointmentof counsel.

CASE AUTHORITY FOR DUE PROCESSLassiter v. Dept. of Social

Services

Facts: State sued D, an indigent parent, to terminate Ds parental rights to her son.

D was not appointed counsel for the hearing and represented herself. Holding:Court held D not entitled to appointed counsel because although Ds interest &state interests in protecting the child was high, risk of error was low due to thelack of expert testimony & complicated evidence. Dissent: Deprivation parentexperiences at loss of a child is severe enough to be compared with the loss ofpersonal liberty. Trial was similar to a criminal prosecution, and the commonnature of parents in these situations is to be indigent, lack education, and be easilyintimidated by authority figures. Therefore, risk of error without representation isgreat.

Turner v. Rogers Facts: D owed back child support to P, and imprisoned for contempt of court forfailing to pay. Issue: Is an indigent always entitled to appointed counsel inproceedings where there is a risk of incarceration? Holding: Court held there is nopresumptive entitlement to counsel even when there is a risk of incarceration. It isunlikely that P (whose interests are ultimately the cause of the courts actions) will

be represented by counsel, and the crucial element to both Ds applicability forstate-sponsored counsel and his ability to pay child support are capable of beingdecided without legal representation. There are also available safeguards to avoiderroneous deprivations of liberty such as financial questionnaires and notice to Dthat his ability to pay is at issue.

BEFORE STARTING A LAWSUIT IN FEDERAL COURTReqs

PERSONAL JURISDICTIONBasics of

Personal/Territorial

Jurisdiction(PJ)

Defined: The power of a state court to engage in binding adjudication over a person or thing.

NOTE: Personal jurisdiction is one of the Rule 12(b)defenses that may be waived if not timely &properly asserted.Framework for PJ:The Power Theory of JurisdictionStemming from the field theory concept of sovereignty that states resemble individual nations,jurisdiction was originally based on the states power over people within that states borders;

PersonalJurisdiction

SubjectMatter

Jurisdiction

Service/Notice

Venue

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14thAmendment:Government

must respectall of the legalrights that are

owed to aperson

according tothe law.

Article IV FullFaith & Credit

Clause:Requires

states

recognitionand

enforcement ofother states

civil judicialproceedings.

however, a state had no authority to exercise jurisdiction over persons outside its territorialboundaries. The adjudication ofPennoyer v. Neffset the foundation for a states ability to protectits citizens in dealings with non-residents, establishing the states authority to bind non-residents

to judgments within the state based on physical presence or attachment theory.Modern PJ: To meet the growing complexities of national markets and a mobile society in the 20thcentury, courts developed a new test for determining whether a states assertion of jurisdictionover a non-resident would comport with due process, incorporating the underlying presencerequirement from Pennoyerto base jurisdiction on the level of Ds activities in the forum.Although the amount of contacts sufficient to justify a courts jurisdiction is in flux, it isdetermined by balancing the continuousness of the contacts and the relation of the contacts tothe cause of action. The decision in International Shoe marks the shift from the requirement ofpresence due process-oriented system of jurisdiction. In addition, notice was henceforthrecognized as an independent requirement outside of the assertion of PJ.Understanding PJ:

Longarm Statutes: A law enacted by each state that allows its court system to exercisejurisdiction over an out-of-state D, provided that he has sufficient min. contacts with the forum.

Limitations on PJ found in long-arm statutes are distinctfrom constitutional limits imposed bymin. contacts test.

1. DPC does not actually confer PJ on state courts; it only defines outer bounds ofpermissible jurisdictional power. It is up to each states legislature to actually grant the

power to its courts to exercise PJ by statute.2. Some states have enumerated specific activities likely to satisfy the Shoe min. contacts

test, such as owning prop. within the forum state, committing a tort within the state,transacting business with state, etc. Others have more general provisions, stretching theforum states authority over a D as long as jurisdiction is not inconsistent withconstitutional restrictions.

3. POLICY: Ensures state citizens a local forum in which to litigate causes of action that arisefrom the activities of non-residents.

Constitutional Basis:1. 14th Amendmentsets the outer limits for the courts power to subject persons or things to

liability.

a. Forbids states from depriving any person of life, liberty, or property withoutdue process of law. A state would violate this guarantee if its courts enteredjudgments against Ds without following a fair judicial proceeding.

b. Fair procedure includes not only such traditional elements as the right to counselor to cross-examine witnesses, but also appropriate limits on the places where a D

In personam

(people/corporations)

Consent Domicile PresenceMinimumContacts

Specific General

DPC/14thAmendment &Article IV: FullFaith & Credit

State Long-ArmStatute

Adequate Notice

In rem

(property)Quasi in rem

(prop-->people)

Type I

Like in rem w/specific parties

Type II"Attachment J"

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can be required to defend a lawsuit.2. The court must have given D adequate notice of the action against him, and an

opportunity to be heard as required by DPC.

3. State courts failure to appropriately assert jurisdiction or provide notice to D would leadto invalidation of the judgment as a violation of due process.

4. NOTE: This is a different type of due process than Lassiter; here, due process limits the statespower to enter judgments over non-residents in accordance with procedural fairness.

Types of PJ:1. In Personam: An action directed towards a person or a corporation2. In Rem: An action regarding property within a state to resolve rights in property against

the whole world.3. Quasi In Rem: (Type I): Jurisdiction regarding rights in property against specific

individuals; (Type II): Jurisdiction based on attachment; property is seized by the state asa jurisdictional vehicle for the exercise of in personam PJ against a non-resident.

Bases for In Personam PJ:1. Consent: (General Jurisdiction)

a. By Appearance:i. Ds voluntary appearance before the court

ii. Filing suitin a particular forum.iii. A corporation who appoints an agentfor service of processiv. Failing to make a timely objection pursuant to FRCP Rule 12(b).

b. BUT NOTE: D may make a special appearance to contest PJ without his presenceconstituting submission to jdx.

c. By Contract (Forum Selection):i. A party may waive jurisdictional objections and contract specifically that

any dispute arising out of the contract will be adjudicated in the courts of aparticular place.

ii. These forum-selection clauses are generally enforced provided theyare fundamentally fair, i.e. unless there is a strong showing that it shouldbe set aside, even if the contract was made without equal bargainingpower between the parties.

iii. Forum clauses may not be held valid if they lessen, weaken, or completely barPs ability to bring suit, if it is an attempt by the corporation to avoid liability

for injuries (an exculpatory clause), if it requires suit in a foreign forum, orif it is otherwise contrary to public policy.

iv. Must not be exculpatory!2. Domicile: (General Jurisdiction)

a. Individuals:Ones true and fixed home to which one intends to return after anyabsence. One established, domicile continues until superseded by a new domicile.

b. Corporations: Its place of incorporation, principal place of business, or where ithas a sufficient level of business activity that is continuous, systematic, andinvolves an extensive physical establishment.

c. POLICY: Assures that there is at least one place D can always be sued.d. POLICY: The state accords its citizens certain privileges, and offers protection to

their persons and property; therefore it is only fair that a state may hold itscitizens responsible to answer suit. States authority is not terminated by the mere

fact of a citizens absence from the state provided he is still domiciled there.3. Presence in State (Tag J): (General Jurisdiction)

a. Ds physical presence in the forum to receive service of process is a sufficient

basis for the court to acquire PJ over him, no matter how brief his stay is.b. Presence test has not been overruled by a court, although there has been

contestable reasoning for its maintenance as a valid justification for the assertionof PJ.

c. Does not work against a corporation by serving an individual employee of the

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corporation within a state that the corporation does not have min. contacts with.d. No long-arm statute needed

4. Min. Contacts: (Specific or General Jurisdiction)

Checklist for Modern Personal Jurisdiction(1) Does the state long-arm statute authorize the court to exercise jurisdiction underthe circumstances?(2) Is the assertion of jurisdiction constitutional under the DPC?

(a) Does D have sufficient min. purposeful contacts with the forum?(b) Does the claim arise out of or relate to Ds contacts?(c) Does the exercise of jurisdiction comport with traditional notions of fair play &substantial justice?

(3) Was noticegiven to D in a manner reasonably calculated to inform him of the actionaffecting him?

a. State may not make a binding judgment in personam against an individual orcorporate D with whom the state has no contacts, ties, or relations.

b. Applies to individual as well as corporate defendants.c. Requires application of a three part test: (1) Ds purposeful availment/min.

contacts with the forum state (2) the cause of action arising out of/relating toDs contacts with the forum, and (3) the states assertion of PJ comporting withtraditional notions offair play & substantial justice.

d. POLICY: A corporation that chooses to conduct activities within a state accepts

(implicitly) a reciprocal duty to answer for its instate activities in local courts. Dshould understand that its activities within the state will have an impact there, andthat those activities may lead to controversies & lawsuits. A state has a right toenforce the orderly conduct of affairs within its borders by adjudicating disputesthat arise from such in state contacts.

Establish Purposeful Availment & Min. Contacts:1. Activities Generally:Is the quality and nature of the contacts sufficient to support

jurisdiction?2. Foreseeability: Would D reasonably anticipate being haled into court in the forum?

a. This is not just the likelihood of a product made by D ending up in a particularstate, but rather that D sought economic benefits from his contacts with the statethat would justify his submission to suit.

3. Purposeful Availment: Did D avail himself of the privilege of conducting activities in theforum, obtaining benefits from his purposeful activities and invoking the benefits &protections of the forum states laws?

a. Submission to PJ is the price Ds pay for deliberate efforts to derive benefits fromor conduct activities in a forum state.

4. Purposeful Direction:Did D act directly in the forum state, or outside the state with theintention of having an influence inside the forum?Stream of commerce +

a. Stream of Commerce: Much debate has swirled around the application of thepurposeful availmentrequirement in cases where Ds goods reach the forum

Single or sporadiccontacts unrelated

to cause of actionNojurisdiction

Single contactarising out of

relating to cause ofaction

Specificjurisdiction

Continuous butlimited contactsarising out of or

relating to cause ofaction

Specificjurisdiction

Point wherecontacts are

sufficient enough tojustify assertion of

general jurisdiction

Substantial orpervasive contacts

Generaljurisdiction

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through the stream of commerce (i.e. where a non-resident corporation does notimport products into the forum, but sells them to an intermediary company thatdid). Courts are divided as to whether mere awareness that the stream of

commerce may move goods into the forum satisfies purposeful availment. WWVWsuggested yes, but majority inAsahi rejected this premise.

5. Contract: Whole contractual relationship may be sufficient to confer jurisdiction.a. Burger King Factors: (1) choice of law provision? (2) regular payments/reports

into forum state? (3) how were contract terms obtained? (fraud/unequalbargaining power) (4) length of contract?

Consider Whether Action Aries Out Of or Relates To Ds Contacts:1. Because the court derives its power to exercise PJ from Ds voluntary contacts with the

state, that power should be limited to cases arising out of those contacts.2. Specific Jurisdiction: PJ is confined to the adjudication of issues arising out of or

related to the very controversy that establishes jurisdiction.a. Level of activity that gives rise to specific jurisdiction may be continuous or

limited, and the commission of a single or occasional act may be sufficient toimpose an obligation because of the nature & quality of the act.

3. General Jurisdiction: If in-state contacts are so continuous, systematic, & substantial,

D may be subject to suit in the forum over any claim.a. Level of contacts must be substantially higher to support assertion of general

jurisdiction; of such a nature that it is fair to hold D accountable for basically anyclaim.

b. Often connected to an idea of home. Because contacts are so substantial, Dshould expect to be haled into court and would suffer no inconvenience fromdefending there. (Goodyear)

Apply Appropriate Balance of Fair Play & Justice:1. Once min. contacts have been found, other factors may influence the jurisdictional

calculus in determining whether the exercise of PJ would comport with fair play &substantial justice. May tip scales in favor of or against a state courts authority to exercisejurisdiction over a non-resident D.

a. Forum states interest in providing redress to its citizens.b. Ps interest in obtaining relief in a convenient forum.c. States interest in enforcing its own laws & policies.d. States interest in regulating business within its borders. e. Inconvenience to D in defending suit away from home.

2. These factors in themselves are not sufficient to support jurisdiction if min. contacts islacking, and it is unclear whether they are independently sufficient to defeat jurisdiction ifmin. contacts are present.

In Rem Jurisdiction: Property in forum state is the source of controversy.1. POLICY: Indicates expectation of receiving benefit/protection of state laws.

Quasi In Rem Jurisdiction:1. ShafferRule: Because quasi in rem type II (attachment jurisdiction) is really just a

roundabout way of referring to jurisdiction over a person, that exercise of jurisdictionshould be evaluated by the same standard that governs in personam actions in orderto meet the due process requirement, i.e. the minimum contacts test.

POLICY: Min. contacts standard protects Ds individual libertyinterests and ensures statesdont encroach on each others sovereign interests.Although nationalization of the economy de-emphasized state boundaries, loyalty to the

Framers requires federalism not to disappear completely; however, individual liberty >sovereign interests of the state.

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CASE AUTHORITY FOR PERSONAL JURISDICTION

Case Brief Rule(s)

Pennoyer v. Neff(affd in Burnham

v. Supreme Ct.)

Facts: Quasi in rem action to recover unpaid legalfees against an out-of-state person.

Notice by publication is sufficient for in remactions

In-hand service of process is a valid form ofjurisdiction over D (no matter how brieflyhe was in the forum and regardless of hispurpose in being there).

International

Shoe v.

Washington

Facts: Shoe is a DE corp. with its principal place ofbusiness in MO who had no contracts, stock, ordeliveries in WA but had salesman who lived thereand solicited orders only within WA and earnedcommissions based on those sales. Court: Shoesactivities were neither irregular nor casual, and itreceived benefits and protects of state laws.Sufficient contacts.

DPC protects an individuals libertyinterests in not being bound by judgmentsof a forum in which he has established nomeaningful contacts.

Ds contacts with state must be such thatmaintenance of the suit does not offendtrad. notions of fair play & justice.

Dicta: Contacts that are systematic andcontinuous may give rise to PJ over claimsunrelated to Ds contacts with forum (i.e.

general jurisdiction).

World Wide

Volkswagen v.

Woodson

Facts: NY residents were in a car accident in OK

while driving a car purchased from D1, a NY dealer.Ps sued D1 & D2 (the NY distributor) as well as theforeign manufacturer and importer. Neither D1 norD2 did any business, ship or sell products, oradvertise in OK. Court: Two functions of min.contacts: (1) to protect D from litigating in a distantor inconvenient forum; (2) provides limitations onstates asserting power through courts. Even thoughit is foreseeable that a product (a car) will end up in adifferent state, by this standard a seller of anyportable product would be essentially subject tonationwide PJ. Dissent: Ds didhave purposefulcontacts with the state because they purposefullyinjected the car into the stream of commerce, and itis reasonable to anticipate a moving vehicle to getinto accidents in other states.

The foreseeability that is critical for due

process is that the relationship between Dand the forum is such that he wouldreasonably anticipate being haled into courtthere.

Burden on D may also be considered in lightof other relevant factors.

Principle of federalism & state sovereigntyaffirm the importance of limitations on PJmust be some contacts to justifyjurisdiction.

Goodyear v.

Brown

Court:Held that Goodyears subsidiaries were notamenable to suit in a state on claims unrelated to anyactivity by them in the state.

ClarifiesShoe test for general jurisdiction;may be exercised over a corp. who is athome in forum.

Burger King v.

Rudzewicz

Facts: D, a MI resident, sought out to form afranchise relationship with P, a FL corp. D signed

contract establishing 20 year relationship with P,which included a FL choice of law provision. Dnegotiated directly with Ps FL HQ & repeatedly sent

payments to FL. Court: Court analyzed purposefulcontacts in terms of availment. D purposefullyreached out to BK in FL to create a businessarrangement. Ds were sophisticated businessmen(reflected in the extent of negotiations with Ps) andit was clear that D had created continuing obligationsbetween himself and P through contract & payments.All the above made it reasonably foreseeable that Dwould be haled into court in FL.

A contract alone does not automaticallyestablish min. contacts with forum, but

must be evaluated in light of priornegotiations, contemplated futureconsequences, terms of the contract, andthe parties actual course of dealing.

In proving min. contacts, P must show thatD purposefully availed itself of the privilegeof conducting business with forum, thusinvoking benefits/protections of its laws.

Once it has been established that D hadpurposeful contacts, those contacts may beconsidered in light of other factors todetermine whether the assertion ofjurisdiction is fair.

A choice of law provision carriessignificant weight in analysis, because itindicates than the out-of-stater has chosento receive the benefits of the states legal

system.

Shaffer v. Heitner Facts: Greyhound, incorporated in DE, lost a largeanti-trust judgment and P initiated a shareholderderivative suit in DE against officers and directors ofthe corporation (i.e. Shaffer). P filed a motion forsequestration of stock owned by Ds in order toobtain quasi-in-rem jurisdiction in DE, deemed thelegal situs of the stock. Court: PJ must be evaluated

Invalidation of quasi in rem, type II PJ.

Where the property serving as basis for PJis completely unrelated to Ps cause ofaction, the presence of property aloneabsent other ties between D and the statewill not support jurisdiction.

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according to min. c ontacts standard. DEs assertionof PJ based solely on presence of Ds property

violated DPC.No affect on in rem or quasi in rem, type I.

J. McIntyre v.

Nicastro

Facts: P injured his hand in NJ using a machine that

D manufactured in UK, where company isincorporated and operates. D didnt itself sellmachines to buyers in US except for US distributor. Dattended conventions in US, but never in NJ, and nomore than four machines ever ended up in NJ. P filedsuit in NJ. Court: SCotUS majority held no PJ.

Plurality:Due process based on tradition,

not fairness, and tradition focuses onvoluntary submission to a sovereign asbasis of PJshown through his purposefulavailment/targeting of the market in thatstate. States are separate sovereigns fromthe US as a whole.

Concurrence:Rejects pluralitys view thatPJ depends on submission to sovereign andthat purposeful availment requirestargeting.

Aims for a narrow reading; there is noprecedent availment standard.

Concerned about the commercialimplications of pluralitys holding & its

impact on smaller, less sophisticated Ds orinternet distributors.

Dissent: DPC is about individual liberty

interests, not federalism, which are judgedby reason & fairness.

PJ not unfair when evidence shows intlcorp. targeted US as a single market withoutexcluding specific states, especially in lightof particular states specialized markets forDs products. Jurisdictional calculusindicates a strong state and P interest inbringing suit locally, and a lowinconvenience to D.

Helicopteros v.

Hall

Facts: D, a Colombian corp., purchased most of itshelicopter fleet and obtained training for its pilotsfrom a TX manufacturer, but had no place of businessin TX. One of Ds helicopters crashed, killing four UScitizens. Tort action was brought in TX. Court: Dscontacts with TX did not satisfy the requirements ofDPC, ergo no PJ.NOTE: There were no claims for breach of contract;since Ds CEO had negotiated the contract in TX, it is

likely the court would be able to exercise PJ over D

for breach of contract claims.

In order to exercise general in personamjurisdiction, partys contacts with forum

must be of a continuous and systematicnature.

Mere purchases in the forum, even if theyhappen regularly, are not enough for theexercise of general PJ.

Asahi v. Superior

Ct.

Facts: D was a Taiwanese manufacturer of adefective part, who sold later sold that part to alarger company that later distributed product inforum where accident occurred. Court: Min. contactsrequires that there be some act by a party whichwould purposefully avail itself of the privilege ofconducting activities within the forum state (i.e.advertise or market there, or conform to specificstate needs/regulations). A party must do more thanintentionally put goods in the stream of commerceeven if it is expected that the products may reach theforum.

The mere awareness that a product mayreach a remote jurisdiction when put in thestream of commerce is not sufficient tosatisfy the requirement for min. contactsunder the DPC.

McGee v. IntlLife

Ins.

Facts: P, a CA resident, purchased an insurancepolicy from a TX corp. D had conducted no otherbusiness in CA except for this one policy. Court: CAcourt did not violate DPC. D maintained a financialrelationship with a CA resident, and CA had a stronginterest in protecting its residents.

A single contact may be grounds for theassertion of specific jurisdiction.

Carnival Cruise

Lines v. Shute

Facts: Ps were passengers on a cruise ship operatedby D. Shutes had bought tickets in WA, thus agreeing

to a contract with a forum selection clausemandating that injured parties would sue in FL to theexclusion of all other jurisdictions. Court: Court heldthat forum selection clauses made with unequalbargaining power between parties are subject tojudicial scrutiny for fundamental fairness, but wherethey are not lacking in fairness, they should be

Forum clauses may be enforceable so longas they arent exculpatory, i.e. lessen,

weaken or avoid the right of a plaintiff totrial in a court of competent jurisdiction.

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enforced. Here, absent a forum clause D could besubject to suit in too many places; the clauseeliminates this uncertainty and avoids costly pre-trial motions, the savings from which are passed

down to the consumer in the form of lower ticketprices. As to whether it was fair, court must considerwhether D was in bath faith discouraging legitimateclaims, and decides Ds clause isnt exculpatory,therefore fair. Dissent: Courts should take a closerlook at contracts between parties with unequalbargaining power, especially take it or leave itcontracts like this, which wasnt revealed until after

non-refundable tickets were purchased. In the pastforum clauses were found contrary to public policyand unenforceable if they were (1) not freelybargained for, (2) create addl expense for one party

or (3) deny one party a remedy.

NOTICENotice &

Opportunityto be Heard

FRCP Rule 4:Service of

Process

Modern Rule:Notice

reasonablycalculated

Requirements of Due Process: Due process not only requires that the court must have power toadjudicate, it also demands that D have proper notice of the institution of proceedings and anopportunity to be heard; this is an additionalaspect of the due process limitation on a courtsability to exercise jurisdiction.

Service of Process: Means of providing notice to D at the start of a lawsuit by delivering asummons to appear in court and a copy of the complaint.

1. In-Hand Service:Personal delivery to or near the person, if it is made clear what thedocuments are.Always sufficientto provide notice.

2. Substituted Service:Delivery at Ds dwelling or usual place of abode to someone ofsuitable age or discretion.

3. By Mail Service: Two copies of summons & complaint may be mailed to D withrequest that they return a waiver of service.

4. Posted Service:In certain circumstances, notice may be posted on Ds door. 5. Condition of Business: State may require corp. to appoint an agentin the state to

accept service of process.6. Service by Publication: Notice may be published in a local newspaper. Typically

only allowed by the court when other options are unavailable, but may be used tonotify D whose property has been seized by the state.

a. Publication is a notoriously bad way of providing notice due to the sheer

unlikelihood of a party actually seeing it. This is even more true if the party is anon-resident.

b. Publication is usually sufficient for disputes of property located in the statebecause the person who owns the property and hasnt realized its underscrutiny has either abandoned ittherefore surrendering his interest in itorhas left some caretaker who would presumably pass along notice beyondpublication itself.

c. Resort to publication is a customary substitution for notice for persons whoselocation or identity is not possible or practical to ascertain.

d. Publication may be more of a symbolic gesture of notice than actual.

MODERN RULE: DPC requires notice be reasonably calculated under all the circumstances, toapprise interested parties of the pendency of the action and afford them an opportunity topresent their objections.

Calculating Adequacy: The constitutional adequacy of service must be judged on a case-by-casebasis by the practicalities of giving notice.1. Factors (similar to Elridge) include (1) interest of individual parties, (2) graveness of the

risk of lack of notice, (3) cost of improved noticelow for publication, much higher for in-hand.

2. Means employed must be such that one who is desirous of actually informing the absentee

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D might reasonably adopt to accomplish it.3. Reasonableness test: It is not necessary that D actuallylearned of the suit; rather, service

must have been reasonably likely to inform him (as determined by statute), even if it

actually failed to do so.4. D must be given adequate time to prepare a defense and opportunity to present that

defense.

CASE AUTHORITY FOR NOTICE

Mullane v. Central

Hannover Bank &

Trust

Facts: Bank brings action against all trust beneficiaries to get a bindingjudicial declaration, which requires notice & jurisdiction. Bank providednotice to all by publication, even though it had the names and addressesof the beneficiaries. Court: Publication was insufficient notice to thosebeneficiaries whose names and addresses were known to the Bank, butfor those who were unknown or unlocatable, publication was areasonable method of notice.

SUBJECT MATTER JURISDICTIONBasics of

FederalSubjectMatter

Jurisdiction(SMJ)

Art. III 2:Fed. cts. may

hear casesbetweenstates,

betweencitizens ofdifferent

states,

betweencitizens &

aliens, casesinvolvingforeign

ministers,admiralty &

maritimecases, cases

arising underConstitution &federal law.

28 U.S.C. 1331:Statutory

grounds forfederalquestion

jurisdiction

28 U.S.C. 1332:

Defined:A courts authority to adjudicate a particular type of suit.

NOTE: Rule 12(h)(3) dictates that parties cannot waive or consent to lack of SMJ, and a defect inSMJ may be raised at any point during trial or on appeal, by either party or by the court.State Courts: Have courts of general jurisdiction, as well as courts of limited jurisdiction that onlyhear cases of particular subject matters.Federal Courts: Federal courts are all courts oflimited jurisdiction, capable of hearing onlythose disputes for which jurisdiction is specifically conferred by both the Constitution (Art. III 2)and federal statute (28 U.S.C. 1331-32).

Federal Question Jurisdiction: Federal courts have authority to hear cases involving questionsof federal law.

1331: The district courts shall have original jurisdiction of all civil actions arising under theConstitution, laws, or treaties of the United States.

Well-Pleaded Complaint Rule: Jdx determined by whether what necessarily appears on the faceofPs complaint, stripped of anticipated defenses, reveals claim arising under Constitution or lawsof US.POLICY: Efficiency; allows courts to easily determine SMJ from the outset of the case based on Ps

complaint, without having to wait for an answer or otherwise invest any judicial energyadjudicating claims over which it has no jurisdiction.CASE AUTHORITY FOR FEDERAL QUESTION JURISDICTION

Louisville &

Nashville R.R. v.

Facts: Ps claim in a federal suit that D, a railroad, breached its settlementagreement to give Ps free passes. After honoring the contract for over 30 years,

Federal Q

Does claim arise underConstitution, treaties, or laws ofUS?

Is complaint well plead? E.g.,does NOT plead possibledefenses as bsis for SMJ?

Remember, no $$ min.

Diversity

Diversity must be complete

Citizenship: Persons (where youintend to remain); corporations(state of incorp. & PPoB)

Amount in controversy >$75,000.

Supplemental

Con. Power: Original claimproperly brought in federalcourt & add'l claim so related asto form the same constitutionalcase/controversy under Art III =CNOF (Gibbs test).

Stat. Power: Federal Q: CNOF v.loose factual relationship.Diversity: add'l parties cannotdefeat complete diversity(Krogertest).

Discretionary Power

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Statutorygrounds for

diversity

jurisdiction.

Mottley D refused to renew passes because Congress passed statute barring R.R.s fromgiving free transportation. Mottleys brought action for breach of contract. Court:Breach of contract did not require Ps to prove any proposition of federal law,

and the statute was only in question because it was clear that D would rely on itin defense. This was insufficient for federal SMJ; it was up to the Ps to state afederal question issue in their complaint to qualify.

Diversity Jurisdiction: Federal courts have power to adjudicate claims based on completediversity of citizenship between parties.

1332:(a) The district courts shall have original jurisdiction of all civil actions where the matter incontroversy exceeds the sum of $75,000, and is between

(1) Citizens of different states;(2) Citizens of a State and citizens or subjects of a foreign state;(3) Citizens of diff. states and in which citizens/subjects of a foreign state are addlparties; and(4) A foreign state as P and citizens of a state or different states.

For the purposes of this section, an alien admitted to the U.S. for permanent residenceshall bedeemed a citizen of the state in which such alien is domiciled.(c) For purposes of this section

(1) A corporation shall be deemed to be a citizen of any state by which it has beenincorporated and of the state where it has its principal place of business (exceptionfor insurance corps.)

Complete Diversity: 28 U.S.C. 1332 requires all Ps must be of a different citizenship from all Ds.This is a statutory not a Constitutional requirement.

Amount in Controversy: In all cases in which diversity is the sole basis for SMJ, the amount incontroversy must exceed $75,000.

1. The amount of each persons claim must individually exceed statutory requirement. 2. If multiple claims, they may be aggregated order to meet minimum.3. Legal Certainty Test: A D opposing SMJ on amount in controversy grounds must prove to

a legal certainty that P could not recover damages in excess of the jurisdictional minimum.Corporate Citizenship: Determined by place of incorporation AND principal place of business;compare both against citizenship of opposing party to establish diversity.

Associations/Partnerships: Including labor unionsshare citizenship with every member.

POLICY: Prevents unfair judgments due to regional biases against an out-of-state D who fearsprejudice in local state courts or Ds in rural areas who might also face prejudices in urbansettings. In addition, interstate trade was very important and diversity jurisdiction allowedfederal courts to create a common law standard for commercial transactions. The latter issue isno longer applicable after Erie decision (in a diversity case court must apply state law) and it isunclear whether regionalism concerns are still valid.

CASE AUTHORITY FOR DIVERSITY JURISDICTION

Mas v. Perry Facts: Ps rented apartment from D in LA; invasion of privacy (state law)case. P1 was a citizen of MS, and her husband P2 was a citizen of Francewith no permanent residence in U.S. D moved to dismiss on the groundsthat there is no diversity of citizenship because all parties weredomiciled in LA. Court: Diversity jurisdiction is valid: 1332 does notapply to aliens who are not permanent residents, so diversity against P2is valid. P1 is still a citizen of MS (where her family lived) until she madethe decision to change domiciles. Therefore all Ps are different citizens

than all Ds.NOTE: court spends a good deal of time talking about $$ in controversy;under SuppJ statute, court would have authority to hear P2s claim eventhough it was less than min. jdx. amount regardless.

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constitutional case or controversy as the jdx-conferring claim.a. SPLIT: Most courts use CNOF principle. Two distinguished circuits are willing to

give 1367(a) a broader reading: Judge Fletcher inJones v. Fordsuggested only

loose factual connection is necessary. No SCotUS ruling on this.b. State Claims, No New Parties: SuppJ applies----- If claim satisfies Gibbs testc. State Claims, Addl Parties: SuppJ applies-------- it satisfies the statute.

2. Diversity Cases: There is SuppJ in many cases where the original claim is based solely ondiversity, with a few important carve outs. An attempt to codify Krogerruling.

a. Compulsory Counterclaims (13(a)): Supp J --------- Claim that bears a logicalb. Cross-claims (13(g)): Supp J------------------------------ relationship to main claimc. Impleader of 3dPD, Claims by3dPD: Supp J--------- or from same T/O = SuppJ.d. Parties Joined Under Permissive 20(a): Supp J applies for amount in

controversy purposes, butdoesnotremove requirement of complete diversity.e. Ps Claims against3dPD: NO SuppJ----------------- Captures Krogercourtsf. Permissive Counterclaims: NO SuppJ-------------- hostility towards Ps.g. POLICY: Court is worried that P will sue diverse D and wait for him to implead

non-diverse 3dPD to circumvent complete diversity requirement. Efficiency isntan issue because P can sue diverse & non-diverse Ds in state court, so it is ok that

court is hostile towards P. BUT court is more lenient towards Ds impleader claimsbecause they pose less of a threat of exploiting some gap in diversity requirement;Ds are only in federal court because P brought them there. As such, Ds aredifferently situated and have a better argument for allowing SuppJ over addlclaims that are part of the same constitutional case.

Discretionary Provision: Second part of Gibbs test.

1367(c):(c) The district courts may decline to exercise supplemental jurisdiction over a claim undersubsection (a) if

(1)the claim raises a novel or complex issue of State law,(2)the claim substantially predominates over the claim or claims over which the district

court has original jurisdiction,(3)the district court has dismissed all claims over which it has original jurisdiction, or(4)in exceptional circumstances, there are other compelling reasons for declining

jurisdiction.

1. Judges have a great deal of liberty in deciding whether to allow SuppJ.2. Where at least one of the 1367(c) factors is applicable, federal court should not declineto exercise Supp J UNLESS it also determines that not doing so would not promote thevalues articulated in Gibbs: economy, convenience, fairness, & comity.

3. May be an invitation to court to think about SuppJ & discretion as a case management tool.4. POLICY:1. Novel state law: Federal courts would rather defer to the state as an independent foreign,

to their power & expertise in construing their own laws.2. Frivolous federal claim: If grounds for federal action is really not that important, why

waste judicial resources?3. Dismissed federal claim: Why continue to invest federal effort in a case that no longer

has federal issues? BUT federal court may nevertheless maintain jdx if it chooses to soexercise its discretion.

4. Exceptional circumstances: Court inJones advises judges not to use this very often. Indeclining jdx on this basis, court should identify truly compelling circumstances thatmilitate against exercising jdx.

CASE AUTHORITY FOR SUPPLEMENTAL JURISDICTIONUnited Mine Workers

v. Gibbs

Facts: Gibbs hired to supervise new mine. Local union demonstratesviolently & prevents Gibbs from doing job. Gibbs brings suit againstnational union, on federal law claims for bad boycott & state lawclaims for conspiracy to interfere with contact. Court: If federal court

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has a basis for SMJ over one of Ps claims, it may hear other claims thatarise out of the same nucleus of operative fact in order to guaranteeefficiency & fairness. Framers must have understood that cases

involve multiple claims, and therefore intended for federal court tohear entire dispute, as long as there was a federal hook from which toappend the other, jdxly insufficient claims.

Owen Equipment v.

Kroger

Facts: Iowa P sues Nebraska corp., who brings a 3d party complaintagainst a Nebraska/Iowa corp, destroying diversity. Original Dmotions for SJ and drops out of case, so P asserts right to bring a claimagainst 3dPD. She absolutely has this right under FRCP. Issue: Does Phave a right to bring a suit against a non-diverse 3dPD under SuppJ?Court: Court is worried about Ps using this as a tool to circumventdiversity. On the one hand, P isnt responsible for bringing in 3dPDDis. The argument about Ps gaming the system seems artificial and isnot actually at issue in the present case. Why is it not enough forcourts to deal with in discretionary terms? Nevertheless, court saysthere is never SuppJ between original P and non-diverse 3dPD,whether the diverse D is still in the suit or not.

Jones v. Ford Facts: Class action suit against Ford over discriminatory loanpractices. Ford counterclaims for set-off for unpaid loans. Issue: Isthis a compulsory or permissive counterclaim? What would be theeffect if compulsory? If permissive, is it still within SuppJ? Withincourts discretion? Court: Not a logical relationship between originalsuit & set off, only that if Ps had not entered into contract they wouldnot have been discriminated against, and also wouldnt have defaultedon loans. Court holds there is not a large evidentiary overlap, butcounterclaims & underlying federal claim bear a sufficient factualrelationship to constitute the same constitutional case. This meansconstitutional case may in fact be broader than the Gibbs CNOFstandard.

VENUEBasics of

Venue

28 U.S.C. 1391:Statutory basis

for venue

Defined: Venue refers to the place within a sovereign jurisdiction in which a given action is to be

brought.NOTE: It becomes a consideration only when jurisdiction over the parties has already beenestablished; venue does not confer SMJ or PJ.NOTE: Pursuant to Rule 12, improper venue is one of the jurisdictional objections that are waived ifnot properly asserted.POLICY: Venue privilege is purely a matter of convenience for D and involves no element offorums power to adjudicate; therefore its absence is less severe than the absence of PJ.State Venue: Determined by statute. Most common provision is based on county in which Dresides, but venue is also determined sometimes by where the cause of action arose, where D hasa place of business, or where P does business. An out-of-stater can be sued in any county. Statevenue practices run parallel to federal practices, and state courts have similar systems forevaluating transfer, FNC, etc.Summary of Federal Venue:

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Federal Venue: Which federal district court shall try the action?Local v. Transitory Actions: Localactions are typically connected to the ownership of realproperty, and must be brought in the jurisdiction where the property is located; transitoryactionsare anything that arent local.

1391(a): Venue in Diversity Cases 1391(b): Venue in Fed. Question Cases

(a) A civil action wherein jurisdiction isfounded only on diversity of citizenship maybe brought only in

(1) A judicial district where any Dresides, if all Ds reside in same state.(2) A judicial district in which asubstantial part of the events giving

rise to the claim occurred, or asubstantial part of the property thatis the subject of the action is situated,or(3) A judicial district in which any Dis subject to PJ at the time the actionis commenced, if there is no districtin which the action may otherwise bebrought.

(b) A civil action wherein jurisdiction is notfounded solely on diversity of citizenship maybe brought only in

(1) A judicial district where any Dresides, if all Ds reside in same state.(2) A judicial district in which asubstantial part of the events giving

rise to the claim occurred, or asubstantial part of the property that isthe subject of the action is situated, or(3) A judicial district in which any Dmay be found, if there is no district inwhich the action may otherwise bebrought.

NOTE: Different language, but probably means the same thing.

1391(c): A D that is a corporation shall be deemed to reside in any judicial district inwhich it is subject to PJ at the time the action is commenced. In a state which has more thanone judicial districtand in which a D that is a corporation is subject to PJ, such corporationshall be deemed to reside in any district in that state within which its contacts would be

sufficient to subject it to PJ if that district were a separate State , and, if there is no suchdistrict, the corporation shall be deemed to reside in the district within which it has the mostsignificant contacts.

1391(d): An alien may be sued in any district.

Venue

Underling Policies: Judicial Efficiency Limit Forum Shopping Convenience of Parties

Venue Rules

28 U.S.C. 1391

Diversity Cases

1391(a)

(1) Any district where anyD resides, if all Ds residein the same state.

(2) Any district where asubstantial part of theevents occured or wheredisputed property islocated.

(3) Where any D issubject to PJ only if novenue is available under(1) or (2).

Venue of Corporate Ds 1391(c)

(1) Anywhere corporationis subject to PJ. Analyzeas if districts wereseperate sovereign states.

Federal Question Cases 1391(b)

(1) Same as in diversitycases

(2) Same as in diversitycases

(3) Where any D can befound if no other venue isavailable under (1) or (2).Different language, butprobably means the samething.

Venue for Aliens 1391(d)

(1) Any alien, includingalien corporations, can besued in any district.

Transfer of Venue

28 U.S.C. 1404

1404 Balancing Test

Convenience of parties &witnesses + interests of

justice must substantiallyoutweigh P's interest inchoice of forum.

Transferring court canonly send a case to acourt where the actioncould have beencommenced or initiated.Therefore, the receivingcourt must have all three,even if the transferringcourt doesn't.

(1) SMJ (2) PJ (3) Venue

Restrictions

(1) Federal courtsNEVER transfer to statecourts. Use FNC in suchcases.

(2) State courts NEVERtransfer to federal courtsor to different states. UseFNC in such cases.

Local v. TransitoryActions

Local: Claims tied to aspecific piece of land;must be brought in thecourt where land islocated.

Transitory: All otheractions; may be broughtwherever PJ over D canbe obtained.

Forum Non Conveniens

Balancing Test

Private Interest Factors:

(1) Access to evidence

(2) Convenience of/Ability tocompel attendance ofwitnesses

(3) Difference in substantivelaw is NOT decisive indismissing on grounds of FNC,unless law in the alt. forum iscompletely inadequate.

(4) Forum selection clause

Public Interest Factors:

(1) Local interest in havingdisputes resolved locally.

(2) Court congestion

(3) Familiarity with law

(4) Interests of justice

General Rule

FNC is tough on Ps.Courts won't grant FNCunless

(1) There is an alt. forum

(2) D waives statute oflimitations defense

(3) D consents tojurisdiction in alt. forum.

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Preferred Places of Venue: Place of Ds residence if all Ds reside in state, OR where a substantialportion of the events in the suit arose.

Fallback:If cant meet any of the two preferred venues, where any of Ds are subject to PJ.Transfer

28 U.S.C. 1404:

Statutory basisfor transfer of

venue

Defined: All venue systems have a method to transfer, whereby a party can move the case to amore convenient forum where the case could have originally been brought. (i.e. to escape bias in ahigh profile case).

1404:(a) For the convenience of parties and witnesses, in the interest of justice, a districtcourt may transfer any civil action to any other district or division where it might have beenbrought.

Removal

28 U.S.C. 1441:

Statutory basisfor removal

Defined: A civil action brought in state court may be removed by D into a federal court that wouldhave had original jurisdiction. However, in diversity cases a case may not be removed to federalcourt if any of Ds is a citizen of the state in which the complaint is brought. Removal is notmandatory.

1441:(a) Any civil action brought in a State court of which the district courts of the U.S. have originaljurisdiction may be removed by D to the district court for the district embracing the place

where such action is pending.(b) Any civil action of which the district courts have original jurisdiction founded on a claim orright arising under the Constitution, treaties, or laws of the U.S. shall be removable withoutregard to the citizenship or residence of the parties. Any other such action shall be removableonly if none of the parties in interest properly joined and served as Ds is a citizen of the state inwhich such action is brought.

Forum NonConveniens

(FNC)

Defined: A legal doctrine whereby courts may refuse to take jurisdiction over matters wherethere is a more appropriate forum available to the parties. Applies between courts in differentcountries (most common), and between courts in different jurisdictions in the same country.When FNC is Proper: Only comes into play when venue is proper in the first place; FNC cannever apply if there is absence of jurisdiction or venue.

Alternative Forum Required: Dismissal on the grounds of FNC requires that there be analternative forum in which the suit can be prosecuted. It must appear that jurisdiction over allparties can be secured, and that adequate relief can be obtained in the more convenient forum.

1. It is common for a court to condition an FNC dismissal on an agreement by D to waive any

applicable statute of limitations, an in personam jurisdiction objection, or any otherdefenses in the alternative forum.

2. Cannot defeat FNC simply because the law would be less favorable to P.3. There are no clear answers to the question whether the remedy provided in the alt. forum

is adequate, but there is a discernible difference to courts between a claim that is utterlynon-viable in the alt. forum, and a claim that is merely unsatisfactory in the remedy itmight provide.

4. A corporation sued in the jurisdiction of its place of incorporation or primary place ofbusiness is generally not entitled to seek an FNC dismissal.

Balancing Test: In deciding whether to grant an FNC dismissal, courts must balance convenience,public interests, and private interests at stake against Ps choice of forum. If Ps choice of forumwas reasonable, D must show a compelling reason to change jurisdiction (i.e. not that it wouldsimply shift inconvenience from one party to another).

Factors: (1) the place where the operative facts occurred, (2) convenience of the parties,(3) convenience of the witnesses, (4) relative ease of access to the source of proof, (5)

availability of process to compel unwilling witnesses, (6) Ps choice, (7) forums familiaritywith governing law (8) forum selection clause in a contract (may be a significant factor),and (9) interests of justice.

CASE AUTHORITY FOR FORUM NON CONVENIENS

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Piper Aircraft, Co.

v. Reyno

Facts: Ds are PA & OH manufacturer of aircraft & propeller of a plane thatcrashed in Scotland, killing 5 UK citizens on board. Complaint wasoriginally filed in CA because of sympathetic US courts that allow strict

liability and generous wrongful death actions. Ds removed to federalcourt in CA, then transferred to PA district court before moving to dismisson FNC grounds in favor of having the case tried in UK courts. App. Ct.overturned FNC because Scottish law is less favorable to Ps. Court:Scotland was available forum because Ds had agreed to submit tojurisdiction and waive statute of limitations defense. SCotUS maintainedconvenience and flexibility were at the heart of FNC, and if inconveniencepoints towards dismissal courts should generally allow it. Applyingfactors, the majority of the evidence is in Scotland, US has no power tocompel non-citizen witnesses, UK has better understanding of Scottishlaw. No convenience argument for keeping it in US.

STEPS OF A FEDERAL LAWSUITStages

PLEADINGNotice

Pleading

FRCP Rule8:Pleading

Defined: Pleading is the law governing the statement of claims and defenses; often referred toas the door to pre-trial because pleading functions to eliminate complaints that have no legalsignificance, without the need for a lengthy & costly trial. Filing of the complaint is deemed to

commence the action, and is the date that counts for statute of limitation purposes.Background: Writ system Code Pleading Notice pleadingIqbal (?). In 1938 SCotUSpromulgated a uniform set of procedural rules for all fed. cases; a key feature of that reform wasthe adoption of new pleading requirements. In doing so court decided it wasnt interested indeciding factual issues during pleading stage (saved for discovery) and did away with pleadingtechnicalities by lowering the requirement to merely stating a cause for relief. Purpose of newpleading requirements was to give D (and the court) fair notice of pending actions so that hemight be able to prepare to meet it.Effectiveness: Lowering pleading standard made it less likely that pleadings themselves wouldbe an efficient screening device for easy disposal of sham claims or defenses; the hope is thatbroad rules of pre-trial discovery & summary judgment fill any gap left by less stringent pleadingstandards.Notice Pleading:

Rule 8(a) Pleading must have: (1) a short and plain statement of the grounds for the courtsjurisdiction; (2) a short and plain statement of the claim showing that the pleader is entitled to

relief; and (3) a demand for the relief sought.Jurisdiction: Since fed. courts have limited SMJ, pleading requirement helps to ensure thatfederal courts do not adjudicate cases outside of the scope of their federal powers.Short & Plain Statement: Pleader must set forth sufficient information to allege a right to reliefand must not plead any facts that would fully constitute a defense to the complaint.

Alternative/Inconsistent Allegations: FRCP Rule 8(e)(2) permits claims and defenses that are

Pleading DiscoveryApplicableLaw: ErieDoctrine

Judgment Preclusion Joinder

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stated hypoethetically or in the alternative, or are otherwise inconsistent with one another, solong as they are filed in good faith.Changing the Pleading Standard:

Old Rules (Swierkiewics) Post-Iqbal/TwomblyRules

1. Party must set forth factual allegations tocover every element of claim, referring tothe circumstances and events upon whichthe claim is based.

2. Level of factual detail required is not highgaps in the facts are usually remediedthrough discovery.

3. Goal of pleading is to provide opposingparty & court with notice & a basicunderstanding of the claim being made.

4. In cases of ambiguity in the facts, courtswere expected to view claims in a lightmost favorable to P. This meant takingevery fact as facially true in the complaint,and accepting as true any facts that wouldbe consistent with what was stated in thecomplaint.

5. A party was permitted to recovery

whenever a valid claim was presented, eventhough an attorney failed to perceive theproper basis of the claim at the pleadingstage.

6. The Appendix of Forms following theFederal Rules gives examples of sufficientcomplaints & answers (i.e. Form 11).

7. A pleading would satisfy Rule 8(a)(2) if it(1) provided fair notice (2) unless it wasclear thatno relief could be grantedunder any set of facts that could be provedconsistent with the allegations (Conley v.Gibson).

1. Court interpreted Rule 8(a)(2)s pleadingstandard to require that a complaint allegeenough facts to raise a right to relief above thespeculative level. P must now state a claim thatis plausible on its face.

2. Three prong approach to assessing sufficiency:(1) Only factual allegations must be accepted astrue; legal conclusions must be disregarded.(2) Assume the veracity of the remaining well-pleaded factual allegations (if any). (3) Decideafterwards if remaining facts give rise to aplausible inference that a violation of law hasoccurred, and that P is entitled to relief.

3. What is considered conclusory? There are broad& narrow readings. One reading is pleader

cannot just restate the language of the statute,butIqbalseems to go further than that.

4. In determining plausibility, court may considerother explanations for the conduct.

5. Requires the court to draw on its judicialexperience & common sense in determiningwhether something is plausible in context.

NOTE: Twombly standard does not just apply tosecurities & anti-trust, but should be applied to all

pleadings; however, it also does not directly overruleSwierkiewicz.

1. Allows meritorious claims in whichplausible facts are unavailable withoutdiscovery.

2. Reduces subjectivity at pleading stage.3. Reduces litigation costs at pleading stage.4. If courts set too high a threshold for

pleading, plaintiffs who would be able toprove their case through discovery are notgranted the opportunity.

1. Identifies more meritless claims at the outset,assuming Ps inability to plead facts is

representative of the claims lack of merit.2. Reduces judicial costs by deterring meritless

claims from bring brought and dismissing casesearly on, assuming post-complaint costmanagement strategies like summary judgmentare ineffective.

3. Provides a clearer template for further conductof litigation.

4. Seems to represent a slight regression to codepleading standards. Iqbalrule revives problemof determining what constitutes a conclusorystatement.

Adoption ofIqbalStandard:State Courts: States who had adopted Rule 8 into their constitutions were asked to shift to Iqbalpleading req. Most refused and still propogate Swierkiewiczstandard (P need not plead a primafacie case, merely allege sufficient facts to establish a right to relief).Lower Federal Courts: Because the rule is new and unfamiliar, it is unclear to what extent thisstandard will be implemented. Courts so used to Rule 8 req. that many will probably readstandard for assessing facts & conclusory statements more liberally than Iqbaldemands.

EXAM:Argue both sides!CASE AUTHORITY FOR PLEADING

Access Now, Inc. v.

Southwest

Facts: P is an NGO advocacy group, on behalf of a blind man who claimsDs website violates Title III of ADA because it is inaccessible to visually-

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know. D pleads defenses(special matters that would limit or preclude Ps recovery).3. In some cases, the wording of a statute designates who must bear what burden.

Burden of Production:Each partys responsibility to produce evidence at trial that tends to

demonstrate their theory of relief.Burden of Persuasion:The threshold for each partys responsibility to persuade the trier of fact(judge/jury) that his version of the facts is more likely than not true. What standard that fact-finder uses to view evidence is usually given by a judge; in civil cases the standard is generally apreponderance of the evidence.Considerations in Allocating the Burden of Pleading (Cleary): For the majority of cases, threegeneral considerations should govern allocation of responsibility for pleading.

1. Policy: Based on other features of the case and the important of the rights at stake foreither party, a judge might find that one side deserves some help, and may load thedice.

2. Fairness: Burden should be placed on a person with access to relevant evidence. Thisencourages people to voluntarily present evidence, which is less expensive thandiscovery. (BUT there are multiple exceptions to this, i.e. tort cases).

3. Probability: Burden allocation is decided based on the probabilities of the situation.This calls for putting the burden on the party who is less likely to be right, or who will

be benefitted by a departure from the norm. Different standards may lead to differentresults on a case-by-case basis. By putting the burden on the party less likely to beright, if he doesnt end up meeting his burden the outcome is likely to be accurateanyway. This is calculated to produce the fewest unjust results.

CASE AUTHORITY FOR BURDEN OF PLEADING

Gomez v. Toledo Facts:P worked in PR police under Ds supervision. Gomez testified thattwo fellow officers had falsified evidence, and as a result criminal chargeswere filed against him and he was fired. P brought a claim against D, whomoved to dismiss on the grounds of governmental immunity, and that sheacted in good faith. Issue: Whether P was required to plead as part of hisclaim that D acted in bad faith, or whether D had burden of asserting goodfaith as a defense. Court: Held that D had burden of pleading affirmativedefense, because existence of facts that might prove that D had belief heractions were done in good faith often are only known by D and it wouldbe unreasonable to ask P to infer such facts (fairness).

Motions

Rule 7:Motions in

General

Rule 12:Motions for

judgment onthe pleadings

Defined: Any request for a court order must be made by motion. Motions are like mini-complaints made during trial, done on a specified schedule.

Rule 7:The motion must (1) be in writing unless made during hearing or trial, (2) state withparticularity the grounds for seeking the order, and (3) state the relief sought.

Pre-Trial Motions for Judgment on the Pleadings: Provide a method for clarifying uncertain orambiguous pleadings, dismissing a complaint that is facially insufficient, or asserting various pre-trial defenses.Motion-Based Defenses: When served a complaint, D must either file an answer OR file amotion-based defense pursuant to Rule 12(b). These defenses may also be asserted in an answeror in an amendment to an answer.

Rule 12(b):Every defense to a claim for relief in any pleading must be asserted in answer. Buta party may assert the following defenses by motion:

(1) Lack of SMJ(2) Lack of PJ(3) Improper venue

(4) Insufficient process(5) Insufficient service of process(6) Failure to state a claim upon which relief can be granted(7) Failure to join a party under Rule 19

Motion for Judgment on the Pleadings:

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Rule 12(c): After the pleadings are closedbut early enough not to dely triala party may movefor judgment on the pleadings.

Motion for a More Definite Statement:

Rule 12(e): A party may move for a more definite statement of a pleading to which aresponsive pleading is allowed but which is so vague or ambiguous that the party cannotreasonably prepare a response. Motion must be made before filing a responsive pleadingand must point out the defects complained of and the details desired.

Joining Motions: D may join multiple Rule 12 motions, but once a party makes one Rule 12motion, certain defenses or objections (12(b)(2)-(5)/(e)) not raised in that motion are consideredwaived.

Rule 12(g):(1) Right to Join: A motion under this rule may be joined with any other motion allowed bythis rule(2) Limitation on Further Motions: Except as provided in Rule 12(h)(2)/(3), a party thatmakes a motion under this rule must not make another motion under this rule raising adefense or objection that was available to the party but omitted from its earlier motion.

Waiving & Preserving Defenses:POLICY: It would be foolish for a court to try a case on the merits only to have it dismissed for

procedural issues like lack of venue. This prevents Ds from holding out on filing motions until thecase turns against them on the merits, thus wasting the courts time and money. The waive-abledefenses should be obvious to D from outset, and are therefore easy to assert in the beginning oflitigation.

Rule 12(h):(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 12(g)(2); or(B) Failing to either:

(i) Make it by motion under this rule; or(ii) Include it in an answer or an amendment allowed as a matter of course.

(2) When to Raise Others: Failure to state a claim upon which relief can be granted, to join aperson required by Rule 19(b), or to state a legal defense to a claim may be raised:

(A) In any pleading allowed under Rule 7(a)(B) By a motion under Rule 12(c); or(C) At trial

(3) Lack of SMJ: If the court determines at any time that it lacks SMJ, the court mustdismiss the action.

Amendments

Rule 15:Amendments

to thepleadings

Defined: Changes to pleadings, answers, counterclaims, etc. Amendments may add new facts orlegal theories, and also may change the party who P is suing.

1. Determinative factor in allowing amendments is whether it would be prejudicial to theopposing party.

2. Early in litigation there is a presumption in favor of allowing amendments. The later inthe trial, the more likely the court will find the proposed amendment prejudicial.

3. Amendments may be denied that assert legally insufficient claims, or where the judgehas reason to believe the party seeking to amend pleading has acted in bad faith (i.e. tothrow Ds defense).

4. Amended pleadings displace prior pleadings.Liberal Pre-Trial Amendment Policy: Judicial system believes cases should be tried on themerits, not on technicalities of the pleadings. Without liberal amendment rules, a party wouldonly be able to recover what he pleaded in the original complaint. FRCP reject such technical

impediments to reaching the true facts/merits of the case. If, over the development of a trial, aparty finds a new legal theory or becomes aware of more facts that might support recovery,they should be able to restate their position in light of this fuller understanding.

Pre-Trial Amendments:Matter of Course:A party is allowed to amend a pleading once as a matter of course, withoutpermission from the court, within 21 days of serving it.

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When Justice So Requires: Once the period specified in Rule 15(a)(1) has passed, amendmentscan be made by written consent of opposing party or by leave of court, which should be freelygiven when justice so requires.

Rule 15(a):Amendments Before Trial

(1) Amending as a Matter of Course: A party may amend its pleading once as a matterof course within:

(A) 21 daysafter serving it, or(B) If the pleading is one to which a responsive pleading is required, 21 daysafter service of a responsive pleading, or 21 days after service of a motionunder Rule 12(b), (e), of (f), whichever is earlier.

(2) Other Amendments: In all other cases, a party may amend its pleading only with theopposing partys written consent or the courts leave. The court should freely give leavewhen justice so requires.

Amendments During & After Trial: Pleadings may be amended during and after trial whenevidence presented is not within the issues in the pleading if (1) court finds that amendmentwould not prejudice objecting party or (2) issue is tried by parties express or implied consent.Consent is generally found when evidence is introduced without objection, or when the party

opposing the amendment actually produced evidence bearing on the issue.Rule 15(b):(1) Based On An Objection At Trial: If, at trial, a party objects that evidence is not within theissues raised in the pleadings, the court may permit the pleadings to be amended. Courtshould freely permit an amendment when doing so will aid in presenting the merits and theobjecting party fails to satisfy the court that the evidence would prejudicethat partysaction or defense on the merits. Court may grant a continuance to enable objecting party tomeet the evidence.(2) For Issues Tried by Consent: When an issue not raised by the pleadings is tried by theparties express or implied consent, it must be treated in all respects as if raised in thepleadings. A party may move at any time, even after judgment, to amend the pleadings toconform them to the evidencebut failure to amend does not affect the result of the trial.

Relation Back:New Cause of Action:An amendment to a pleading that states a new cause of action relatesback to the original filing day (for the purpose of remaining within an applicable statute of

limitations) when the new claim/defense asserted in the amended pleading arose out of the samegeneral set of facts.POLICY: Initial pleading provided party notice, therefore other claims that would have beentimely are also considered valid because party is already preparing evidence and a defense.New Parties: If the amendment is seeking to change/add a party, it will only relate back if (1) theclaim against the new party arises from the same facts as the original claim, (2) if the new partyhad notice within the period for delivery of the original complaint (date of filing + 120 days)that it had been filed, AND (3) should have known that but for Ps mistake the action would havebeen originally filed against him.

1. Identity of Interest: New party may have received informal notice because they areconnected in some way to the party named on the complaint, for instance through thesame lawyer or through a business relationship.

2. Lack of knowledge about Ds identity a mistake, and does not entitle P to relationback.

Rule 15(c):(1) An amendment to a pleading relates back to the date of the original pleading when:

(A) State of limitations allows relation back(B) Amendment asserts a claim or defense thatarose out of the conduct, transaction,or occurrence set outin the original pleading, or(C) The amendment changes the party or partys name against whom a claim isasserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m)

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for serving the summons & complaint, the party to be brought in by amendment:(i) Received such notice of the action that it will not be prejudiced indefending on the merits; and

(ii) Knew or should have known that the action would have been brought himbut for a mistakeconcerning the proper partys identity.

CASE AUTHORITY FOR AMENDMENTS TO PLEADINGS

Worthington v.

WilsonFacts: A man is arrested and abused by arresting officers. Man files suitagainst John Does because he does not know the names of the arrestingofficers. After he finds out he moves to amend the pleading to includetheir names. Court:Does not allow amendment, holding that Ds lack ofknowledge is not a mistake and is therefore not entitled to relation backunder Rule 15.

Devices toAssure

Candor inPleadings

Rule 11:Sanctions

28 U.S.C. 1927:

AttorneySanctions

Sanctions:Regulate the practice of pleading by implicating ethics rules as standard for courtspower to sanction.Rule 11:Background: Started as a bad faith rule in 1938; rarely used. Amended several times, and therewas ligitimate concern that attornies would be unable to engage in zealous advocacy or takeinnovative positions on behalf of their client out of fear of sanctions. Most recently (1993),legislature approved safe harbor provision.

1. Requires signatures on every document filed with court.2. Only an attorney or an unrepresented party may violate this rule, but firms & co-

counsel may be held liable for their part of the sanctioned partys actions. 3. Sanctions are not required, but are brought at the courts discretion. 4. Requires that a person who has signed a pleading to cease advocating a position that

the person has learned is untenable on the facts of the law.5. To avoid sanctions, pleadings need evidentiary support; something that will meet

partys burden of production in front of a jury.Rule 11:(a) Signature: Every paper presented to the court must be signed.(b) Representations to the Court: By presenting to the court a pleading, motion, or other paper,party certifies that to the best of the persons knowledge, information, and belief, formed afteran inquiry reasonable under the circumstances:

(1) It is not being presented for any improper purpose;(2) Claims, defenses, & other legal contentions are warranted by existing law or by anonfrivolous argumentfor extending, modifying, or reversing existing law or forestablishing new law;(3) Factual contentions have evidentiary supportor, if specifically so identified, willlikely have evidentiary support after a reasonable opportunity for further investigationor discovery; and(4) Denials of factual contentions are also warranted on the evidence or, if specificallyso identified, are reasonably based on belief or a lack of information.

(c) Sanctions(1) In General: If the court determines that Rule 11(b) has been violated, court mayimpose an appropriate sanction.(2) Motion for Sanctions: A motion for sanctions must be made separately from anyother motion and must describe the specific conduct that allegedly violates Rule11(b)but itmust not be filed or be presented to the courtif the challeneged paper,

claim, defense, contention, or denial is withdrawn or appropriately corrected within21 days after service.(3) On the Courts Initiative: On its own, the court may order a party to show cause whyits conduct has not violated Rule 11(b)(4) Nature of a Sanction: A Sanction imposed under this rule must be limited to what

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suffices to deter repetition of the conduct.(d) Inapplicability to Discovery

Improper Purpose: Some courts hold that when a pleading is neither legally nor factually

frivolous, sanctions are unavailable regardless of pleaders purpose; others view improperpurpose on a continuum weighing illicit purpose and legit purpose to vindicate a partys rights incourt.Frivolity: If attorney is advocating for an extention of existing law, he must make a non-frivolousargument. What constitutes frivolity is subjective and ultimately turns on judges determination.Because of this, many sanctions attack lawyers research or failure to identify legal arguments asnovel rather than argue the standards for determining legal frivolity.Safe Harbor Provision: 1993 amendment added a safeguard against sanctions, requiring partyseeking sanctions to allow offending party 21 days to withdraw or amend pleading beforesanction is filed with the court.Damages: Award for sanctions is limited to what suffices to deter repetition of bad conduct (notcompensate). Available sanctions include $ paid to court, and order for attorneys fees ofopponent. This lowers incentive to bring unnecessary motions for sanctions since party has littleto economically gain.

POLICY: (1) Ensure truthfulness & deter frivolous litigation, (2) remind attorneys of obligation

to legal system & interests of justice, (3) Saves judge from having to hear/litigate excessmotions.

Other Methods for Sanctioning:By Statute: Triggered by bad faith (prolonging complaint). Requires specific notice to counsel andopportunity for counsel to be heard/defend himself before sanctions are imposed.

28 U.S.C. 1927: Any attorney who unreasonably and vexatiously multiplies the proceeding inany case may be required by the court to satisfy the excess costs, expenses, and attorneys feesreasonably incurred because of such conduct.

Inherent Power of the Courts: Federal D. Cts. have judicial power to manage their ownproceedings and punish abuses of the judicial process through sanctions. No motion needs to havebeen brought, and there is no safe harbor provision for sanctions outside Rule 11. There usuallymust be some form of intent for improper purpose or bad faith on the part of the offending party,like blatantly lying to the court or promulgating a complaint known to lack a legal base.

CASE AUTHORITY FOR SANCTIONS

Zuk v. EPPI Facts: Psychologist sues former employer for copyright infringement by

renting his filmed therapy sessions. EPPI moved to dismiss and filedsanctions against Ps attorney, Lipman, on grounds that he failed toconduct an inquiry into the facts. Lipman had not properly read thecopyright law, and had filed a claim after the applicable statute oflimitations. Case was also factually insufficient because Lipman had notproperly investigated whether or not Ps films were actually rented byEPPI. Court: D. Ct. found sanctions under both 1927 & Rule 11. App. Ct.held the lower court had improperly assigned sanctions on two counts,one for intentional misconduct, and one on something less thanintentional misconduct. Because of this confusion they remanded.Lipmans sanction was based on a faulty reading of copyright law. If hehad argued towards expanding the law or creating new law, he may haveavoided sanctions.

ResponsivePleadings

(Answers)

Rule 8(b):Defenses,

admissions, &

Defined: Ds answer to the pleading serves to determine which allegations in the complaint Dintends to contest at trial, permits D to raise additional matters as affirmative defenses or

counterclaims, and allows D to raise certain technical defenses not on the merits (Rule 12). D mayrespond through a denial, an admission, or silence, stated in short & plain terms like the intialpleading.NOTE: Governed by the same rules as pleadings in FRCP 8.NOTE: Denials are tied to Rule 11. By signing a pleading, a party is making certain warranties that

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denials denials are justified by the evidence unless specifically identified.Admissions: If facts in complaint are admitted, they are considered not in dispute and no furtherevidence is required or allowed to be submitted on their behalf.

Why Would D Deliberately Admit Allegations?: Party has duty to respond in good faith. Also,for tactical reasons a party may admit allegations because they dont want bad conduct exposed. Silence: Failure to deny has same effect as an admission.Denials: Two types:

1. General: In one sentence, D states that he denies each and every allegation incomplaint. Very rare.

2. Specific: -by- analysis of complaint, denying only those allegations D intends tocontest.

3. Lacking Information: D may deny allegations on the basis that he has noinformation or beliefsufficient to answer.

Defenses:Affirmative defenses introduce new matter having nothing to do with whether Psallegations are true. Must be raised in pleading in order to be proved at trial (i.e. if D does notraise defense in an answer he waives his right to do so).Counterclaims:D may choose not only to answer Ps complaint, but to advance a claim of his ownagainst P.

DISCOVERYScope of

Discovery

Rule 26:Scope of

Discovery

Rule 37:Enforcement

regime fordiscovery

Defined: The legal process for compelling the disclosure of information relevant to disputedfactual issues in litigation. Operates without intervention of the court; only where one personrefuses to comply with the others discovery request will the court intervene.Timeline: Generally, between the close of pleadings & final pre-trial conference.1. Informal investigation2. Meeting between parties to draw up discovery plan3. Initial disclosure4. Then, free for all with depos, rogs, motions, etc.Liberalization: Scope of discovery under Rule 26 is incredibly broad compared to other legalsystems.Purposes of Discovery:1. Fact finding (allows parties to present case most favorable to them)2. Settlement promotion

3. Testing claims & defenses4. Surprise reduction5. More accurate outcomes6. Expediencymay reveal that a case can be diposed of without trial through summary

judgment for lack of evidentiary basis.Required Disclosure:(Rule 26(a))Scope of Discovery: (Rule 26(b))

Rule 26(b)(1): Scope & Limits(1) Scope in General. Unless otherwise limited by court orderparties may obtain discoveryregarding any nonprivileged matter that is relevant to any partys claim or defenseincluding the existence, description, nature, custody, condition, and location ofany documentsor tangible things and the identity and location of persons who know of anydiscoverable matter. For good cause, the court may order discovery of any matter relevant tothe subject matter involved in the action. Relevant information need not be admissible attrial if the discovery appears reasonably calculated to lead to the discovery ofadmissible evidence (subject to limitations imposed by (b)(2)(C).

In General: Information can, at least upon a proper showing of need, be obtained regarding anymatter, not privileged, that is relevant to the subject matter involved in the action, includinginformation about any documents or tangible evidence and the identity & location of people whoknow of any discoverable matter.Lead to Evidence: It is proper to discover facts not necessarily admissible themselves, so long as

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they mightleadto admissible evidence (i.e. hearsay statements ok) or expose the identity &whereabouts of witnesses who are thought to have discoverable information. Discovery requestssimply must be reasonably calculated.

Three Categories of Relevant-but-Inadmissible Info: Legal Theories: material relating to legal theories on which responding party expects to

rely at trial (Rule 33(a)(2))

Witnesses: Identity & whereabouts of any witness who is thought to have discoverableinfo

Leads: Material which can serve as a lead to admissible evidence.Privileged Matters: Information that falls under the formal privileges recognized under rules ofevidence (i.e. attorney-client, doctor-patient, priest-penitent, husband-wife, etc.) are exempt fromdisclosure. Person asserting a claim of privilege has the burden of establishing its existence.

BUT once privileged information has been voluntarily disclosed, some jdx considerprivilege waived to all communications of the same information.

May be asserted by any person who could assert privilege at trial.Limitations on Discovery: (Rule 26(b)(2)NOTE: Presumption of discoverability, with a fe