Two step ananlysis for

Personal Jurisdiction

1. Does the jurisdiction satisfy a long-arm statute, consented to jurisdiction, or been present in the state?

2. Does the jurisdiction satisfy due process?

"such minimum contacts with the forum so that exercise of juridiction does not offend traditional notions of fair play and substantial justice"

Factors for due process in

personal jurisdiction

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Minimum Contacts     Fair Play & Substantial Justice

Puporseful Availment Relatedness of contact/claim

Foreseeability           Convenience  

                              State's interest

1. Diversity of citizenship

2. Federal Question

3. Supplemental Jurisdiction

(1) amount in controversy must exceed $75,000; (2) complete diversity between each plaintiff and each defendant must exist.

Citizenship

(Diversity)

citizenship has 2 elements:  (1) presence in state at some point; (2) subjective intent to make it your permanent home

a.  test for diversity is at the time the claim is filed—doesn’t matter if a plaintiff later moves to the same state as defend.

b.  for corporations, citizenship means:  (1) state where incorporated; AND (2) state of principle place of business

1.  Well-pleaded complaint rule:  means that plaintiff’s claim, properly pleaded, must be based on federal law

allows federal court to here claim even if diversity or federal question are not established. 

2 steps:

1.  The test:  the claim we want to get into federal court must share a “common nucleus of operative fact” with the claim that invoked federal SM jurisdiction.  Test is met by claims that arise from the same transaction or occurrence (T/O)

In diversity Cases -- Apply state substatntive law

Supremacy Clause

If no fed law on point:

1) Outcome determinative

2) balance of interests

3) Avoid forum shopping

In any case, plaintiff may lay venue in any district where all defendants reside or a substantial part of the claim arose.  “Reside” has a different meaning for individuals and corporations:

1.  individual:  residence basically means domicile, so usually the same place as citizenship for diversity jurisdiction purposes

A.  timing:  must serve within 120 days of filing case or case is dismissed without prejudice (show good cause to avoid dismissal)

B.  Personal service:  papers given to defendant personally.  Can be effected wherever defendant can be found in forum state.

C.  Substituted service:  papers given to defendant’s agent.  OK if @ defendant’s usual abode and person served is of suitable age and resides there

D.  waiver of service by mail:  if within 30 days of service being mailed by first class to defendant, defendant returns waiver form, then defendant waives formal service of process (doesn’t waive anything else, like lack of personal jurisdiction).  If waiver form not returned, can serve defendant personally or by substituted service—defendant may be liable for service costs

Defendant’s Response:  must respond with a motion or answer within 20 days after service of process (or risk default)

1.  Motion:  these are not pleadings, but merely a request for a court order.

a.  motions regarding the form of the complaint:  (1) motion for a more definite statement – pleading was so vague defendant can’t frame a response; (2) motion to strike: immaterial things (e.g. demand for jury when no right exists)

b. Rule 12(b) defenses:  (1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process (problems w/documents); (5) insufficient service of process; (6) failure to state a claim; (7) failure to join indispensable party.  Note:  failure to raise items 2, 3, 4, or 5 in the first response effectively waives them

c.  motions on matters regarding the merits:  (1) failure to state a claim on which relief can be granted 12(b)(6); (2) judgment on the pleadings; (3) summary judgment (Rule 56)

2.  Answer:  this is a pleading.  Must serve within 20 days of service of process if no motions made. 

a.  Defendant must respond to allegations in the complaint:  admit, deny, or state that you lack sufficient information to admit or deny.  Note:  failure to deny can constitute an admission on any matter except damages

b.  Defendant must raise affirmative defenses.  “Even if I did all the terrible things plaintiff says, he still cannot win.”  E.g. statute of limitations, statute of frauds, res judicata, self-defense.

these are offensive claims against an opposing party.  They are filed with Defendant’s answer.

1.  compulsory:  arises from the same T/O as plaintiff’s claim.  Must be filed in the pending case, or it’s waived.

2.  permissive:  doesn’t arise from the same T/O as plaintiff’s claim.  Can sue in a separate action.

Joinder of Parties

Proper defendants and plaintiffs

should be joined because they have some relationship with the action.  Their joinder will be compelled if feasible. 

Who is necessary:

1.  without the absent party, the court cannot accord complete relief (worried about multiple suits);

2.  the absent party’s interest may be harmed if he isn’t joined (practical harm, like losing a business or stocks);

3.  absent party claims an interest which subjects a party (usually defendant) to multiple obligations

4.  Note:  If the absent party fits any of these categories, court may order joinder.  Joint tortfeasor are not necessary party.

1.  file third-party complaint naming party as a TPD

2.  serve process on the TPD (must have personal jurisdiction over TPD)

3.  Note:  after TPD is joined, plaintiff can assert claim against him if the claim arises out of the same T/O as the underlying case.  TPD can likewise assert claim against plaintiff.  BE CAREFUL:  remember to assess each claim separately for subject matter jurisdiction.

A representative sues on bealf of the group

4 requirements

1) Numerosity:  Too many class members for practical Joinder

2) Commonality: There are some questions of law or fact in common to class

3) Typicality: Rep's claims/defenses typical of those of the class

4) Representative adequate: The class representative will adequately and fairly represent the class.

Class Actions

Types of cases

The class claim must fit into one of these types of cases

a.  “prejudice”:  a class action is necessary to avoid harm of either to class members or to party opposing the class.  E.g. many claimants to a common fund where individual claimants may deplete the fund.

b.  Injunction or declaratory judgment (not damages) sought because class was treated alike by other party.  E.g. employment discrimination.

Class Actions

Notice of Pendancy

Class Actions

Jurisdictional considerations

Determining citizenship for diversity purposes:  look only to the representative’s citizenship, not the class members

Determining amount in controversy:  look to the representative’s claim

Discovery

Required Disclosures

1.  Initial disclosures:  must identify persons and documents “likely to have discoverable information that the disclosing party may use to support its claims or defenses.”

2.  experts:  must identify experts “who may be used at trial” and produce written report containing opinions, data used, qualifications, compensation for study, etc.

3.  Pretrial:  no later than 30 days before trial, must give detailed information about trial evidence

1.  Depositions:  Sworn statements (oral or written) by deponent responding to questions by counsel.  Can depose parties or non-parties.  Non-parties should be subpoenaed. 

2.  Interrogatories:  questions propounded in writing to another party, to be answered in writing under oath.  Only 25 allowed.

3.  Requests to produce:  requests to another party (or non-party by subpoena) requesting that they make available for review and copying various documents or things, or permit entry upon designated property for inspection, measuring, etc.

4.  Physical or Mental examination:  only available through court order upon showing that party’s health is in actual controversy and “good cause,” which means you need it and can’t get it elsewhere

standard—you can discover anything “relevant to a claim or defense.” 

1.  “Relevant” means “reasonably calculated to lead to the discovery of admissible evidence.”

2.  Privileged matter is not discoverable:  i.e. lawyer/client, doctor/patient

1.  Different ways of not complying:

a.  party receiving request answers some and objects to others.  At worst, if the objections are not upheld, this is a partial violation, so the sanction will probably be light

b.  party receiving request fails completely to attend deposition, respond to interrogatories, or respond to request for production.  This is a total violation, so a heavy sanction is likely.

Possible sanctions:  to obtain sanctions, show the court you tried in good faith to get the info without court involvement

a.  for a partial violation, an order compelling the party to answer the unanswered questions, plus costs of bringing the motion.  (for a violation of order compelling:  contempt of court and attorney’s fees for the motion)

A.  Failure to State a Claim (12(b)(6):  Failure to state a claim—defendant can move to dismiss for the plaintiff’s failure to state a claim.  In this, the court will not consider evidence.  The court assumes all allegations are true, and asks:  “if Plaintiff proved all she has alleged, would she win in the judgment.”  A motion for this can also be made after defendant has answered, but then it’s called a motion for a judgment on the pleadings. 

B.  Summary Judgment:  in this, the court will look at the evidence.  The moving party must show (1) there is no genuine dispute as to material issue of fact, and (2) that he is entitled to judgment as a matter of law.  The court generally views the evidence in the light most favorable to the nonmoving party.  Note:  affidavits are sworn statements, under penalty of perjury, so they are treated as evidence.

must demand in writing, and a right for jury trial in federal court exists for a claim of legal issues, but not for equity (thus no right to jury trial for claim for injunction, etc.)

1.  voir dire:  each side has unlimited strikes for cause (e.g. bias, prejudice, related to party).  Each side also gets three “peremptory” strikes, but those must be used in a race and gender neutral way

exactly the same as a directed verdict, only after the jury has made a decision, and the moving party didn’t like it

1.  timeline:  jury returns a verdict, and within 10 days losing party moves to have court make judgment opposing verdict

2.  standard:  same as JMOL—reasonable people could not disagree with the result

3.  BE CAREFUL:  for a JNOV motion, you first need to make a JMOL motion at the close of all the evidence.  If you made a JMOL only after the plaintiff’s case, and not after all the evidence, then you waive the right to make a JNOV.

something happened that makes the judge think the parties should start over.  Must move within 10 days after judgment.  Grounds for granting a new trial:

1.  prejudicial error at trial makes judgment unfair (e.g. wrong jury instruction; wrong evidence ruling)

2.  new evidence that could not have been obtained with due diligence for the original trial comes to light

3.  prejudicial misconduct of party, attorney, third party, or juror (e.g. juror conducted independent investigation of accident)

4.  judgment is against the weight of the evidence (serious error of judgment by the jury)

general rule is that appeal can only come from final judgments, which means the ultimate decision by the trial court of the merits of the entire case. 

Claim Preclusion

you only get to sue on a cause of action (claim) once.  Requirements:

1.  to preclude the second claim, the two cases must be brought by the same claimant against the same defendant

2.  Case 1 must have ended in a valid final judgment on the merits

3.  both cases must involve the same “claim” (claim is any right to relief arising from a T/O or a series of related transactions

Issue preclusion

precludes relitigation of a particular issue litigated and determined before.  Requires:

1.  Case 1 ended in a valid, final judgment on the merits

2.  the same issue was actually litigated and determined in Case 1

3.  the issue was essential to the judgment

4.  can only be asserted against one who was a party to Case 1—due process issue