Term
| In Personam Jurisdiction Analytical Framework |
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Definition
○ Check to make sure the statute applies
○ Does a traditional basis apply?
§ If so, traditional basis may be enough on its own but tell him about the split
○ International shoe
§ Must be a relevant contact between D and forum
□ Purposeful availment
□ Foreseeable that could be sued there
□ If arguably a contact, specific or general jurisdiction
® Does complaint arise from the D's contact with the state
◊ If yes, specific jurisdiction
◊ If no, general jurisdiction
} D must be "essentially at home there"
§ Fairness
□ Fair to litigate in the state?
□ Burden on D to show that it is unconstitutionally unfair
® Very hard to do
□ 5 relevant factors
® Inconvenient for the defendant
® Forum state's interest
® Plaintiff's interest
® Efficiency
Shared substantive policies |
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Term
| In Rem and Quasi In Rem Jurisdiction |
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Definition
- True In Rem type: litigation/dispute about ownership of the property
- Quasi In Rem: clear that D owns property but dispute about something else
○ Would have been In Personam if it could have been
- In Rem and Quasi In Rem is appropriate when property has been seized by the court at the beginning of the suit
- Statute: Need an attachment statute
- Constitutional limits
○ D must meet International Shoe and the property must be seized at the outset |
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Term
| How to serve and individual |
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Definition
ow do we serve an individual § 4(e)
§ 4(e) (2)
□ Personal Service
□ Substituted Service
® Must be at the D's dwelling or usual abode
® And must serve someone of suitable age and discretion who resides there
□ Service on the person's agent
§ 4(e) (1)
□ Methods acceptable under state law
® Can be methods of state that court resides in
® Or can be methods of state where service will take place |
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Term
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Definition
§ 4(h)(1)
□ Officer or a managing or general agent
® Looking for someone with sufficient responsibility that we expect them to transport important papers |
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Term
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Definition
§ 4(d)
§ Can have the D waive by sending the process and 2 copies of a waiver form and self addressed stamped envelope
□ Cheap and easy to do
§ What if the D fails to return the waiver form
□ Serve process on D and D will have to pay for it |
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Term
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Definition
| ® No diversity if any plaintiff is a citizen of the same state as any defendant |
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Term
| Citizenship of Human Being |
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Definition
® Citizen of the state where domiciled
◊ Physical presence in the state
◊ Must form the intent to make it your permanent home
◊ Only one domicile at a time
◊ Always have one |
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Term
| Citizenship of Corporation |
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Definition
® Defined by 1331(C)(1)
◊ State where incorporated
◊ And the one state where it has its principal place of business
Test: Where the managers direct, control and coordinate corporate activity |
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Term
| Citizenship of Non incorporated business |
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Definition
® Look to the citizenship of all the members
◊ Non incorporated business can be citizens of multiple states |
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Term
| Requirements for Diversity Subject Matter Jurisdiction |
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Definition
§ Amount in controversy exceeds $75K ($75K exactly does not qualify
□ Complete Diversity Rule
® No diversity if any plaintiff is a citizen of the same state as any defendant |
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Term
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Definition
® Must add two or more claims to get over $75K
® When we aggregate:
◊ When there is one P and one D
} Claims can be infinite and don't have to be related
® Cannot aggregate if there are multiple parties on either side
◊ HOWEVER, WITH A JOINT CLAIM USE THE TOTAL VALUE OF THE CLAIM AND THE NUMBER OF PARTIES IS IRRELEVANT |
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Term
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Definition
- Section 1331 of judicial code
○ Citizenship irrelevant
○ Amount in controversy irrelevant
- Claim must arise under federal law
○ Look at the P's claim alone
○ Well pleaded complaint rule
§ Look only at the complaint, forget everything else
○ Is the P enforcing a federal right?
§ If yes --> Federal court
§ If no --> Not a federal question, need diversity to get in federal court |
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Term
| Supplemental Jurisdiction |
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Definition
| § Lets a federal court hear a non diversity, non federal question claim § Can't get a case into federal court, but can get a claim in § Case in federal court under federal question in claim 1, and Supreme Court allowed claim 2 into federal under supplement jurisdiction § If claim 1 and claim 2 share a common nucleus of operative fact then we allow both claims into federal court □ Pretty broad but essentially means that if claims are the same dispute □ Always satisfied when claims come from the same transaction or occurrence |
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Term
| Supplemental Jurisdiction Test |
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Definition
○ Does 1367(a) grant jurisdiction?
§ Yes if meets Gibbs
□ Does 1367 (b) take away that grant?
® Applies only in diversity cases, never in federal question cases
® Only takes away supplemental jurisdiction from claims by plaintiffs |
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Term
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Definition
- Allows a defendant to have a case filed in state court to have the case transferred to federal court
- Removal goes from state to federal
- Remand goes from federal to state court
- Mechanical rules (1441,1446,1447)
○ Removable if case meets federal subject matter jurisdiction
§ Exception: Cannot remove a diversity case if any defendant is a citizen of the forum. (In state citizen rule)
○ All defendants must agree
○ Must remove within 30 days of service of the document which first makes the case removable
§ Usually at the service of process
○ Can only remove to the federal district that embraces the state court where it was filed |
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Term
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Definition
- Venue Rules
○ Lay venue in any district where all defendants reside
§ If all defendants reside in the same state then you can lay venue where any one of them resides
§ Human resides where domiciled
§ Businesses reside:
□ In all districts where they are subject to personal jurisdiction
○ Lay venue in any district where a substantial part of the claim arose
○ 1391(a)(3) and (b)(3)
Only comes up if there is no district in the United States where no venue is proper |
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Term
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Definition
- Two transfer statutes
○ Under both the transferee must be a proper venue and have personal jurisdiction over the defendant
§ Must be independently true without waiver by the defendant
○ 1404(a)
§ 1404 applies when transferor is a proper venue
§ Can transfer based on convenience for parties and witnesses and the interest of justice
§ Looking to see if other court makes more sense
§ Public and private factors
§ Totally discretionary on behalf of the judge
○ 1406(a)
§ 1406 applies when transferor is an improper venue
§ Court can transfer or dismiss |
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Term
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Definition
- Where a court dismisses because there is another court that makes more sense
- Would dismiss because transfer is impossible
○ Better court to hear the case is in a different judicial system
- Usually comes up when better court is in a different country
- Factors looked at are the same as 1404 |
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Term
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Definition
- Where a court dismisses because there is another court that makes more sense
- Would dismiss because transfer is impossible
○ Better court to hear the case is in a different judicial system
- Usually comes up when better court is in a different country
- Factors looked at are the same as 1404 |
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Term
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Definition
- Federal courts must apply state substantive law in federal diversity cases
• Required by the 10th amendment
- How do we know if its substantive
• Usually it will be easy
○ Elements of a claim are always substantive
• Is there a federal law on point that directly conflicts with state law
○ Federal rule of civil procedure, rule of evidence, statute, etc
○ If yes, then apply the federal law as long as it is valid
§ For FRCP test under the Rules Enabling Act
□ Court not very clear here
□ No FRCP has been found invalid
○ If no, if matter of substance then court must follow state law
§ How to test for substantive
□ Outcome determinative test
® Substantive based on whether it affects the outcome of the case
□ Balance the interest test
® Balance the federal and state interest and decide which is more important
□ Twin Aims of Eerie
® Avoid forum shopping
® Avoid inequitable administration of the law
® Application: If the federal judge ignores this state law will it cause parties to flock to federal court?
First. If yes, then we will follow state law to avoid forum shopping |
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Term
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Definition
- Requirements: Rule 8(a)
○ Statement of Subject Matter Jurisdiction
○ Short and Plain Statement of the Claim
§ Historically just needed notice to the D
§ Twombley and Iqbal raised the standard for pleadings
□ Court will ignore conclusions of law
□ Plaintiff must plead facts supporting a plausible claim
® Not enough that it is a possible claim, must be plausible
□ Court will use its own experience and common sense to determine if claim is plausible
□ Certain areas where you have to plead in greater detail rule 9(b) and 9(g)
® Rule 9(b)
◊ Allegations of fraud or mistake
® Rule 9(g)
◊ Items of special damage
} Does not normally flow from an event
} Very special, extraordinary
○ Demand for Relief |
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Term
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Definition
• D has a choice of how to respond
○ In whatever way you respond you must respond within 21 days of service
○ Can respond by motion or by answer
§ Motion is not a pleading
□ Request for the court to do something |
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Term
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Definition
○ 12(e) - Motion for more definite statement
§ Not very likely
○ 12(f) - Motion to strike
§ Cut out things that don't belong in the complaint
○ 12(b)
§ 7 defenses that could all come up as motions to dismiss
§ Can be raised either by motion or by answer
§ 12 (b) (1) - Subject Matter Jurisdiction
§ 12 (b) (2) - Personal jurisdiction
§ 12 (b) (3) - Venue
§ 12 (b) (4) - Insufficient Process
□ Fairly unlikely
§ 12 (b) (5) - Insufficient Service of Process
§ 12 (b) (6) - Failure to state a claim
§ 12 (b) (7) - Failure to join an indispensable party |
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Term
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Definition
| 12(b)(2-5) must be in first response to complaint or they are waived |
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Term
| 12(b) Motions that can be made at anytime through trial |
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Definition
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Term
| 12(b) motion that can be raised anytime during the case |
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Definition
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Term
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Definition
○ Pleading
○ 2 things you must to
§ Respond to the complaint
□ Only three possible responses: Yes, No, Don't know
® Can only say you don't know if the stuff is not in your control
® Failure to deny is an admission
◊ Does not apply to damages
§ Raise affirmative defenses
□ Affirmative defenses inject a new fact and if you are right you win
□ Denial is reacting to what the plaintiff said
□ Defendant has the burden of asserting them |
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Term
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Definition
○ Pleading
○ 2 things you must to
§ Respond to the complaint
□ Only three possible responses: Yes, No, Don't know
® Can only say you don't know if the stuff is not in your control
® Failure to deny is an admission
◊ Does not apply to damages
§ Raise affirmative defenses
□ Affirmative defenses inject a new fact and if you are right you win
□ Denial is reacting to what the plaintiff said
Defendant has the burden of asserting them |
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Term
| Claim Joinder by Plaintiff |
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Definition
• Rule 18(a)
○ Plaintiff can join any claims s/he has against the Defendant
○ Do not have to assert all the claims if s/he doesn't want to
• Must make sure subject matter jurisdiction is met after all the claims are joined |
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Term
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Definition
○ Rule 13(a) and 13(b)
○ Asserted against an opposing party
○ Compulsory counter claim
§ Arises from the same transaction or occurrence as the complainants claim
§ If applies then it must be asserted or it is waived
○ Permissive counterclaim
§ Any counterclaim that’s not compulsory |
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Term
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Definition
○ Rule 13(g)
○ A claim against a co-party
§ Must arise as the same transaction or occurrence
○ Never compulsory |
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Term
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Definition
• Rule 20 (a)
○ Who may be joined
• Test for co-plaintiffs - 20(a)(1)
○ Arise from the same transaction or occurrence an raise at least one common question
• Test for co-defendants - 20(a)(2)
○ Claims against defendants arise from the same transaction or occurrence and raise at least one common question
• Must check for subject matter jurisdiction |
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Term
| Necessary and Indispensable Parties Test |
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Definition
○ First Step
§ Is the absentee party necessary?
□ Yes if we meet any of three tests
® 19 (a)(1)(a) - Without absentee party the court cannot accord complete relief among the parties
® 19 (a) (1) (b) (1) - The absentee's interest may be harmed if s/he is not joined
® 19 (a) (1) (b) (2) - Absentee's interest may subject the defendant to a risk of multiple or inconsistent obligations
§ Joint tortfeasors are never necessary as a matter of law
○ Second Step
§ Is joinder of the absentee feasible?
□ Personal jurisdiction over the absentee?
□ Will bringing in absentee affect subject matter jurisdiction?
○ Potential Third Step
§ Absentee cannot be joined (no personal jurisdiction, no subject matter jurisdiction with the absentee added)
§ Two options
□ Go on without the absentee
□ Dismiss the case
§ Decide based on four factors found in 19(b)
□ We should not dismiss the case unless the plaintiff has an alternative forum (most important factor)
□ If dismiss based on four factors then absentee is labeled indispensable and 12(b)(7) motion is in place |
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Term
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Definition
• Rule 14 in the FRCP
• Defending party joins a new party (third party defendant)
○ Why?
§ Because third party defendant may be liable to the defendant for the plaintiff's claim (Generally through indemnity or contribution)
• 2 Claims that can be asserted under Rule 14
○ 14(a) - Plaintiff can assert a claim against the third party defendant
§ Must arise from the same transaction or occurrence
○ 14(a) - Third Party Defendant can assert a claim against the plaintiff
§ Must arise from the same transaction or occurrence
• Must assess subject matter jurisdiction |
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Term
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Definition
• Rule 24
• Non party (absentee) brings him/herself into a case
○ Chooses which side comes in on
§ Court can move them if they think it was the wrong place
○ Must be timely
• Two types
○ Intervention of right - 24(a)(2)
§ Right to intervene if his/her interests may be harmed if s/he does not come in
○ Permissive intervention - 24(b)(2)
§ Absentee has to show that his/her claim or defense and the pending case have at least one common question
§ Discretionary of the court
• Must check subject matter jurisdiction |
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Term
| Class Action Prerequisites |
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Definition
§ Numerousity
□ Too many parties that it would overwhelm traditional joinder rules
§ Commonality
□ Got to have something between all the class
§ Typicality
□ Representative's claim must be typical of those of the class members
□ Representative will adequately represent the interests of the class |
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Term
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Definition
○ 26 (a) (1)
§ Must identify people with discoverable information that you may use to support claims or defenses
§ Also must identify documents and things with information that you may use to support claims or defenses
○ 26 (a) (2)
§ Required disclosure about experts that you are going to call at trial
○ 26 (a) (3) - Pretrial Required Disclosures
§ Must lay out everything you are going to raise at trial |
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Term
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Definition
• Deposition - Rule 30 and 31
○ Written or oral questions answered orally under oath
○ Can use this to get info from a party to non-party
§ Must subpoena the non-party or else they do not have to show up
• Interrogatories - Rule 33
○ Written questions answered in writing under oath
○ Only can be sent to parties
• Request to produce - Rule 34
○ Written request to gain access to stuff
○ Can be sent to non parties only if using a subpoena
• Medical Exam - Rule 35
○ Must get a court order
○ Must show good cause
○ Can be ordered of a party or someone in a party's custody or legal control
§ Fairly narrow
• Request for Admission - Rule 36
○ Can only be sent to parties
○ Force the party to admit or deny something
• Inspections of Land and Other Property Rule 34(a)(2)
• Complaint Rule 8: No officially a discovery device. D admits/denies allegations, thus operating like request for admission. |
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Term
| Standard for Discovery/What is discoverable |
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Definition
• Standard for discovery
○ We can discover anything that is relevant to a claim or defense
○ Fairly broad
• What is discoverable
○ Anything that is reasonably calculated to lead to admissible evidence
§ Broader than admissible |
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Term
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Definition
§ Material that is prepared in anticipation of litigation
§ Cannot discover work product
§ Not always absolute
□ Can be overrode by:
® Substantial need and
® Not otherwise available
§ Absolute Work Product
□ Mental impressions
□ Conclusions
□ Legal theories
§ Does not have to be generated by an attorney |
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Term
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Definition
• Motion to dismiss for failure to state a claim
• Just look at the face of the complaint
○ Doesn’t look at evidence
○ If all the facts alleged were true would the complainer win?
§ Plausibility is in the eye of the judge
• Can point out sloppy pleading
○ When the complainant doesn’t plead every element needed to prove a complaint then we would grant 12(b)(6) - probably with leave to amend |
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Term
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Definition
• Rule 56
• Moving party must show that there is no genuine dispute on a material fact and that s/he is entitled to judgment
• Trying to weed out cases where we don't need a trial because there is no dispute of fact
• Tend not to grant this very readily
○ Supreme Court aimed in Celotex to have courts loosen up in allowing more summary judgments
○ Rarely granted for the party bearing the burden at the trial |
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Term
| Test to See if Right to Jury Trial |
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Definition
• Whether we have a jury test today depends on whether you would have had a jury at English common law in 1791
○ 2 things we look at
§ Is this claim analogous to a claim that existed in 1791 in England?
□ Almost always going to be yes
§ What remedy is sought by the plaintiff?
□ Remedy at law is damages, so if damages are sought then jury
□ Equitable remedies are injunctions, specific performance and rescission. If these are sought then no right to a jury
□ When the case includes both equity and law, then right to jury based on these rules:
® Jury right will be determined issue by issue
® If an issue of fact underlies both law and equity then you get a jury
® Generally we will try the jury issues first |
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Term
| Judgment as a Matter of Law |
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Definition
○ Case taken away from the jury when something has been previously decided as a matter of law
○ Standard: a reasonable jury could only find in one way
○ When can make this motion
§ Only after the opposing side has been heard at trial |
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Term
| Renewed Judgment as a Matter of Law |
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Definition
○ JML after the jury has ruled
○ Standard: reasonable jury could not have reached the verdict
○ Must move for this within 28 days after entry of judgment
○ There must be a motion, court cannot do it on its own
○ Must have moved for JML at a proper time at trial or waive the use of RJML |
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Term
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Definition
○ Timing as RJML
○ If granted we start over with a new trial
○ Can be based on any error that the court thinks changed the outcome
○ Court can enter this on its own but generally there is a motion
○ Less drastic than RJML |
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Term
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Definition
• Cannot appeal until the trial court enters a final judgment
• The entire case has to be wrapped up before appeal is appropriate
• How to tell if judgment is final
○ Ask: After making this order does the trial judge have anything left to do on merits of the case?
§ If yes, then the order is interlocutory and the appeal is not appropriate
§ If no, then appeal appropriate |
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Term
| Claim Preclusion Requirements |
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Definition
○ Both cases were brought by the same claimant against the same defendant
○ Case 1 ended in a valid final judgment on the merits
§ Rule of thumb: all judgments are on the merits unless they are based on jurisdiction, venue or indispensable parties
○ Both cases involve the same claim
§ Split authority on what qualifies as a claim
□ Claim = transaction or occurrence (Majority)
□ Primary rights theory = different claim for every right invaded (Minority) |
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Term
| Requirements for Issue Preclusion (Collateral Estoppel) |
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Definition
○ Case 1 ended on a valid final judgment on the merits
○ Same issue was actually litigated and decided in Case 1
○ Issue was essential to the judgment in case 1
○ Against whom is preclusion used?
§ Can only against someone who was a party to case 1
□ Includes people in privity with parties in case 1
○ By whom is preclusion used?
§ Starting part is mutuality
□ Traditional rule is that you can only use this if you were a party to case 1 |
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Term
| Non-mutual Collateral Estoppel |
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Definition
| ® Majority rule that this is acceptable as long as the party that it is being levied against had the opportunity to sufficiently litigate the issue previously |
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Term
| Non-mutual defensive Issue Preclusion |
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Definition
Person using was not a party in case 1 is the defendant in case 2
Generally allowed because it is used against had the chance to litigate |
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Term
| Non-mutual offensive issue preclusion |
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Definition
- Party using it is the plaintiff in case 2 but wasn't a party in case 1
- Most courts don't allow
- Strong trend towards allowance after Park Lane Hosiery as long as not unfair to person being used against
– Fairness factors
w Party it is being used against had a full chance to litigate the issue
w Party could foresee multiple litigation
w Person using it could not have joined easily in case 1
w No inconsistent judgments on the record |
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