Talbot - DRAFTING COMPLAINT

Wednesday, April 30, 2008

11:31 PM

1.
2.
3.
4.
5.
6.
7.

United States District Court ____________

----------------------------------------------------------------------------------------------Plaintiff Name (Plaintiff) v. Defendant Name (Defendant)
Docket Number
Complaint
-----------------------------------------------------------------------------------------Parties and Jurisdiction
The plaintiff, _______, is a ___________, residing __________
The defendant, ________, is a __________, residing/incorporated in _____________
(with its principal place of business _______________
At all relevant times, the defendant __________
If not sure about something plead "on information and belief"
Explain diversity or FQ SMJ
SMJ or FQ is proper in this court under ________
Venue is proper under _______
Therefore the jurisdiction of this court over this claim is proper

Facts
8. Blah
9. Blah
10. Blah
First Claim for Relief
Negligence
11. Plaintiff repeats and realleges paragraphs 1-X
Demand for Relief
WHEREFORE, the plaintiff demands judgment in the amount of his/her actual damages
plus interest and costs, and such other relief as the court finds just and equitable
Signature
Attorney information

Talbot - SERVICE
Wednesday, April 30, 2008
11:32 PM

INTRO

In legal actions, a fundamental right of defendants is to be notified when they are a

party to a lawsuit. To not notify defendants of pending legal action would violate their
right to due process. Service can also be made on witnesses and other key individuals
that are needed for trial. Specifically, service both notifies the defendant that he has
been sued and informs him that the court intends to proceed to adjudicate his rights.
1. WHAT IS INCLUDED IN PROCESS
1.
Summons - formal notice from the court, tells defendant she has been sued,
how long defendant has to respond, and if she doesn't respond she risks being
put in default 4(a)

The summons is signed by the clerk and bears the seal of the court 4(a)
2.
copy of complaint 4(c)(1)
2. SERVICE CAN BE PERFECTED BY ANY NON-PARTY WHO IS AT LEAST 18 YEARS OLD 4(c)(2)
3. PROCESS MUST BE SERVED WITHIN 120 DAYS OF THE FILING OF THE SUIT - 4(m)

Will then be dismissed without prejudice unless good cause can be shown for
the delay
4. HOW TO SERVE INDIVIDUALS

RULE 4(e)(2)

Personal service

Substituted Service: ok if it is at defendants dwelling house or usual

abode and the person served must be of suitable age and discretion who
resides therein

Dwelling House or Usual Place of Abode

National Dev. Co. v. Triad Holding Corp. (1991)
Apartment where service was made was one of 12 places
around the world def stayed at.
Service at that apartment was the best and most
reasonable way to serve process on def
3. Serve the defendant's agent

RULE 4(e)(1)
4.
Under the provisions governing service of process on individuals in the
courts of the state where the federal court sits

LA 3204 allows notice by certified mail with receipt

5.
Service pursuant to the law of the state in which service is effected,
5. HOW TO SERVE A CORPORATION

RULE 4(h)
1.
Delivery of a copy of the summons and complaint to an officer,
managing or general agent of the defendant, or to an agent authorized to
receive service

Must be hand delivered

Find someone with enough responsibility that we can expect
him to transmit important papers
RULE 4(e)(1)
2.
Under the provisions governing service of process on individuals in the
courts of the state where the federal court sits

LA 3204 allows notice by certified mail with receipt

3.
Service pursuant to the law of the state in which service is effected,

If served outside of the united states apply (4)(h)(2)

6. WAIVER OF SERVICE

The plaintiff can solicit a waiver of all these technicalities by sending (by first
class mail or other reliable means) the defendant a complaint, two copies of a
notice of the action and a written request that the defendant waive formal
service of the summons and complaint upon him. The written request must
inform the defendant of the consequences of not waiving process and set the
date on which the request was sent

Defendant has 30 days to respond

Be wary of the 120 period in 4(m) is still running

Defendants have an incentive to waive formal service.

1.
4(d)(2) creates a duty to avoid "unnecessary costs of serving the
summons"
2.
4(d)(2) court must impose the costs of service on a defendant who
refuses to waive service without good cause
3.
4(d)(3) give defendants 60 days rather than 30 days to respond to the
complaint if they waive formal service.
7. WHERE DO WE SERVE PROCESS

RULE 4(k)(1)(A)

Federal court can serve process throughout the state in which that
court sits

Court can serve process outside of the state only if the state court could
do so

RULE 4(k)(1)(B) EXCEPTION

We can serve process out of state so long as it is when 100 miles of the
federal court house, however only applies parties joined under RULE 14, 19

RULE 4(k)(1)(C) and (D)

Federal statutes may allow for more service of process outside of the
state
8. WAS SERVICE CONSTITUTIONAL

Notice must be reasonably calculated under all the circumstances to apprise

the defendant of the suit Mullane

ASK: Was there a better way?

CHALLENGING THE ADEQUACY OF SERVICE

12(b)(5), a motion to dismiss for insufficiency of service of process

The fact that service was actually made does not validate the method of
service

If you had made a motion to dismiss previously, then this defense is

waived 12(h)(1)(A)
SUBSEQUENT PAPERS
5(b) subsequent papers may be served by person delivery, or regular mail, the
parties should be in contact and should watch the docket
FEDERAL LONG ARM STATUTE 4(k)

When can a federal court assert personal jurisdiction over a defendant served
under Rule 4
1.
Has the relevant legislature authorized the jurisdiction?

4(k) provides that service "is effective to establish jurisdiction

over the defendant in 4 circumstances
1.
The federal court is authorized to assert jurisdiction of
the courts of the state in which the federal court sits could assert
jurisdiction over the defendant 4(k)(1)(A)
2.
Jurisdiction over impleaded parties served within 100
miles of the courthouse 4(k)(1)(B)
3.
Jurisdiction over parties subject to interpleader
jurisdiction 4(k)(1)(C)
4.
In federal question cases, over parties who have
sufficient contacts with the United States as a whole to
constitutionally support jurisdiction, but whose contacts would
not suffice to support personal jurisdiction in the courts of any
state 4(k)(2)
2.
Would it be constitutional for the court to exercise jurisdiction in the
circumstances of the particular case?

If served under state law look to 14th Amendment

If served under strictly RULE 4 then look to the 5th Amendment

Talbot - REMOVAL
Thursday, May 01, 2008
5:00 PM

INTRO

The federal removal statutes allow the defendant, after the plaintiff has chosen a state
court, to "second-guess" that choice by removing some types of cases from the state court
to federal court

1.
2.
3.
4.
5.

REMOVAL ONLY GOES FROM STATE COURT TO FEDERAL COURT

ALL DEFENDANTS MUST AGREE TO REMOVE
ONLY DEFENDANTS CAN REMOVE
YOU REMOVE TO THE DISTRICT THAT EMBRACES THE STATE COURT 1441(A)
WE REMOVE WITHIN 30 DAYS OF THAT CASE BECOMING REMOVABLE

No removal of a diversity case if any defendant is a citizen of the forum

You cannot remove a diversity case more than 1 year after it was filed
in state court 1446(b)

1446(a) notice of removal must be filed in the federal district court and division within
which the action is pending
1446(d) a copy of the notice must be filed in state court
1446(a) copies of all pleadings, process, and orders served on defendants must be
filed with notice
1446(a) all parties must be notified promptly after filing notice
1446(b) notice must be filed within 30 days after service
81(c) if the answer if filed before removal, the answer stands as the answer in federal
court
81(c) answer within 20 days of complaint or within 5 days after notice for removal is
filed (whichever is longer
6(b) move for extension of time

6(b)(1) before expiration = cause shown

6(b)(2) excusable neglect

Courts have held that all defendants must agree to the removal (no rule)
1441 defendants can remove from state to federal court within the same state
1441(b) Def cannot remove on basis of jurisdiction if sued within own state

Exception: federal question

1441(a) for removal, the case must have been able to be filed in fed ct initially

Talbot - VENUE
Thursday, May 01, 2008
5:00 PM

INTRO
Venue rules (coupled with personal jurisdiction and SMJ) are meant to further restrict
the places where the plaintiff may choose to bring a suit, to assure that suits are tried

in a place that bears some sensible relationship to the claims asserted or to the parties
to the action.
IPJ

i.
ii.
iii.
iv.

Tradition Basis of Personal Jurisdiction (still valid Burnham)

Physical presence
Appearance
Domicile/Citizenship
Consent
Specific Personal Jurisdiction
Claim arises out of the defendant's contact with the forum state and
the long arm statute permits personal jurisdiction (LA 3201 or Rule 4(k) look under service for analysis)
General Personal Jurisdiction
The cause of action is unrelated to the defendant's activities within the
forum, but defendant's continuous and systematic contacts with the state
allow any action against defendant to be filed in the forum state

SMJ

Article III Section II of the United States Constitution sets the outer boundaries
for Federal Subject Matter Jurisdiction. It permits jurisdiction in Federal Courts for
cases arising under Constitution, Federal Statutes and Treaties. It also allows for
suits between parties of diverse citizenship. Because Article III Section II allows for
broad interpretation, Congress enacted 1331 and 1332 to narrow the parameters.
The applicable rule for venue depends on the type of subject matter jurisdiction
available.
Federal Diversity SMJ Basis under 1332 go to 1391(a)
Federal Question SMJ: Basis under 1331 go to 1391(b)

1.

BASIC VENUE RULES

No constitutional aspect to venue

In removal cases venue is in the district embracing the state court

Local actions must be brought in the district where the land lies

Courts treat certain actions relating to interests in land as "local

actions," which must be prosecuted in the county or district in which the
land is located. (ownership, possession, or injury to land)
3.
Transitory Case (not local) RULES THAT FOLLOW

2.

FEDERAL VENUE STATUTE 1391

1391(a) - governs venue in diversity cases, authorizes venue in"

1.
A judicial district where any defendant resides, if all defendants reside
in the same state

2.

A judicial district in which a substantial part of the events or omissions

giving rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated, or
3.
A judicial district in which any defendant is subject to personal
jurisdiction at the time the action is commenced, if there is no district in
which the action may be brought otherwise. (ONLY USED IF THERE IS NO
DISTRICT IN THE US THAT FALLS UNDER 1 OR 2)
1391(b) - governs venue in cases not based solely on diversity of citizenship,
authorizes venue in:
1.
A judicial district where any defendant resides, if all defendants reside
in the same state
2.
A judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of the property that is
the subject of the action is situated, or
3.
A judicial district in which any defendant may be found, if there is no
district in which the action may be brought otherwise. (ONLY USED IF THERE
IS NO DISTRICT IN THE US THAT FALLS UNDER 1 OR 2)

What does "found" mean? Service of process? Subject to

personal jurisdiction?

3.

VENUE INVOLVING COPRORATIONS

1391(c) - defines corporate "Residence" for purposes of applying 1391(a)(1)

and (b)(1)

applies only to corporate defendants (NOT CORPORATE PLAINTIFFS)

Corporate residence is any district in which the corporation is subject to

personal jurisdiction.

For purposes of selecting a district, consider each district its own state.

4.

WAIVER OF VENUE

Venue is a personal privilege that may be waived.

The defendant waives her objection to venue by failing to raise it when she
responds to the plaintiff's complaint. 12(h)(1)

Forum selection clauses in contracts are valid

5.

CHALLENGING VENUE

12(b)(3) is a motion to challenge improper venue

6.

TRANSFER OF VENUE

The transferee court must be a proper venue and it must have personal
jurisdiction over the defendant without waiver

1404 Transfer

The transferor court is a proper venue but we transfer to another venue

for:

7.

Convenience of the parties

Convenience of the witnesses
Interest of justice

Ferens v. John Deere Company (1990)

Where the plaintiff requests that 1404 transfer, the transferee

court should apply the law that the transferor court would have
applied.
1406 Transfer

The transferor court is an improper venue

The court may transfer or dismiss the case

FORUM NON CONVENIENS

Forum Non Conveniens doctrine is based on premise similar to 1404(a) that

sometimes cases are properly filed with respect to SMJ, IPJ, and venue, but still
logically belong somewhere else.

Case should be brought in another sovereign

the court may dismiss a case where the interest of justice indicate that it
should be litigated elsewhere.
1.
Interest and convenience of the parties access to proof
2.
Public interest at stake
3.
Efficiency and expense

Piper Aircraft v. Reyno (1981)

i.
The possibility of an unfavorable change in law should not, by itself, bar
dismissal.
ii.
A plaintiff's choice is given great deference, unless the defendant is
foreign

Talbot - MOTIONS
Wednesday, April 30, 2008
11:31 PM

INTRO
The defendant may answer a complaint with a pre-answer motion as an alternative to
answering the complaint and the defendant need not answer the complaint until the motion is
decided
BASICS

7(b) must be in writing, state grounds for and relief sought and signed via Rule 11
43(a) affidavit testimony can be presented with a motion
RULE 12(a)(4)(A) if a court denies a motion or postpones its disposition, the responsive
pleading shall be served within 10 days of the courts action

RULE 12(a)(4)(B) if the court grants a motion for a more definite statement RULE 12(e)
the responsive pleading shall be served within 10 days

RULE 12(g) only one motion to dismiss is allowed

RULE 12(g) and (h) if not raised before the answer or in the answer the following
defenses are waived:
i.
Personal jurisdiction
ii.
Venue
iii.
The form of the process
iv.
The method of service of process
THE MOTIONS (12(B)(2-5) MUST BE PUT IN THE FIRST RULE 12 RESPONSE(ANSWER, MOTION,
ETC)!!!)

RULE 12(b)(1) motion to dismiss for lack of SMJ

Raised at anytime, cannot be waived

RULE 12(b)(2) motion to dismiss for lack of personal jurisdiction over the defendant

RULE 12(b)(3) motion to dismiss because the court is not a proper venue

RULE 12(b)(4) motion to dismiss for insufficiency of process (something wrong with the
process itself not the method)

RULE 12(b)(5) defense of insufficiency of service of process

Attacks the manner in which the complaint was served

Court will order proper service of the complaint

RULE 12(b)(7) defense of failure to join an indispensable party

Asserts a defect in the scope of the suit as to the plaintiff has framed it

Can be brought until trial

RULE 12(b)(6) motion to dismiss for failure to state a claim on which relief can be
granted
1.
It tests the legal sufficiency of the plaintiff's claim, questioning whether the law
accords a remedy on the facts alleged.
2.
It tests the factual, or formal, sufficiency of the complaint, questioning whether
the plaintiff has set forth her claim in appropriate detail.

Can be brought until trial

Rule 12(c): Motion for judgment on the pleadings after all pleadings are filed treated
as a motion for summary judgment (Rule 56).

RULE 12(e) seeks a more definitive statement

Used if the complaint is vague or ambiguous

If motion is granted, opposing party has 10 days to comply, or the court may
strike the pleading

RULE 12(f) move to strike

The court may order stricken from any pleading any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter

Motion can be made before responding to the pleading, or if response is not

allowed, within 20 days

Talbot - PLEADINGS
Wednesday, April 30, 2008
11:36 PM

INTRO
Pleadings are the papers filed by parties at the beginning of an action, in which they
set forth their positions as to the facts at issue. Pleadings are not evidence; they are
not even sworn testimony by the parties or their attorneys
1.

RULE 11
1.
Certification

RULE 11(a) requires an attorney to sign each pleading and state his
address

RULE 11(b) an attorney's signature certifies to the court that the

attorney believes, after reasonable inquiry, that the factual allegations in the
complaint "have evidentiary support" or "are likely to have evidentiary
support after a reasonable opportunity for further investigation or discovery.

RULE 11(b)(1) a signing attorney certifies that the pleading or motion is

not filed for an improper purpose.

RULE 11(b)(2) attorney's signature certifies that the legal positions

taken in the pleading are warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of existing law or the
establishment of a new law.
2.
The certification is effected every time that document is presented to the
courta continuing certification
3.
Sanction are discretionary
4.
A motion for violation is served but is not filed

Rule 11(c) Motion for sanctions:

Counsel has a 21-day safe harbor from the date of the motion
for rule 11 sanctions to correct the deficient pleading.

The judge must give an order to show cause to justify rule 11

sanctions
GENERAL RULES GOVERNING ALL PLEADINGS

Basic Requirements
i.
RULE 10(a) requires every pleading to have a caption that includes the
name of court, the docket number of the action, the names of the parties, and a
designation of the pleading
ii.
RULE 10(b) requires all allegations to be set forth in numbered
paragraphs and that all allegations in each paragraph "shall be limited as far as
practicable to a statement of a single set of circumstances"

Other Rules
i.
RULE 8(e)(2) allows pleading in the alternative
ii.
RULE 10(c) allows parties to attach exhibits to their pleadings.

iii.
iv.

RULE 10(c) allows a pleader to incorporate prior allegations by reference

in later parts of the pleading
RULE 38(b) provides that a demand for jury trial "may be indorsed upon a
pleading. The right to jury trial is waived if not demanded within ten days of the
close of pleadings

COMPLAINT

In General
i.
RULE 3: a civil action is commenced by the filing a complaint with the
court
ii.
the complaint sets forth the plaintiff's claim
iii.
look to see if the rules allow joinder of all the desired parties
iv.
look to see that the claim is legally sufficient:

the substantive law governing the claims and ascertain whether

there is good ground to file suit.

If not defendant will file a motion to dismiss RULE 12(b)(6)

a.
Courts only look to the face of the complaint
b.
The issue is not whether a plaintiff will ultimately prevail
but whether he is entitled to offer evidence to support the claims.

Requirements
i.
A "short and plain statement of the grounds upon which the court's
jurisdiction depends"

RULE 8(a)(1) requires the plaintiff to allege the basis for SMJ
over the action
ii.
A "short and plain statement of the claim showing that the pleader is
entitled to relief"

RULE 8(a)(2) requires a "short and plain statement of the claim,"

and that very brief, general allegations will suffice to avoid dismissal.
However since RULE 8(b) requires the defendant to respond paragraph
by paragraph, a more detailed complaint will elicit more specific denials
or admissions in the defendant's answer

RULE 8(a)(2) requires the complaint to include a "short and plain

statement of the claim showing that the pleader is entitled to relief.

EXCEPTIONS TO RULE 8(a)(2)

RULE 9(b) averments of fraud or mistake shall be

stated with particularity

RULE 9(g) special damages shall be specifically

stated
iii.
A "demand for judgment for the relief the pleader seeks"

RULE 8(a)(3) requires a demand for relief

RULE 54(c) the demand does not limit the plaintiff's recovery

Dismissal
i.
Voluntary Dismissal
RULE 41(a) permits the plaintiff to dismiss:

ii.

By filing a notice of dismissal at any time before service by the

adverse party of an answer or of a motion for summary judgment,
whichever occurs first, or
By filing a stipulation of dismissal signed by all parties who have
appeared in the action.
Involuntary Dismissal
a.
RULE 41(b) allows the court to dismiss the plaintiff's case

Rule appears to preclude the court from ordering involuntary

dismissal on its own motion, since it provides that "a defendant
may move for dismissal" under the following reasons

Lack of jurisdiction

Improper venue

Failure to join a party under RULE 19

ANSWER
The answer is the defendants response that states his position as to each of the
allegations in the complaint and asserts any other defenses he may have to the plaintiff's
claim

a.
b.

c.

d.
e.

f.

i.
ii.
iii.
iv.
v.
vi.

Responses to the Plaintiff's Allegations

RULE 7(a) requires that the defendant respond with the complaint
RULE 12(a)(1)(A) defendant must serve an answer to the complaint
within 20 days of receiving the summons and complaint (60 days if process
waived)
RULE 8(b) requires the defendant to respond to each allegation in the
complaint by:

admitting or denying the allegations

stating the parts that are true and denying the remainder

stating that the defendant does not have enough information to

assess the truth of the allegation

Such an allegation has the effect of a denial.

RULE 8(b) also requires the defendant to respond clearly and forthrightly
to the allegations of the complaint
RULE 10(b) provides that "each defense other than denials shall be
stated in a separate count or defense whenever a separation facilitates the clear
presentation of the matters set forth"
RULE 8(e)(2) a defendant may plead inconsistently.
Affirmative Defenses (raised via 8(c))
Accord and satisfaction
Arbitration and award
Assumption of risk
Contributory negligence
Discharge in bankruptcy
Duress

vii.
viii.
ix.
x.

i.
ii.
iii.

i.
ii.
iii.
iv.
v.

Estoppel
Failure of consideration
Fraud
Illegality
Claims by the defendant
Counterclaim
Cross-claim
Force joinder of parties
Failure to Respond: Default and Default Judgment
If a defendant fails to plead or otherwise respond in time they are held
in default. This is just a notation on the court's docket sheet.
The party must seek a default judgment
RULE 55(b)(1) when the judgment is for a sum certain or a determinable
amount the clerk can enter judgment
RULE 55(b)(2) in all other cases you must ask the judge
RULE 54(c) a judgment by default shall be the same as the amount
prayed for in the demand for judgment.

REPLY

7(a) requires a reply to a counterclaim if denominated as such

12(a)(2) reply must be served within 20 days of answer

SUPPLEMENTAL PLEADINGS

15(d). Facts that arise after the filing of the pleading.

This motion is made to submit a supplemental pleading setting forth

events that arise after the filing of the original pleading.

Must be with courts permission.

Freely Granted unless undue delay, bad faith, prejudice.

Quick Terms
Upon information and belief
Lack information sufficient to form belief
Insufficient information to form a belief
Admit specific, deny the rest (general)

Admit that Smith was driving truck, deny rest

Admit accident involved Acme employee, deny the rest

Talbot - AMENDMENTS
Wednesday, April 30, 2008
11:32 PM

INTRO

Rule 15 establishes fairly lenient rules regarding amendment of pleadings.

AMENDING BEFORE TRIAL

15(a) - before the responsive pleading is filed no permission is requirement for the FIRST
amendment

15(a) - after the responsive pleading is filed, permission to amend shall be freely given
where justice so requires by the court OR with the consent of the other parties.

Granted unless opponent shows a compelling reason not too

Undue delay, bad faith, gross negligence, prejudice to other party

AMENDING TO CONFORM TO EVIDENCE

15(b) used when evidence at trial is different than the pleadings

15(b) allows two ways to amend a pleading to conform to evidence

1.
Consent of the parties

Express

Implied through a failure to object

2.
Permission of the judge with good reason and no prejudice
RESPONSE TO AMENDED PLEADING

A party shall plead response to amended pleading within the time of the original
pleading or within 10 days whichever is greater.

Talbot - RELATION BACK

Thursday, May 01, 2008
4:45 PM

INTRO
Rule 15(c) provides the framework for determining whether to allow a party to amend their
complaint after the limitations period for the complaint has run.
IN GENERAL

RULE 15(c) provides that the amendment to a pleading will "relate back to the date of
the original pleading" if it arises from the conduct, transaction, or occurrence set forth in
the original pleading
ADD A NEW CLAIM

RULE 15(c)(2) provides that, once you have sued the defendant for particular conduct,
or a certain transaction or occurrence, any amendment to add new claims based on the
same conduct, transaction or occurrence will be treated, for statute of limitation
purposes, as though it had been in the original complaint.

Marsh v. Coleman Company (1992)

P claimed his termination violated a federal age discrimination act. He later amended his
complaint to allege fraud against his employer
1.
Since he limited his factual allegations to his termination, "a reasonably prudent
person would not have expected from reading the plaintiff's original complaint that
promises made to the plaintiff before termination might be called into question
through subsequent pleadings.
2.
Court found that the amended pleading alleging fraud did not relate back to the
original complaint

ADD A NEW PARTY

RULE 15(c)(3) amendments to add a party will only relate back if three requirements are
met:
1.
The claim against the new party to be added by amendment arises from the
same conduct, transaction or occurrence as the original claim (RULE 15(c)(2)
satisfied)
2.
The new party had notice, within the period for delivery of the original
complaint, that the action against the original defendant had been filed (120 days
from filing 4(m))
3.
The new party knew or should have known that, but for a mistake as to the
identity of the proper party, the original action would have been against him.

Talbot - JOINDER
Thursday, May 01, 2008
4:46 PM

IF THE CLAIM IS AGAINST A THIRD PARTY/ADDITIONAL PARTY THEN ADD UNDER RULE
19, 20 THEN RETURN

1. CLAIM JOINDER BY PLAINTIFFS

RULE 18(a) allows the claimant to assert every claim she has against the
opposing party. (permissive rule)
i.
Original claim
ii.
Counterclaim
iii.
Cross-claim
iv.
Third-party claim

RULE 18(a) allows claims to be asserted are not transactionally related

2. CLAIM JOINDER BY DEFENDANTS

COUNTERCLAIMS

RULE 13(a) Compulsory Counterclaims (only compulsory claim)

1.
"Same transaction or occurrence"

2.

IT IS A LOGICAL RELATIONSHIP. whether essential facts of

various claims are so logically connected that considerations of juridical
economy and fairness dictate that all the issues resolved in one
lawsuit. (Hart)
3.
SMJ : 1331, 1332, or 1367
4.
IPJ does counterclaim waive objection to IPJ? Argue 13(a)
requires assertion of counterclaims
RULE 13(b) Permissive Counterclaims
1.
Defending parties may also assert counterclaims that are
completely unrelated to the original claim. The court could sever the
claim under Rule 42(b) b/c efficiency is not an issue.
2.
SMJ: (Same Transaction or Occurrence not present-Case or
Controversy not present, 1367 IS NOT AVAILABLE! NOTE IT ON
EXAM!)
Rule 18 Permissive Joinder of Claims Analysis if the asserting party has
already asserted a claim

CROSS-CLAIMS

RULE 13(g) allows a party to assert an offensive claim against a co-party

if it arises from the same transaction or occurrence as the underlying action

Analysis if it arises out of the same transaction or occurrence

that is the subject matter of the original litigation.
i.
Same event (same occurrence)
ii.
Some overlap of witnesses and evidence

What are the witnesses talking about and is there

overlap (explain how they overlap)

Same evidence (specifically explain what

evidence)
iii.
May be made against any co-party (not opposing party) if
they arise out of Same Transaction of Occurrence of
original claim, counter-claim, or relate to the res in an in
rem action. Can be for indemnification. 1367 available.
iv.
SMJ: 1331 or, 1332, 1367.

Rule 18 Permissive Joinder of claims IF the asserting party has already

asserted a claim
1.
Power, Can we join the claims?
i.
any claim or alternative claim against another party may
be joined without restriction
ii.
Contingent claims are allowed (a claim not yet ripe unless
another claim succeeds)
2.
Discretion, should we join the claims?
i.
Efficency: factual/ logical/ legal similarity of the claims
ii.
Confusion/ prejudice

3.

If not, then the court can order separate trials under 42 (B)
Severance.
4.
SMJ

3. PROPER PARTIES

RULE 20(a) who may be joined as co-plaintiffs in a case? 2 part test:

i.
Same transaction or occurrence
ii.
Our claims raise some common question

SMJ

IPJ
RULE 21 misjoinder of parties is not grounds for dismissal. Parties may be
dropped by the court.

4. NECESSARY AND INDISPENSIBLE PARTIES

RULE 19 who must be joined in a case

"Just Adjudication" basically Is the absentee necessary? 19(a)

Yes if meets any of the following:

1.
19(a)(1) can the court accord complete relief among those
already joined? If no then meet
2.
19(a)(2)(i) the absentee's interest may be harmed if she is
not joined
3.
19(a)(2)(ii) does the absentee's interest potentially subject
the defendant to multiple or inconsistent obligations?

Exception: joint-tortfeasors are not necessary

Is Joinder of the absentee feasible?

Will joinder deprive the court of complete diversity?

Cant the court get personal jurisdiction over the absentee?

If answer to 1 and 2 differ, should the court proceed without the

absentee or dismiss the case? 19(b)

Courts will almost never dismiss unless there is an alternative

forum

To what extent a judgment rendered in the person's absence

might be prejudicial to the person or those already parties

The extent to which, by protective provisions in the judgment,

by the shaping of relief, or other measures, the prejudice can be
lessoned, or avoided

Whether a judgment rendered in the persons absence will be

adequate

Whether the plaintiff will have adequate remedy if the action is

dismissed for nonjoinder
IF FAIL TRY TO GET UNDER PROPER PARTIES
12(b)(7) allows dismissal of a case for failure to join necessary parties under
RULE 19

Cases

Haas v. Jefferson National Bank (1971)

Haas(OH) sues a bank (FL). The bank moves to dismiss under 12(b)(7),
and court responds with a Rule 19 order on Haas to join Glueck(OH).
a.
Court holds that being an important witness is not enough for
compulsory joinder RULE 19(a)(1)
b.
Court holds that Glueck has a an interest that would be impeded
if he is not joined RULE 19(a)(2)(i)
c.
Since complete diversity is not gone, the court dismisses for two
reasons
1.
Without Glueck, the judgment will be prejudicial to the
bank
2.
There is an adequate remedy available, state court
Temple v. Synthes Corp. (1990)
Temple (MS) sued Synthes (PA) in federal court. Temple sued
LaRocca(LA) and Hospital(LA) in LA state court

Temple and LaRocca cannot make a motion to remove to federal

court because of 1441(b)

1441 a is rule of removal, b is exception will only remove

by defendants sued in their own state under federal question

Synthes makes a RULE 12(b)(7) motion because Synthes and

LaRocca are necessary parties

LaRocca and the Hospital or not RULE 19(a)(1) parties

Not RULE 19(a)(2)(i) or RULE 19(a)(2)(ii)

RULE 12(b)(7) motion denied

5. IMPLEADER (third party practice)

RULE 14(a) allows a defendant to assert any claim against a third-party

defendant arising out of the transaction or occurrence that is the subject matter
of the plaintiff's claim against the third-party plaintiff
LOOK TO INDEMNIFICATION

6. INDEMNIFICATION
Indemnification is the addition of a third party who may also be liable for some or all
of the existing claim.

IF PLAINTIFF IS ASSERTING - RULE 14(b)

When a counterclaim is asserted against a plaintiff, the plaintiff may

cause a third party to be brought in under the circumstance which under
this rule would entitle a defendant to do so.
Sen. 7: can assert any claim against the 3rdparty arising out of the same
transaction or occurrence that is the subject matter of the 's claim against the
3rdparty .

Sen. 8: Any party may move to strike 3rd party claim, or for its severance or
separate trial.

IF DEFENDANT IS ASSERTING - RULE 14(a)

Sen. 1: may bring in 3rd party who is liable to for all or part of s claim
against .
Sen. 2: need not obtain leave to make service if files 3rd party complaint not
later than 10 days after original answer
Sen. 3: Otherwise must obtain leave on motion upon notice to all parties to
the action
(discretionary with the court)
Sen. 8: Any party may move to strike 3rd party claim, or for its severance or
separate trial.

3.

IF THIRD PARTY DEFENDANT IS ASSERTING - RULE 14(a)

Sen. 4: 3rd party shall make any defenses to s claim as provided in R. 12 and
any counterclaims against or cross claims against other 3rd Party s as
provided under R. 13
Sen. 5: 3rd Party may assert against any defenses which has to s claim
Sen. 6: 3rd Party may assert any claim against arising out of the transaction
or occurrence that is the subject matter of s claim against .
Sen. 8: Any party may move to strike 3rd party claim, or for its severance or
separate trial.
Sen. 9: 3rd party may bring in 4th party - 3rd party may proceed under this
rule against any person not a party to the action who is or may be liable to the
3rd party for all or part of the claim made in the action against the 3rd party .

IPJ
Do complete analysis for new party

SMJ
1331, 1332, 1367

7. INTERVENTION
Parties not joined under rule 19 or 20 can nevertheless intervene into the action
through RULE 24

Motion to intervene must be made "upon timely application" rule 24

We look to how close we are to trial and when the intervener became
aware of the litigation
INTERVENTION OF RIGHT
24(a)(1) - when a statute confers an unconditional right to intervene

24(a)(2) - the intervener has an interest in the subject of the action,

disposition of the action as a practical matter impairs or impedes the
applicant's ability to protect that interest, unless the intervener's interest is
adequately represented by existing parties
1.
Show interest will be harmed if not joined and
2.
Nobody is representing her right now

Just like 19(a)(2)

1367(a) generally allows supplemental jurisdiction over 19(a)
interventions

PERMISSIVE INTERVENTION (discretion of the court)

i.
24(b)(1) - when a statute confers a conditional right
ii.
24(b)(2) - when the intervener's claim or defense and the main action
have some question of law or fact in common

Talk about common issues of fact

Talk about common issues of law

Talk about the seriousness of the intervener's interest

Ask if it will unduly delay or prejudice the adjudication of the

rights of the original party.

CONCLUSION: how great of a gain in efficiency will there be by

combining claims

SMJ
i.
1367(a) generally allows supplemental jurisdiction over 19(a)
interventions
ii.
Do analysis for 19(b) interventions

IPJ

The intervener voluntarily submits to the courts jurisdiction

Rule 42 can be used to separate the trials

8. INTERPLEADER

When the stakeholder wants all parties with an interest in the thing present so
one judgment is binding on them all.
Prevents issues of multiple liability
RULE INTERPLEADER RULE 22

Complete diversity

Over 75K amount in controversy

Proper venue
STATUTORY INTERPLEADER 1335
1.
Minimal diversity 1335(a)(1)

Amount in controversy 1335(a)(1)

i.
Amount must exceed $500
ii.
Deposited in the court
3.
1397 venue where any plaintiff resides
4.
2361 Nationwide service of process IPJ
Pan American Fire & Casualty Co. v. Revere (1960)
School bus accident, multiple deaths

Insurance company brings interpleader because it doesn't want to pay

out over its policy limit

Court allows the joining of multiple state court claims to allow one
ruling
State Farm Fire & Casualty Co. v. Tashire (1967)
Bus-truck accident in CA

The insurer brought an interpleader action for the $10K policy

This was a proper case for interpleader

Not a proper case for injunction, because this one little policy is not
important enough to shape the wholke claim
Counterclaim for interpleader RULE 13(a)
Join additional defendants on counterclaim RULE 13(g)
2.

Talbot - CLASS ACTIONS

Wednesday, April 30, 2008
11:30 PM

INTRO
Class action status is a legal device that allows disputes involving large numbers of
plaintiffs to be settled in one trial or settlement. One or more class representatives are
formally joined as parties in the case. The remaining members of the class action are not
joined, but are bound to the outcome. If the plaintiffs can meet the requirements set
forth in Rule 23(a) and (b) they can make a motion for class action certification
1. Who is in the class?
1. INITIAL REQUIREMENTS

The class must meet all of the factors in 23(a)

Numerosity: So many members that joinder of all members is impractical. 40

usually enough, but no magic number.

Some common question of fact or law that unite all the claims by all the
members.

Talk about issues of fact, then issues of law

3.
Typicality: Shared claims or defenses between the representative and the nonparty members. If there are unique subsets of the members, then sub-class groups
are created with sub-representatives in order to satisfy due process.

The class can be broken down into subclasses each with their own class
status 23(c)(4)
4.
Fair and Adequate Representatives: Nature of the adequacy of the class
representation (must be capable of exercising judgment for the class) and the
representatives attorney (experience and resources).

Look at the representative (age) and the law firm

2. WHAT KIND OF CLASS ACTION?

One of these factors must be met 23(b)

23(b)(1)(A) Separate prosecution will create inconsistent adjudications

which would establish incompatible standards of conduct OR

23(b)(1)(B) adjudications with respect to individual members of the class

which would as a practical matter be dispositive of the interests of the other
members not parties to the adjudications or substantially impair or impede
their ability to protect their interests

Usually the class actions have some pre-existing relationship, and the
adjudication would effect everyone in that group so class action status is
needed to protect all the witnesses.

23(b)(2): The opposing party has acted towards the class such that
declarative and injunctive relief is appropriate for a class. Focus is not
monetary relief OR

Ex. Civil right action gender discrimination

23(b)(3) : The court finds that the questions of law or fact common to the
members of the class predominate over any questions affecting only
individual members, and that a class action is superior to other available
methods for the fair and efficient adjudication of the controversy.

DISCUSS:
i.
Interest of members of the class in individually
controlling the prosecution or defense of separate actions
ii.
The extent and nature of any litigation concerning the
controversy already commenced by or against members of the
class
iii.
The desirability or undesirability of concentrating the
litigation of the claims in the particular forum
iv.
The difficulties likely to be encountered in the
management of a class action.

COMMON ISSUES PREDOMINATE:

i.
Common issues all go to liability (Independent issues Individual would be particular harms, injuries)
ii.
Predominate Issues where the real battles are going to
be fought. This is where most of the litigation time will be spent.
(Court will primarily have to spend time deciding)

CLASS ACTION IS THE SUPERIOR METHOD FOR ADJUDICATION

i.
Better than having all individual s sue on their own

ii.
iii.

iv.
v.

Efficiency
Interest in Individual in bringing their own claim
(variations in amount of damages sought), and more $$ by going
to trial
Maximum pot first to court gets all the money. (Small
company will be insolvent) more equitable to be class action.
Only way case will be brought, because individual
monetary claim is not much ($25).

3. NOTICE

Not requires for (b)(1) or (b)(2)

For 23(b)(3) class actions, the court must send notice (that they can opt out see
below) to all members who can be identified through a reasonable effort. Tells
them:

They can opt out

They are bound if they do not opt out

They can enter a separate appearance through counsel

4. WHO IS BOUND

Everyone except those who opt out of a (b)(3)

(b)(1) and (b)(2) cannot opt out.

5. SMJ

To bring the class action into court, the class must allege the basis for proper SMJ
over which the court may hear this claim.
FQSMJ

1331 FQSMJ (civil rights, security fraud, etc)

DIVERSITY SMJ

Special rules govern diversity in class actions. Specifically the Strawbridge

complete diversity rule is abandoned.

1332(d) governs diversity SMJ over class actions

The amount in controversy must exceed five million dollars 1332(d)(2)

and any member of the class must be diverse from any defendant
1332(d)(2)(A)

Even then the court may decline to exercise jurisdiction "in the interest
of justice and looking at the totality of the circumstances" 1332(d)(3)

1332(d)(5)(B) If the number of members of the class is less than 100

1332(d)(2) does not apply.
Old Fashioned Diversity 1332(a)

Complete diversity Strawbridge

Citizenship of the class reps (including subclasses)

Amount in controversy

Every plaintiff must have more than 75K individually - Zahn

Supplemental Jurisdiction 1367

1367 can be used to bring un absent class members according to Abbot

which argues that 1367 overruled Zahn 5th circuit

6. IPJ

In general IPJ rules are meant to protect defendants who have the most to lose,
therefore the court needs IPJ over all members of the defendant class.

Specific IPJ

Continuous and systematic contacts (general IPJ)

Class representatives can consent to IPJ.

Philips - not really worried about IPJ over plaintiffs since there interest
are not being impeded
7. PROCEDURE

In the complaint it must be specified that the suit is a class action 23(c)(1)(A)

A class representative must make a motion to certify the class action 23(c)(1)
and the class must be notified under 23(c)(2)

The class can be broken down into subclasses each with their own class status
23(c)(4)

The court must appoint counsel under 23(g)

The court has an extra interest in supervising the class action to protect the
interest off all the class members that are not there to watch out for themselves.
The court must approve any settlement, dismissal, or compromise 23(e)
8. OTHER

Disputes between members:

A divergence of goals/interest between the representative and the

members violates due process

A disagreement about case tactics/methods does not violate Hansberry

but can be unfair

Class Action Fairness Act of 2005: The Act gives federal courts jurisdiction to
certain class actions in which the amount in controversy exceeds $5 million, and in
which any of the members of a class of plaintiffs is a citizen of a state different
from any defendant

Talbot - DISCOVERY
Wednesday, April 30, 2008
11:38 PM

Whole idea is to decide the trial on the merits

1.

REQUIRED DISCLOSURES

26(a) Parties must produce information at 3 different times in the litigation

even if nobody request it
1.
26(a)(1) Initial disclosures
i.
Must be done within 14 days of 26(f) conference

ii.

iii.
iv.
2.
i.
ii.

iii.

2.

Must identify people and documents with discoverable

information that you may use to support your claims or defenses (not
information for impeachment)
Plaintiff must give a computation of damages
Defendant must disclose insurance they have for all or some
part of the claim
26(a)(2) experts
RULE 26(a)(2) requires that at least 90 days before trial, each
party identify all experts who may testify at trial.
RULE 26(a)(2)(B) requires the disclosure be accompanied with a
written report prepared and signed by the expert

This report must include "the data or other information

considered by the witness in forming the opinions"
RULE 26(b)(4)(A) once the report has been turned over, the
expert may be deposed.

26(a)(3) trial evidence

1. parties are required prior to trial to disclose the names of witnesses
expected to be called at trial or whose depositions will be used at trial,
and a list of documents and exhibits expected to be offered into evidence
2. these disclosures must be made at least 30 days prior to the trial, the
other side then has 14 days to raise objections.

DISCOVERY TOOLS

DEPOSITIONS
RULE 30(a)(2)(A) imposes a presumptive limit of 10 depositions per side
RULE 30(d)(2) limits each deposition to one day of seven hours
RULE 30(b)(2) permits depositions to be recorded electronically
RULE 30(b) if the deponent is a party, counsel initiates the deposition by
sending a notice of deposition to all parties in the action, stating the time
and place of the deposition
RULE 45 if the deponent is not a party, he must be "subpoenaed" for
the deposition
RULE 30(c) the witness is sworn, subjecting the testimony to the
penalties of perjury
RULE 30(c) unlike in trial, if a question is objected to, the witness must
still answer
RULE 30(d)(1) objections based on privilege allows counsel to instruct
the witness not to answer
RULE 32(c) a transcript is required if the deposition is later offered into
evidence.

INTERROGATORIES

RULE 33 allows any party to send to any other party written questions
that require a written response under oath.

RULE 33(a) imposes a presumptive limit of 25 interrogatories per party

RULE 33(b)(1) requires the responding party to answer each

interrogatory under oath

3.

REQUEST TO PRODUCE DOCUMENTS OR EVIDENCE

RULE 34(c) available from a non-party with a subpoenaed.

RULE 34 permits a party to require another party to produce for

inspection, copying or testing all relevant documents or other tangible
things.

4.

PHYSICAL OR MENTAL EXAMINATION

RULE 35 requires a court order to require a party to submit to a physical

or mental examination by a "suitable licensed or certified examiner"

RULE 35 can only be used when the movant shows "good cause" and
the mental or physical condition is "in controversy"

5.

REQUEST FOR ADMISSION

RULE 36 Asks the party to admit or deny

Failure to deny can be an admission

3.

RULE 26(g)
Counsel must certify that request and responses are not frivolous

SCOPE OF DISCOVERY

Standard 26(b)(1)

We can discover anything relevant to a claim or defense of any party

Things Protected From Discovery

Privileged Material

RULE 26(b)(1) permits discovery only of material that is "not

privileged"

RULE 26(b)(5) requires a party to claim the privilege "expressly"

and to describe in sufficient detail the documents, communications, or
things not produced so as to enable "other parties to assess the
applicability of the privilege or protection."

Work Product

RULE 26(b)(3) bars the production of certain materials

developed in anticipation of litigation in three categories Hickman Case
a.
Documents prepared in anticipation of litigation that
contain information that can reasonably be obtained through
other means, cannot be discovered

b.

Opposing counsel's thought process in preparing a case,

such as legal theories or litigation strategy, cannot be discovered.
c.
If the requesting party demonstrates that (1) she has a
substantial need for materials developed in anticipation of
litigation, and that (2) similar information cannot be obtained
through other means without substantial hardship, the court may
order production
4.

DISCOVERY SANCTIONS

RULE 37(c)(1) failure to make a required disclosure 26(a) or to amend or

supplement its responses 26(e)

RULE 37(c)(2) failure to admit something that should have been admitted under
36

RULE 26(c) protective order

The request is over burdensome

PARTIAL FAILURE TO COMPLY (minor sanction)

Party answered some interrogatories, but not all

Party answered some question at deposition, but not all

Party responded to request for production, but has failed to say he will
allow production

TOTAL FAILURE TO COMPLY

Party failed completely to show at deposition

Party failed to answer any interrogatories

Party failed to respond to request for production

PROCEDURE: must show that he attempted to confer with other party

in good faith to prevent judicial intervention

RULE 37(a)(2) motion to compel

RULE 37(b) authorizes the court, if the party does not respond to
the motion to compel, to impose sanctions
a.
Striking claims
b.
Taking disputed facts or claims as established
c.
Excluding evidence
d.
Dismissing the action
e.
Ordering payment of the fees and expenses caused by
the refusal to comply

RULE 37(a)(4) the court can order the noncomplying party to pay
the moving party's expenses and fees for the motion to compel

RULE 37(a)(4)(C) the court may enter protective orders defining

the scope of required discovery and barring unwarranted or harassing
doscovery
o

Discovery of Material in Electronic Form

RULE 34 provides for discovery of "data compilations" and has
consistently been interpreted as extending to material in electronic form

RULE 26(b)(2) allows the court to limit discovery when "the burden or
expense of the proposed discovery outweighs its likely benefit."
RULE 26(c) allows a court to enter a protective order to prevent "undue
burden or stress"

5.

TIMING

RULE 16(b) the scheduling order can be issued at any time, but must be issued
no later than 90 days after the appearance of the defendant and 120 days after
service of the complaint.

RULE 26(f) requires that all parties or their counsel confer "as soon as
practicable and in any event at least 21 days before the scheduled conference is
held or a scheduling order is due under RULE 16(b)

RULE 26(d) the purpose of the conference is to discuss "the nature and basis of
their claims and defenses and the possibilities for a prompt settlement or
resolution of the case, to make or arrange for the disclosures required by RULE
26(a)(1), and to develop a proposed discovery plan."

RULE 26(d) no discovery can occur until the after the conference has occurred.

RULE 26(a)(1) the initial disclosures required by RULE 26(a)(1) must be

produced within 14 days after the RULE 26(f) conference

RULE 26(f) within 14 days after the RULE 26(f) conference, the parties must
submit a written report of this conference.

6.

PRETRIAL CONFERENCES AND ORDERS

RULE 16(a)(5) the express objective of conferences has been "facilitating the
settlement of the case"

RULE 16(b) federal judges can refer RULE 16 matters to a magistrate judge

RULE 16(b) requires a scheduling order in all cases except those falling into
categories exempt by court rule.

RULE 16(b) permits, but does not require, the court to hold a scheduling
conference with the parties or their lawyers to assist in her preparation of the
scheduling order.

RULE 16(b)(1-3) The scheduling order must establish time limits for joinder of
additional claims or parties, amendment of pleadings, motions, and discovery

RULE 16(c) through ongoing monitoring, the court may be able to narrow the
number and scope of issues still needing resolution at trial.

RULE 16(d) "as close to the time as reasonable under the circumstances," the
court may hold the final pretrial conference, to "formulate a plan for trial,
including a program for facilitating the admission of evidence."

RULE 16(e) the judge enters an order "reciting the action taken" at the

Talbot - SUMMARY JUDGMENT

Thursday, May 01, 2008
5:11 PM

INTRO
The motion for summary judgment is designed to allow early resolution of cases in which the
plaintiff meets the minimal burden to plead the elements of a compensable claim, but cannot
prove one or more of those elements.
MOTION TO DISMISS
12(b)(6) Granted if the face of Pleadings dont assert a claim
MOTION FOR SUMMARY JUDGMENT

RULE 56 Decided on law based on undisputed facts. Can be beyond pleadings

(discovery, affidavits, etc.).

What will the judge decide on?

a.
Whether there is a genuine issue of law or fact
1.
Genuine Issue Enough evidence that reasonable jury would find in your
favor (Anderson)
2.
Material Fact: Fact that will affect the outcome of the dispute
3.
Cite Celotex needed burden of proof requires more than a little bit
to get to jury If fraud .. then must be stated with particularity.
b.
Whether moving party is entitled to judgment as a matter of law (Typically not a
problem)

If get an Affirmative Defense Question (Failure to state it).

1. Preclusion 8(c)
2. Is this an Affirmative Defense
3. R. 15 (b) - Permission of the judge with good reason and no prejudice (Judge
can admit conditionally with a continuance.)
a. Then Apply it
4. Rule 16(e) Pretrial order shall be modified only to prevent manifest injustice

Can we assert collateral estoppel (issue preclusion) or res judicata (claim

preclusion)?
If you were not a party to the original claim, then res judicata does not
apply. (class action situation).
THESE ARE BOTH AFFIRMATIVE OFFENSES UNDER RULE 8c!!!
Defensive mutual collateral estoppel is acceptable
Offensive is only ok sometimes.

Talbot - SUPPLEMENTAL JURISDICTION

Thursday, May 01, 2008
4:08 PM

INTRO
The rules frequently authorize joinder of claims over which there is no independent basis of SMJ.
This dilemma was somewhat solved by the creation of supplemental jurisdiction through 1367.
If the plaintiff brings a proper federal claim or diversity claim, so the court has "original
jurisdiction," the court may hear all claims that are part of the same "case or controversy under
Article III."
FIRST, DOES THIS CLAIM MEET 1367(a) statute of Gibbs

Other claims that are part of the same "case or controversy"

Case or controversy was defined in Gibbs (albeit before 1367 was drafter) as the
"common nucleus of operative fact" as the federal claim.

EXAMPLES
A first sues a non-diverse party on a claim of federal question. A state law claim is
joined under 18(a). No independent basis for jurisdiction Supplemental rescues.
A first sues a non-diverse party on a claim of federal question. The brings a
compulsory counterclaim 13(a) based on state law. No independent basis for
jurisdiction Supplemental rescues.
A (LA) sues (CA) on a claim of federal question. The impleads a 3P (CA) under
14(a) for a state law claim. No independent basis for jurisdiction Supplemental
rescues.

SECOND, IT CANNOT MEET 1367(b) statute of Owens

Limits on supplemental jurisdiction: will not extend to certain claims by PLAINTIFFS in

DIVERSITY cases
1.
Claims against persons made parties under rule 14, 19, 20, or 24
2.
Claims by persons proposed to be joined as plaintiffs under rule 19
3.
Claims by persons seeking to intervene as plaintiffs under Rule 24

If allowing these claims violated 1332

EXAMPLES
A 3P (LA) is joined by the (CA) under 14(a). (LA) cannot assert a state law
claim against the 3P.
2 (CA) is joined under 19 or 20 with 1 (LA) (CA) cannot assert a state law
against 2.
2 (LA) intervenes under 24 into a suit between (LA) and (CA). cannot
assert a 13(g) cross claim against 2.
(LA), in a suit against (CA), makes a Rule 19 motion to join X (CA) as 2.
Motion denied.

X (CA) seeks to intervene as 2 under Rule 24 in a suit between (LA) and

(CA). Motion denied
FINALLY, 1367(c) ALLOWS COURT DISCRETION

Gives the court discretion to decline to exercise supp jur for the following
1.
Claim raises a novel or complex issue of state law
2.
The claim substantially predominates over the claim or claims over which the
court has original jurisdiction
3.
The court has dismissed the original claims
4.
In exceptional circumstances, there are other compelling reasons for declining
jurisdiction