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I. Personal Jurisdiction
A. In Personam Jurisdiction
6. Waiver of service Method for waiving formal service of process. Send process and waiver form to
defendant with a self-addressed stamped envelope. If she returns it, then she waives service of
process. If she does not waive formal
service, then the plaintif will have to have service afected formally. Then, though, the defendant
will have to pay for the service.
7. Rule 4(k)(1) Can serve process throughout the state in which the federal court sits. We can serve
process out of the state only if a state court could have served the process there, as well.
a. Exceptions:
i. Rule 4(k)(1)(B) We can serve process from a federal court out of state as long as it
is within 100 miles of a federal courthouse. However, this does not apply to service
of process on an original defendant. It only applies to parties who are joined later
under Rules 14 or 19.
ii. Rule 4(k)(1)(C) Federal statutes may allow for more service of process outside of
the state.
B. Constitutional Standard for Notice
1. Mullane v. Central Hanover Bank Notice must be reasonably calculated under the circumstances
to apprise the defendant of the suit.
a. Jones v. Flowers usually it is not required that D actually receive the service; but if P is
aware that D has not, due process may require that P make further efort to ensure notice.
2. Notice by publication Usually in the newspaper. This type of notice might be okay. Last resort.
C. Opportunity to Be Heard
1. Major factors to protect the defendant:
a. Defendant gets a hearing on the merits at some point.
b. Plaintif must give an affidavit of its claim.
c. May require that the plaintifs affidavit state the facts in specificity.
d. Get a writ of possession from a judge, not a sherif.
e. Plaintif may be required to post a bond.
f. Defendant gets the property back pending litigation by posting a bond.
III. Subject Matter Jurisdiction What court do we go to: state court or federal court?
A. Diversity of Citizenship
1. 1332(a)(1) Requirements for a diversity of citizenship case. Two requirements:
a. Case must be between citizens of diferent states.
i. Complete diversity rule for invoking diversity jurisdiction there is no diversity if any
plaintif is a citizen of the same state as any defendant. (Strawbridge v. Curtiss)
ii. Test for diversity when the case is filed. A subsequent change in citizenship is
irrelevant.
iii. An American is a citizen of the state in which she is domiciled. Domicile is
established by two concurrent factors:
(1) you must be present in the state, and
(2) you must form the intent to make it your permanent home.
iv. The citizenship of a corporation. For a corporation, citizenship is defined by
1332(c)(1). Corporation is a citizen of all states where incorporated, and the one
state where it has its principal place of business.
v. Citizenship of an unincorporated business, such as partnerships or limited liability
companies (LLCs). Look to the citizenship of all members.
vi.
What happens when representatives sue on behalf of others?
(1) 1332(c)(2) Suits on behalf of decedents, minors, and incompetents In
those cases, you look to the citizenship ofthe person being represented, not
the citizenship of the representative.
(2) Class action suit Look at the citizenship of the representative only, not
the citizenship of those being represented.
b. Amount in controversy must exceed $75,000.
i. 1332(a)(1) The amount must exceed $75,000, not counting interest on the claim
or costs.
ii. The plaintifs claim governs unless it is clear to a legal certainty that she cannot
recover that much.
iii.
Plaintifs ultimate recovery is irrelevant to subject matter jurisdiction.
iv. Aggregation is where we add together two or more claims to get over $75,000. We
aggregate claims if there is one plaintif versus one defendant. You cannot aggregate if
there are multiple parties on either side. However, if there have joint claims, you go with
the total value.
B. Federal Question
1. 1331 A claim that arises under federal law. Citizenship is irrelevant and amount in controversy
does not matter.
a. Look only at the plaintifs complaint. Do not look at anything the defendant does, either
in answer or counterclaim.
b. Well-pleaded complaint rule Look only at the plaintifs claim. To test, ask: is P enforcing a
federal right? If so, it is probably a federal question case.
C. Supplemental Jurisdiction
1. United Mine Workers of America v. Gibbs Federal court has supplemental jurisdiction over claims
that share a common nucleus of operative fact with a jurisdiction-invoking claim. Common nucleus
test is always met by a claim that arises from the same transaction or occurrence as the claim that
has invoked an independent basis of federal subject matter jurisdiction.
2. 1367 now codifies the doctrine of supplemental jurisdiction. A case is properly in federal court, but
there is a claim in the case that does not meet diversity or federal question. Supplemental jurisdiction
can make it possible for the court to hear this claim. Apply 1367 in two steps.
a. Does 1367(a) grant supplemental jurisdiction to this claim?
i. Yes, if it meets Gibbs. Grants supplemental jurisdiction to all claims that share a common
nucleus of operative fact with the claim that got the case into federal court.
b. 1367(b) Cuts back on that grant of supplemental jurisdiction, but only in certain situations.
i. 1367(b) applies only in diversity cases to the following claims:
a. Claims by plaintifs against parties joined under Rule 14, 19, 20, or 24
b. Claims by Rule 19 plaintifs.
D. Claims asserted by people seeking to intervene as a plaintif under Rule 24:
E. Removal
1. Governed by 1441, 1446, 1447.
a.
Removal is a one-way street. It only goes from state court to federal court.
b. All defendants must agree to removal.
i. Minor exception under 1441(c) A single defendant can remove if there is a separate
and independent federal claim against her.
c. Only defendants may remove. Plaintifs cannot remove.
d. 1441(a) You remove to the federal district embracing the state court where the case
was filed.
e. We remove within 30 days of the case becoming removable.
f. Can remove if the case has federal subject matter jurisdiction.
i. Two Exceptions: THESE 2 EXCEPTIONS APPLY ONLY IN DIVERISTY CASES, NOT
FEDERAL QUESTION
(1)
No removal if any defendant is a citizen of forum.
(2) Cannot remove a diversity case more than one year after the case was filed
in state court.
IV.
Venue
A. Basic Provisions
1. In removal cases, venue is in the district embracing the state court.
2. Local actions must be brought in the district where the land lies.
3. Rules for the transitory case (anything that is not a local action).
a. Plaintif has two choices of where to lay venue:
i. Any district where all defendants reside, or
ii.Any district where a substantial part of the claim arose.
B. Transfer of Venue
1. You can transfer from a state court in one state to a diferent state court in the same state. However,
you cannot go from a state court in one state to a state court in another state because you can only
transfer within the same system. You can go from one federal court to another federal court in a
diferent state through transfer because it is in the same system.
2. Terminology
a. Transferor court The court from which we are transferring.
b. Transferee court The court to which we are transferring.
3. Two Transfer Statutes in the Federal System
a. 1404(a) The transferor court is a proper venue, and we may transfer based upon three
things:
i. Convenience of the parties.
ii.Convenience of the witnesses.
iii.
Interest of justice.
b. 1406(a) Venue in the transferor court is improper. The court may transfer in the
interest of justice or it may dismiss.
C. Forum Non Conveniens
1. This is where the court dismisses the case because there is a more appropriate venue.
2. Transfer is not available because the more appropriate court is in a diferent judicial system.
V. Challenging Forum Selection
A. Special Appearance Doctrine If D wants to challenge personal jurisdiction, she can make a special
appearance, by which D challenges only personal jurisdiction and nothing else. By doing so, D does not
subject herself to jurisdiction.
B. Federal Rules Rule 12 and Waiver
1. Rule 12 When you get sued and receive notice, you have a choice of response. You can answer (a
pleading) or you can make a motion. Rule 12(b) lists seven particular defenses that the defendant
may raise in her answer or by a motion to dismiss.
a. Rule 12(b)(1) Lack of subject matter jurisdiction
b. Rule 12(b)(2) Lack of personal jurisdiction
c. Rule 12(b)(3) Improper venue
d. Rule 12(b)(4) Insufficient process
e. Rule 12(b)(5) Insufficient service of process
f. Rule 12(b)(6) Failure to state a claim
g. Rule 12(b)(7) Failure to join an indispensable party.
2. Defenses 12(b)(2) through (b)(5) must be asserted in the first Rule 12 response or they are waived.
VI.
VII.
B.
C.
D.
VIII.
Joinder
A. Claim Joinder by the Plaintif Rule 18(a) Plaintif can assert any and all claims against the defendant.
B. Claim Joinder by the Defendant.
1. Counterclaim A claim against an opposing party.
a. Rule 13(a)(1) Compulsory counterclaim: arises from the same transaction or occurrence as
the plaintifs claim.
2. Crossclaim Rule 13(g). A claim against a co-party that must arise from the same transaction or
occurrence as the underlying dispute.
C. Proper parties
1. Rule 20(a) Question of who may be joined by co-plaintifs or co-defendants in a single case.
D. Necessary and Indispensable Parties
1. Rule 19 Who must be joined in a pending case. Three tests:
a. Rule 19(a)(1)(A) Without the absentee, can the court accord complete relief among those
who are already joined? If the answer is no, then absentee is necessary.
b. Rule 19(a)(1)(B)(i) The absentees interest might be harmed if she is not joined.
c. Rule 19(a)(1)(B)(ii) Does the absentees interest potentially subject the defendant to
multiple or inconsistent obligations?
2. Rule 19: Is joinder of the absentee feasible?
a. Not feasible
i. Personal Jurisdiction Not feasible if there is no personal jurisdiction.
ii. Subject Matter Jurisdiction Not feasible if it would destroy diversity
jurisdiction.
b. Feasible Join absentee to the case.
3. Decide whether to proceed without the absentee or dismiss the case.
a. Rule 19(b)
E. Impleader (Third-party Practice)
1. Allows defendant to join somebody new (the TPD) because the TPD is or may be liable to the
defendant for all or part of the plaintifs claim.
F. Intervention
1. An absentee seeks to bring herself into a case. It is up to the absentee to decide which side to
come on.
2. Two types of intervention. Must be timely.
a. Rule 24(a)(2) Intervention of Right Satisfied if you can show that the absentees interest
will be harmed if she is not joined and her interest is not adequately represented now.
G. Interpleader
(a) Rule 24(b)(2) Permissive Intervention Absentees claim or defense has at least one question in
common with the pending case.
1. Involves a dispute over property. Somebody holding property (the stakeholder) can force all potential
claimants into a single case.
2. Two types of interpleader:
a.
Rule Interpleader (Rule 22) A diversity of citizenship case.
b. Statutory Interpleader You need one claimant diverse from one other claimant. You do
not need complete diversity.
H. Class Action
1. Initial requirements
a.
Rule 23(a)(1) Too numerous for practicable joinder
b. Rule 23(a)(2) Commonality
c. Rule 23(a)(3) Representatives claims must be those typical of the class.
d. Rule 23(a)(4) Representative will fairly and adequately represent the class.
2. Must fit the case within one of three kinds of class actions
a. Rule 23(b)(1) Prejudice Class Action Where class treatment is necessary to avoid harm
to the class members or to the party opposing the class.
b. Rule 23(b)(2) Party opposing the class acted on grounds that are generally applicable to
the class, and that makes an injunction or declaratory judgment appropriate.
c. Rule 23(b)(3) Damages class
i. Must show that common questions predominate.
ii. The class action is the superior method for resolving this dispute.
3. Notice to the class
a. Rule 23(b)(3) Class representative pays to give individual notice to all members
reasonably identifiable. Must tell class-members various thing, including:
i.
They may opt-out.
ii. They will be bound if the do not opt-out.
iii.
They may enter a separate appearance through counsel if they want.
4. If the court certifies the class, it must define the class and class issues and must appoint class
counsel under Rule 23(g).
5. Every class member is bound by judgment except those who opt out of a 23(b)(3).
6. Settlement or dismissal must be approved by the court.
7. Can seek immediate appeal from the grant or denial of class certification under Rule 23(f).
8. Subject Matter Jurisdiction
a.
For citizenship, look at the representative of the class.
Discovery
A. Required Disclosures
1. Rule 26(a) Parties must produce information at three diferent times in the course of litigation.
a. 26(a)(1) Initial Disclosure
i. Must identify people and documents with discoverable information that you may use
to support your claims or defenses.
ii. Plaintif must give a computation of damages.
iii.
Defending party must tell about insurance that she has for all or part of a claim.
b. 26(a)(2) Experts
c. 26(a)(3) Trial Evidence
B. Discovery Tools
1. Deposition
2. Interrogatories
3. Request to Produce
4. Physical or Mental Examination
5. Request for Admission
C. Scope of Discovery
1. Standard Rule 26(b)(1) Can discover anything relevant to a claim or defense of any party.
2. Things Protected from Discovery:
a. Privileged Material
b. Work Product, unless
i. Substantial Need
ii. Substantial Hardship
Even then, opinion work product is absolutely protected.
D. Discovery Sanctions
1. Rules
a. Rule 37(c)(1) Addresses what happens when a party fails to make one of the required
disclosures.
b. Rule 37(c)(2) Fail to admit something that should have been admitted under Rule 36.
c. Rule 26(c) The one from whom discovery is sought asks the court for a protective order.
2. Sanctions
a. Partial Failure to Comply Can make a motion to compel the answers under Rule 37(a)(2).
Can recover costs, including attorneys fees for bringing motion, if you win on the motion.
b. Total Failure to Comply Rule 37(d) Can get sanctions right away and can recover costs.
i. Striking the pleadings
ii. Disallowing evidence
X.Pre-Trial Adjudication
A. Voluntary Dismissal Rule 41(a) Where the plaintiff wants to dismiss the case.
1. Stipulation of the parties
2. Court order
3. Plaintif may dismiss without prejudice once by serving a notice of dismissal before the
defendant serves her answer or motion for summary judgment.
B. Involuntary Dismissal
1. Failure to Prosecute
2. Failure to Abide by the Federal Rules
3. Failure to Abide by a Court Order
C. Default
1. Rule 55(a) Plaintif must request the entry to default from the clerk of the court when the
defendant has not responded within 20 days after service of process.
D. Rule 12(b)(6) Motion
1. Motion to dismiss for failure to state a claim.
2. The court does not look at evidence. Instead, it looks only at the face of the complaint.
E. Motion for Summary Judgment
1. Court can look at evidence.
2. Standard for granting a Motion for Summary Judgment
a. Moving party must show that there is no genuine issue as to any material fact, and
b. That she is entitled to judgment as a matter of law.
XI. Trial and Related Motions
A. Right to a Jury Trial
1. Seventh Amendment Preserves the right to a jury trial in actions at law, but not at suits at equity.
2. Three Important Issues
a.
We determine the right to a jury trial issue by issue.
b. If an issue of fact underlies both the remedy at law and the remedy at equity, you must
have a jury.
c. Generally, we will try the jury issues first.
B. Selection of a Jury
1. Rule 48 Governs how many jurors there are in a civil case in federal court
a.