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1) Service must comply with the relevant rule (state rule or FRCP 4) and due process (5th
and 14th Amendments).
2) To satisfy due process, the form of notice used must be reasonable in light of the
practicalities and peculiarities of the specific case. (Mullane).
3) The D must be given adequate notice of the suit through proper service of process.
4) A judgment rendered w/o proper notice is invalid, even if there is a valid basis for
jurisdiction.
a. Ex: In Burnham v. Superior Court, there was jurisdiction because the D was in the
state. However, he had to also be SERVED while in the state in order for the suit
to be valid.
5) Two factors: "For service to be proper, it must not only comply with the relevant rule, but
must comport with due process."
a. Relevant rule: State rules vary; federal rules are under FRCP Rule 4.
ii. The mere fact that the D received actual notice of the suit does not suffice
to uphold the validity of service.
6) Failure to serve or improper service can cause a lawsuit to be time-barred, since often the
statute of limitations is tolled only when D is served properly
7) Failure to report to court after receiving notice results in a default judgment against the
absent party.
8) Waiving Service- Rule 4 tries to eliminate issues concerning service by inducing the D to
waive formal service of the summons and complaint.
i. Rule 4(d)(1)- unless D waives service in a timely manner, "the court may
impose on the D…the expenses later incurred in making service."
ii. If D waives service, D does not have to answer complaint until 60 days
9) Service through Mullane (To satisfy due process, the form of notice used must be
reasonable in light of the practicalities and peculiarities of the specific case)
a. Due process requires "notice reasonably calculated, under all the circumstances,
to apprise interest parties of the pendency of the action and afford them an
opportunity to present their objections".
b. Notice by publication doesn't work, but it can be sufficient if there is no other way
or if property was forfeited.
Personal Jurisdiction
a. Long-arm Statute - Does the defendant come within the terms of the applicable
long-arm statute? (states have tailored or due process-type)
b. Minimum Contacts - Does the defendant have "minimum contacts" with the
forum state such that the assertion of jurisdiction would not violate the Due
Process Clause?
d. Relatedness - Does the lawsuit arise out of or related to the defendant's purposeful
contacts with the forum or, if it does not, are the defendant's forum contacts so
extensive that no such relationship is necessary? (specific v. general jurisdiction)
PJ today
1) Minimum contacts:
a. Does the defendant come within the terms of the applicable long-arm statute?
b. Does the defendant have "minimum contacts" with the forum state such that the
assertion of jurisdiction would not violate the Due Process Clause?
iii. Does the lawsuit arise out of or related to the defendant's purposeful
contacts with the forum or, if it does not, are the defendant's forum
contacts so extensive that no such relationship is necessary?
iv. Would the exercise of jurisdiction be unfair and unreasonable, taking into
account the interests of the defendant, the forum state, the plaintiff, and
other states that may have an interest in the matter?
2) Purposeful Availment
b. Foreseeability
c. Stream of Commerce
i. Asahi
d. Effects Test
i. Calder
3. Notes - The Calder effects test will allow personal jurisdiction over
a party whose conduct was expressly aimed at the forum state,
knowing that the harmful effects would be felt primarily there, and
that the defendants would "reasonably anticipate being haled into
court there". The action was directed at CA, and the Ds knew it
would cause an effect there.
ii. Zippo sliding scale- applies the effects test to the internet
3) General v. Specific Jurisdiction- Does the lawsuit arise out of or is it related to D's
purposeful contacts or, if it does not, are D's forum contacts so extensive that no such
relationship is necessary?
a. Specific Jurisdiction
i. This is almost always the case- general jurisdiction is much more difficult
to prove than specific/subject matter jurisdiction.
4) Reasonableness
a. Asahi
a. Shaffer v. Heitner
ii. Court ruled that a state cannot acquire jurisdiction over a nonresident
party's property solely because the property is in the forum state. The
"minimum contacts" test applies.
i. For individuals is the most recent state where they resided with the intent
to remain indefinitely (Mas v. Perry)
ii. For corporations is the state of their incorporation and the state of its
principal place of business ("nerve center is PPOB" or "place of activity"
test, Hertz)
iii. Purpose of Diversity SMJ is the belief that state courts may be biased
toward local defendants
i. Judge has to find it likely that a jury could find damages in the amount of
$75 k
2. 2 P’s may sue 1 D as long as one of the claims is for more than $75
k (they both can’t be less)
2) Foreign Citizens
a. Article III, §2 says that federal courts have jurisdiction over cases between U.S.
citizens and foreign nationals/aliens.
ii. This is true even if the foreigner is domiciled in a U.S. state- you first
must be a citizen of the U.S. before you can be considered a citizen of a
particular state.
iii. Permanent residents are exceptions- they are considered state citizens.
1) Satisfied in any case in which a party seeks to establish a proposition of federal law in
order to prove a claim or defense in the case
a. Mottley
ii. A case only "arises under" federal law if the P relies on federal law as the
source of their right to relief.
iii. The Mottley rule says that courts assess the federal court's subject matter
jurisdiction based solely on the P's complaint. (not possible defenses)
i. From Mottley, the court is required to consider not what the P has pleaded
but what P needed to plead to state their cause of action.
ii. This is to prevent manipulation by Ps; if Ps could make a federal case out
of a state law claim by including unnecessary references to federal law in
their complaints, arising-under jurisdiction could be created by simply
including peripheral or even irrelevant references to federal issues in the
complaint.
iii. By asking not what is in the complaint, but what has to be, the court can
limit the opportunity to manipulate the federal courts' jurisdiction.
Removal
1. If a federal court has SMJ thru diversity or federal question, a defendant can choose to
remove the case from state court to federal court
a. Exception – A defendant sued in state court in his home state cannot remove to
federal court if jurisdiction is based on diversity– even if there is an out of state
co-defendant
b. Reasoning – Defendant should have the option to have the case heard in federal
court just like the plaintiff to prevent being prejudiced
Venue
1) Venue is governed by 28 USC 1391; venue is proper for FQJ and diversity jurisdiction
cases (can be more than one place) in…
i. Any district where a defendant resides, if they reside in the same state
ii. The district where a substantial portion of the events took place
iii. ***FALL BACK PROVISION*** Anywhere you can get PJ over the
defendants, if there is no other district where the suit can be brought
a. Applies when a case is brought in a court where venue is proper, but the judge
believes the case would be better suited in another district
b. The judge can transfer to a court where it could’ve been filed originally (proper
PJ, SMJ, VENUE)
c. Under this statute, the law where the original suit was filed would apply in the
new case
2. 28 U.S.C. 1406 –
d. If the proper venue is another country, then the case should be dismissed for
forum non conveniens
Pleadings
2) Rule 8(a) – short statement about why court has PJ, of P’s claim, and what relief they are
seeking (what law was broken)
b. Fact pleading –
i. Twombly – Complaint must show facts that make it plausible that it could
survive a 12(b)(6) motion
ii. Iqbal – Legal conclusions aren’t given assumption of truth, the facts are,
facts must make the claim plausible enough to survive 12(b)(6) motion
3) Rule 8(b) –
1) Rule 11(a) – Every signed document turned into the court confirms that:
2) Rule 11 (b)
a. It is not being brought for an improper purpose, including to harass or raise a
frivolous claim
i. Sanctions can’t be made against the party for this violation because the
attorney is supposed to do this job
c. The party has made an inquiry, reasonable under the circumstances, before taking
the position being asserted in the pleading or motion
3) Rule 11 (c ) – Sanctions may be placed on the party, law firm, or attorney for violating
rule 11
a. Safe Harbor rule – party making a motion for rule 11 violation must give the other
party 21 day notice
1) Rule 12(a) – the answer must be made within 21 days of being served w/ complaint
2) Rule 12(b) - the following motions must be made in the pre-answer motion or raised in
the answer
5) Rule 12(h)(2) – SMJ, Improper joinder, failure to state a claim are not waived if not
raised at first
1) Rule 15(a) – Complaint can be amended once before the answer is made – Answer
can be amended 21 days after being served
a. If adding an additional charge to the complaint, the charge must relate back to
the original charge
b. If another party is being added after the statute of limitations has run, the
added party must:
ii. Must have had notice or had reason to know but for a mistake they
were the party meant to be charged (Krupski)
Discovery
a. Interrogatories
i. Questions asked to the other party that must be answered under oath
ii. Limited to 25
b. Production of Documents
i. Asking the other party to give you documents relevant to your case
ii. No limit
iii. Other party must give them up even if it hurts their case
c. Depositions
ii. Must be made in good faith & the condition must be disputed
i. Court forces the party to turn the information over or issues sanctions
against the party
1. Must meet with the other party first before issuing a sanction
Scope of Discovery
1) Rule 26(a) – Mandatory disclosures: Must disclose contact information for all witnesses
with discoverable information, copies of all information parties intend to admit as
evidence at trial, computation of damages, insurance agreements that may be used to
satisfy judgments
2) Rule 26(b)(1) – A party may discover any information, not privileged, relevant to a
defense or claim, unless otherwise limited by the court
Summary Judgment
1. Rule 56 provides for SJ motions to be made when a party, before trial, wishes to
challenge the evidentiary sufficiency of the opponent's case.
a. If there is "no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law," the motion will be granted.
d. If the movant carries the burden, the burden shifts to the non-movant to
identify evidence that would allow a reasonable jury to find in his favor.
e. Remember that the burden of production is different depending on
whether the movant would carry the burden of persuasion at trial.
Eerie Doctrine
1) Pre-Erie
2) Swift v. Tyson
i. The RDA refers only to state statutes, not to the common law decisions of
state courts.
ii. In cases where no federal statute or state statute applies, courts do not have
to rely on state common law decisions; they can look to the common law
of any state or even treatises for authority.
b. Problems
i. Federal courts in diversity cases could reach their own decisions about the
proper rule in common law cases, even if those conclusions contradicted
the governing case law of the state in which they sat.
3) Erie
a. Holding
ii. The RDA must be interpreted to require federal courts to apply not only
the state statutes, but also the common law of the state in a diversity case.
b. Early issues:
i. How should a federal court apply state law if there are conflicting state
court decisions about the issue at hand?
1. SCOTUS ruled that district courts should use the "supreme court
predictive" approach; federal judges should try to predict what the
high state court would say.
2. A federal judge should very rarely make the prediction that a state
supreme court case would be overruled.
ii. How should a federal court proceed if there is no precedent at all on the
issue?
1. In the same vein, the court should try to predict what state
appellate courts would say.
iii. Which state's law should a federal court use in diversity cases?
1. Every state has choice-of-law rules to deal with this problem. From
Klaxon, federal diversity courts should use the choice-of-law rules
of the state in which it sits.
2. Thus, a NY federal court should apply whatever state substantive
law the New York state court would apply to the case.
3. This reasoning was based on the fact that Erie mandated that the
case should come out the same way in federal court as it would in
the state court of the state where the federal court sat.
a. Outcome-determinative test
i. The choice of state or federal court in a diversity case should not affect the
outcome of the case.
ii. Thus, if federal practice differs from state practice, the court should
determine whether the case would come out differently if it applied its
own rule. If it would, a federal diversity court should use the state rule
instead.
a. Other policies might outweigh the uniformity policy posited by Erie and York.
b. In cases leading up to Byrd, diversity courts had applied state rules even in
matters having to do with procedure in conducting the litigation under the
outcome-determinative test, but they have constitutional authority to follow a
separate federal practice.
c. The York policy of uniform outcomes must be considered along with other
policies, which might sometimes outweigh the uniformity policy.
i. For example, the division of functions between judge and jury in federal
cases, under the influence of the 7th Amendment, was an important
consideration supporting the use of federal procedure in federal court in
diversity cases.
d. Since the state law was not "bound up with rights and obligations of the parties"
(in which case the federal could would have to defer to it), the Court could
consider "affirmative countervailing considerations."
i. Byrd did not overrule York, it merely said that balancing was necessary in
matters relating to procedure.
6) Hanna v. Plumer
i. Conflicts between state law and federal judicial practices (not a federal
statute or a Federal Rule)
ii. Conflicts between state law and the Federal Rules of Civil Procedure
1. Supplemental Jurisdiction allows claims that could not have entered federal court on their
own to be heard by a federal court if they are part of a case over which the court has
subject matter jurisdiction.
iv. Impleader- Claims by D against a third party who might also be liable
i. SCOTUS explained that federal courts can't hear claims just because they
are within the constitutional scope of Article III as explained by Gibbs;
Congress must authorize them to hear the claims as well, by statute. Even
if allowed to do so, federal courts cannot resolve all claims in the case
unless a federal statute authorizes the federal court to hear the related
claims.
i. The Court ruled that unless Congress had expressly authorized jurisdiction
over the pendent parties, the lack of such an authorization was fatal.
ii. Essentially, Finley was the death knell for pendent party jurisdiction,
because if there were a statute that expressly allowed for jurisdiction then
there would be no need to invoke the doctrine, and without such a statute
the doctrine could not be employed.
iii. The Finley court invited Congress to do something about it. Congress
responded with §1367.
2. If a claim satisfies the Gibbs test, it satisfies the statute and vice
versa.
c. §1367(a) expressly allows the addition of new parties to federal question claims.
i. In diversity cases only, the federal court will not have supplemental
jurisdiction over certain claims by Ps or persons sought to be joined as Ps,
if the plaintiff being added ruins diversity
b. 1367(b) does not apply when the extra parties are brought in by the D.
6. §1367(c) sets out four grounds on which a district court may decline to exercise
supplemental jurisdiction.
b. The claim substantially predominates over the claim or claims over which the
district court has original jurisdiction.
c. The district court has dismissed all claims over which it has original jurisdiction.
7. Joinder
1. Rule 20(a)(1) – Plaintiffs can sue together if their claims arise out of the same transaction
and share a common question of law or fact
2. Rule 20(a)(2) – Plaintiffs can sue multiple defendants if the claims arise out of the same
transaction and share a common question of law or fact
a. Makes sense because allowing the Plaintiffs to sue together helps avoid
inconsistent results from separate lawsuits
3. Rule 18(a) – A plaintiff suing a D can sue him for EVERY claim he has in the same suit
– even if the claim is unrelated
ii. Note – if the claims arise out of the same set of facts/transaction – it must
be raised so it won’t be barred later by res judicata
4. Rule 13 -
c. Rule 13(g) – Cross claim – a claim asserted by one party against a co-party that
arises out of the same transaction
i. Once a proper cross claim is made against a co-party, unrelated claims can
be made against the co-party
ii. Cross claims do not have to be joined in the same law suit – like
permissive claims
5. Rule 14 – Impleading
a. Defendant can bring in a person not yet a party to the suit who may be liable to
the defendant
i. Cannot bring in another person who is liable to the plaintiff only (plaintiff
would’ve sued this D if they wanted to)
ii. Permissive – D’s don’t HAVE to implead somebody – they can bring a
separate action
ii. That interest may, as a practical matter, be impaired if the person is not
allowed to participate in the case, and
i. Request is not timely & would delay the resolution of the case
ii. Or if the court decides it is best not to allow it for whatever reasons
Res Judicata (preclusion)– The idea is that once a judgment has been entered, it is final and the
case cannot be tried again
a. Meaning the original trial was not dismissed for lack of PJ, SMJ, Venue, etc.
3. The claims must be the same in the first and second suits
a. Most jurisdictions define this as the claim arises out of the same
transaction/occurrence – if the claim arises out of the same transaction and
could’ve been brought you are barred from bringing it in another suit
4. The parties in the second action must be the same as those in the first
a. Privity -
1. The idea is that once an issue has been litigated and has been rendered a final judgment –
it cannot be litigated again later
2. Elements
a. The issue to be precluded in the second action must be the same as that litigated in
the first
b. It must have been actually litigated and decided in the first action
c. The decision of the issue in the first action must have been necessary to reach the
judgment rendered in the first action
i. Note – difference between this and res judicata is that this only applies to
issues actually litigated – res judicata can apply to issues that were never
even raised
3. Defensive collateral estoppel – Defendants can estop a P from suing for an issue that was
already decided
4. Offensive Collateral Estoppel – Plaintiffs estop D from raising a defense that failed in a
previous case involving same set of facts
a. Can use this if P could not have joined in the first suit and application would not
be unfair to the defendant (did D have a fair opportunity to litigate in the first
suit?)
c. Non-mutual collateral estoppel – one of the parties in the 2nd suit is different
1. Rule 60 a – If there has been a judgment in a case and it based on a clerical mistake,
oversight or omission
a.