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Civil Procedure

CIVIL PROCEDURE OUTLINE


1) Whether a court has the authority to enter judgment against a particular defendant/property? [Personal Jurisdiction] 2) Whether a court has the authority to hear a particular kind of dispute [Subject Matter Jurisdiction] 3) Are there other limits to where suit can be filed? [Notice, Venue, FNC] 4) Whether other parties can be added to a suit on either side of the case? [Joinder]

PERSONAL JURISDICTION A courts ability to exercise power over a particular defendant or item of property I. STATUTORY - Question #1 Does exercising PJ over the , comply with the States Long Arm Statute? a. Federal Court i. R4(k)(1) 1. Look at the States Long-arm Statute gives Fed court same reach as State court b. State Court i. Apply the States Long-arm Statute 1. CA can exercise PJ up to the full extent of the Constitution II. CONSTITUTIONAL Question #2 Does exercising PJ over the , comply with the Due Process Clause of the 14th Amendment? Prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness a. TRADITIONAL TEST Need PRESENCE and/or CONSENT to obtain PJ Origin of PJ - Pennoyer v. Neff - (resident of state) files suit against (non-resident of state) via constructive notice. H: Court said no PJ over because the was not served in State, nor was he located in the State Note: filed In Personam if would have attached property before suit and filed In Rem, State could have asserted PJ i. PRESENCE physical presence of person/property within the territory 1. In Personam Jurisdiction when you want to obtain a money damages or injunctive relief a. 1) Person in State; and b. 2) Tagged in State - Transient Presence Burnham - (lives in NJ) goes to CA on a 3-day business trip, but stops to visit his kids and Boom! Served for divorce in CA. PJ? H: Court said, physical presence in a State is sufficient for PJ. (This is fair because presence was the

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origin of fairness since the ratification of the 14th amendment, which came out after Pennoyer) 2. In Rem / Quasi In Rem jurisdiction limited to property value a. Property in State b. Attachment before suit c. Constructive notice ok d. In Rem involves suits concerning the property itself. Used when the court cannot get PJ over the person and exercises jurisdiction over their property instead e. Quasi In Rem applies to personal suits against the , where the property is not the source of conflict but is sought as compensation by the . The authority of the court in exercising quasi in rem jurisdiction is limited to a determination of the s interest in the property 3. Both In Personam and In Rem / Quasi In Rem a. Must be there but b. Individuals Domicile Miliken - Where you are domiciled, determines where you are subject to P.J. c. Corporations Presence does not apply d. Intangibles Move (i.e. Debt) Harris - Intangible property (debt) travels with debtor Overturned by Shaffer ii. CONSENT in Pennoyer, the court says that nonresidents who had no property in the State were nevertheless subject to jurisdiction if they had consented to its exercise 1. Before Suit a. 1) Form Selection Clause within a contract - Burger King b. 2) Appointment of an agent for service of process 2. After Suit a. 3) Waiver show up to court and contest the claim(s) waives PJ i. 3. Implied Hess v. Pawlowski - A non-resident drove his car into another State and got into an accident with a resident of the State. H: By him driving into the State, he implicitly agreed to be subject to P.J. because he benefited from the State and its protections, by using the States highways and public services (i.e. the ambulance) Overturned by WWVW EX - Special Appearance show up to court specifically to object exercise of jurisdiction

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iii.

Policy for Formalistic Theory 1. Easy to apply 2. Easy to predict outcomes 3. Reduces conflicts between states

iv.

Policy against 1. Fortuitous assertions of jurisdiction a. i.e. Getting served on an airplane flying over the State

b. MODERN TEST must have MINIMUM CONTACTS with State, while not offending traditional notions of FAIR PLAY AND SUBSTANTIAL JUSTICE i. (1) MINIMUM CONTACTS premised that parties who conduct activities in a state and take advantage of the benefits and protections of the law, accept the risk that those activities may give rise to suit and understand that they would have to return to the state to defend said suit. Intl Shoe v. WA - A shoe companys only presence in the State of WA was through sales reps (agents). H: The court presented the unprecedented minimum contacts requirement. The Shoe Co. was subject to P.J. in that it met the minimum contacts test and overturned the Traditional Test of determining PJ. 1. GENERAL JURISDICTION (incident does not arise from the State) and therefore need: A higher threshold of contacts needed because it is only appropriate if the s activities in the State are so substantial that a would expect to be subject to suit regarding any claim and would suffer no inconvenience Helicopteros , a foreign Corp. that transported people via helicopters crashed and killed people who worked for a Texas Co. H: Court said no PJ over because regular purchases and training of pilots are not enough to meet the contacts necessary for General Jurisdiction. Goodyear A bus accident occurred in Paris, killing Americans, the bus used Goodyear tires (headquartered in Ohio). H: Court said no PJ, because regular sales are not enough to meet the contacts necessary for General Jurisdiction. Note: stream of commerce may be enough for SJ but not for GJ. a. Individuals: i. ii. iii. iv. v. i. Domiciled in State Or Substantial Continuous Systematic (need a lot of these) totality of circumstances Headquartered or Incorporated in State

b. Corporation:

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ii. iii. iv. v. i.

Or Substantial Continuous Systematic (need a lot of these) totality of circumstances Shaffer v. Heitner brought derivative suit (sequestering stock shares) against Greyhound Corps officers and directors (not Greyhound Corp.). H: No PJ, because there was no sufficient contacts with the State to attain GJ. (This case abolished traditional quasi in-rem now must use Modern Test mere property ownership in State, cannot confer GJ)

c. In rem / quasi in rem (under modern test)

2. SPECIFIC JURISDICTION - (incident arises from the State): When an incident directly arises out of or relates to the forum State a. Sporadic b. Casual c. Isolated The minimum contacts (listed above) are ok if -- Purposeful Availment is proven d. PURPOSEFUL AVAILMENT reaches out in order to enjoy the benefits and protections of the laws of the State Hanson - Donner created a trust while living in Penn., it was executed in Delaware, naming a Delaware bank as trustee. Donner later moved to Florida. After her death, there was a dispute about where the probate would be? H: PJ in Delaware, because when trust was created, there was no connection with Florida. And her moving to Florida was not enough (this was merely unilateral activity). McGee - McGee lived in CA. He had a life insurance policy with Co. in Texas. Does CA have PJ? H: Yes, because the Co. entered into a contract with McGee that had a substantial connection to CA (contract was signed in CA, the premiums were mailed from CA, and McGee was a resident when he died in CA) the Insurance Co. purposefully availed to CA by assuming life insurance policy by a CA resident. e. 1) Steam of Commerce a product travels through an extensive chain of distribution before reaching the ultimate consumer i. Purposeful Direction (Targeting / establishing business channels) is enough for PA (OConner) 1. Marketing 2. Designing 3. Advertising 4. Channels

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Asahi was injured in a motorcycle accident in CA when his tire suddenly lost air due to an alleged defect in the tire. The sued the manufacturer (a Taiwanese Co.) and the manufacturer impleaded Asahi (a Japanese Co. who which manufacturer the valve stem assembly) through third-party indemnification. TL court said PJ through SJ. Asahi was aware that their products reached CA but thats it. H: No PJ. Because Asahi did not purposefully avail/direction themselves to CA (does no business, no employees, no advertising, does not solicit business, does not control distribution to CA) + also the reasonable test says no. ii. iii. Expectation and awareness UNKNOWN Ashai (Brennan), WWVW (White) ??? Mere Foreseeability that a product will end up in a State is not enough for PA WWVW - A couple driving from NY to AZ is rear ended in OK and the Audis defect traps them inside (they get severe burns). OK tries for Specific Jurisdiction of Audi dealership and an NY Audi distributor through minimum contacts requirement. H: OK does not have specific jurisdiction because the defendants did not have minimum contacts with OK and mere foreseeability is not enough Rule: you must be able to foreseeable yourself being hailed into court there (this is a bad/ambiguous rule). f. 2) Intentional Tort - is enough for PA i. ii. Expressly aimed and Knows that the brunt of the injury will occur there Keeton - filed for defamation against Hustler magazine in New Hampshire because it was the only State whose statutes of limitations hadnt expired. H: Hustler is subject to jurisdiction because they conduct a part of their general business there and it is sufficient to support jurisdiction when a cause of action arises out of the activity being conducted in that State. Calder - The National Inquirer is written in FL and distributed in CA. Calder filed for defamation against National Inquirer in CA. H: There was P.J. over National Inquirer because it was expressly aimed and the writers knew that the brunt of the injury would be felt by Calder in CA (State where its circulated most). Note: Both Keeton and Calder are very similar. g. 3) Contracts can be enough for PA where the K is between two sophisticated parties a long period of time, and there is a choice of law provision (basically the K needs to be very involved to make the parties contacts enough)

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Burger King (BK) v. Rudz - (Brennan) - s were a BK Franchisee (located in Detroit, Michigan) and entered into a Franchise Contract with BK Corporate (located in Florida). s breached their K with BK and BK brought suit against them in FL (PJ through General Jurisdiction). H: There was PJ. Brennan said the established continuous, systematic, and substantial contacts with FL through the highly involved, 20 year K. He also said there was adequate notice of the suit, and the reasonableness test pointed in favor of the ) Note: Brennan always fights for personal jurisdiction (he always thinks its fair) h. 4) Internet can be enough for PA i. Highly Interactive Yes 1. Clearly doing business 2. Similar to purposeful direction ii. iii. ii. Middle Position Can go either way Passive Webpage No

(2) FAIR PLAY & SUBSTANTIAL JUSTICE factors considered in determining whether exercising PJ is reasonable The Reasonableness Test WWVWs dissent (Brennan) - Also used by Brennan in BK 1. Defendants interest 2. Plaintiffs interest 3. States interest 4. Interstates interest a. Note: This is a balancing act - where do the majority of these factors point b. Note: The reasonable test is the behind the scenes argument that Brennan tries to force against other Justices He favors State Power over Liberty Interest

III. POLICY a. Formalism v. Realism i. ii. Formalism black & white thinking - strict application of the law - Pennoyer Realism makes value judgments, considers everything, makes decision based on fairness (jurisdiction law has trended towards this) Intl Shoe, Shaffer, Burnham, BK b. Federalism (States Boarders) v. Individual Liberty i. ii. i. ii. Federalism focus on the States powers Hanson - (Scalia) Individual Liberty focus on the individuals rights McGee, Dunlop Pro-Business jurisdiction favors businesses Pro-Consumer - jurisdiction favors consumers

c. Pro-Business v. Pro-Consumer

d. Strategy v. Forum Shopping

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i. ii.

Strategy - WWVW - wanted to prevent the case from going to Federal Court Forum Shopping - BK - thought a Florida jury would sympathize more than a jury in Detroit, Michigan

SUBJECT MATTER JURISDICTION the courts authority to hear different types of cases under Article III 2: federal courts are authorized to hear cases between states, between citizens of different states 1. [Diversity], between citizens and aliens, cases involving foreign ministers and consuls, admiralty and maritime cases, cases arising under the federal Constitution and federal law 2. [Federal Question], and a few other narrow categories of suits Pg. 288 SM Jurisdiction (Article III 2) rules book Pg. 346 Diversity Jurisdiction (1332) rules book Policy for SMJ Diversity Avoid potential prejudice/biases from local juries Influence of Local Judges v. Federal judges Remember o o Presumption against Subject Matter Jurisdiction, therefore the burden falls upon the to prove Cannot consent or waive to subject matter jurisdiction Elective nature v. Life tenure (unless impeached)

Federal Question Federal cases should heard by Federal courts

1. DIVERSITY JURISDICTION ALIENAGE between citizens of different states Constitution: Article III 2 the authority of a federal court to hear and determine cases involving citizens of different states, or in which one party is an alien Broad Rules & Interpretation (requires Minimum Diversity only need one be in a different state or country than one ) Statute (Congress): 28 USC 1332 the authority of a federal court to hear and determine cases involving $75,000 or more and in which the parties are citizens of different states, or in which one party is an alien Narrow Rules & Interpretation (requires Complete Diversity need all s to be from a different state or country than all s) COMPLETE DIVERSITY plaintiffs and defendants must be citizens of different states Strawbridge s are all from Mass and s are from Mass, except for 1. H: Must have Complete Diversity (all s and all s from different states) to have diversity of citizenship.

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Time Req. - Diversity of citizenship must be determined at the time suit is filed Policy to provide a federal forum for disputes where state courts might favor home-state litigants - to prevent local biases INDIVIDUALS 1. US Citizens 1332(a)(1) must be both a US citizen and a domiciliary of the state a. Domicile (def.) is the place of a persons true, fixed, permanent home and principal establishment, and to which he/she has the intent to remain indefinitely i. Indefinitely - means do not have definite plans to leave Test for Domicile: Physical Presence and Intent [infer from facts] Drivers license Tax Return Registered to vote If they own property

Mas - s were married (wife Mississippi citizen, husband France citizen) rented an apartment in Louisiana. claimed no diversity because they lived by LSU. H: DJ ok. Citizenship is where you are domiciled. ii. Domicile is more permanent than mere residency iii. Domicile is determined at start of litigation (individuals can on have only one can not be domiciled in different states) iv. Example: A is moving from NY to CA (while moving - driving to new home, gets in accident in NV). Where is she domiciled? A is still domiciled in NY because even the he intends to be domiciled in CA he is did not physically arrive there yet. 2. Aliens 1332(a)(2) alien (citizen of a foreign nation) v. US citizen a. N/A - if person is a citizen of no nation 3. Permanent Resident Citizen (PRC) 1332(a)(4) PRC v. PRC or US citizen (of a different state) CORPORATIONS 1. Corporations 28 U.S.C. 1332(c)(1) a corporation is deemed a citizen in the (corporations are not domiciled): a. State of incorporation; and b. State of its principle place of business i. Total Activity Test: 1. Nerve Center Test when a corp. is widely dispersed where command decisions are made (the brain) is a better determinant

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a. Hertz PPB is where officers/directors direct the company. Predictability is key! 2. Place of Activity Test (Muscle Test) when a corp. has sole operations in one state and executive offices in another this is better a better determinant ii. Olson Co. (Olson) brought suit in federal court against the (City of Winona, in Mississippi). was incorporated in Illinois and said their PPB is in there too (location of corp. headquarters). moved to dismiss on grounds of lack of diversity citizenship saying their PPB is in Mississippi (location of s sole manufacturing plant). H: Court agreed with (see Total Act. Test). - Overturn by Hertz 2. 28 U.S.C. 1332(c)(1) a must allege (state within the filing) the corporations state of incorporation and principle place of business Randazzo was a moron and blew two chances at this H: Case dismissed with prejudice. (with prejudice = case is over, cannot bring again) NON-INCORPORATED BUSINESSES 1. The business is considered a citizen of all states of which its members are citizens (applicable to both general and limited partners) - 28 U.S.C. 1332(c)(1) N/A a. If LLC has members in 50 states can only sue in state court Belleville (Corp.) sued (LLC), alleged s State of Inc. & PPB as Delaware & Illinois, at onset of suit. also alleged their State of Inc./PPB as Missouri. H: Mistakes: #1) Non-incorporations are citizen where their members are citizens #2) was actually incorporated in Illinois, not Missouri. Leads to #3) No diversity jurisdiction under 1332 when / are from same state. Court was pissed! Rule 11 attorney required to corroborate what client says. OTHER SITUATIONS 1. Assignment of Claims - 28 USC 1359 - no jurisdiction of over cases in which a party, by assignment, has been improperly or collusively made or joined to invoke the jurisdiction of such court a. Tort claims non-assignable b. Contract claims assignable i. Collection Agent court would ignore citizenship of assignee and use assignors ii. Assignment with adequate consideration ok 2. Representative Suits - 28 USC 1332(c)(2) court looks at the citizenship of the decedent, minor, or incompetent -- not the representative

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3. If a person moves (and domiciles) to another state to manufacture diversity of citizenship ok if court identifies intent to remain indefinitely 4. EXCEPTIONS: NO SUBJECT MATTER JURISDICTION a. Domestic Relations - divorce, alimony, child custody No i. Tort claims between family members ok b. Probate administration of a decedents estate No i. Tort claims ok c. Policy Reason more suited for state courts (they have always dealt with those types of cases) AMOUNT IN CONTROVERSY amount(s) of claims must be OVER $75k (exclusive of interest and cost of attorney) Will be considered in good faith unless proves to a legal certainty that the amount alleged cannot be met (when the issue is raise must show it is not clear to a legal certainty) Argument by : Ratio of punitive to compensatory damages is excessive Max 5:1 1. Aggregation a. One to One: (1 1 ) can aggregate $ from an infinite # of related or unrelated claims b. Multiple Parties: (P1 & P2 D or P D1 & D2) cannot when claims are separate & distinct (related or unrelated) i. EX: (P D1 & D2) can when claims are common & undivided (only related) --- HYPO #2 ?? 1. Joint and Severable liability ? 2. Partnership ? 2. Equitable Relief (i.e. Injunctive Relief) a. Value (benefit) to b. Cost to of compliance c. Either/Both i. Permissible to add monetary (damages) and non-monetary (equitable relief) claims Policy: 1. This is a method of docket control a. Federal court is not a small claims court, yet not a big business court either b. To cut down the number of diversity citizenship cases filed (this is important because)

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Note: Article III has no controversy limitation 2. FEDERAL QUESTION whether the subject of the suit is federal law? Constitution: Article III 2 the authority of a federal court to hear cases arising-under federal jurisdiction, or which shall be made, under their Authority. an ingredient of the lawsuit Osborne This requirement is probably satisfied in any case where a party seeks to rely on or establish a proposition of federal law ( or ) Statute (Congress): 28 USC 1331 the authority of a federal court to hear cases arising-under federal jurisdiction defined within the [1] Well Pleaded Complaint Rule and [2] Federal Claim or [3] Embedded Federal Issue requirements Purpose of Federal Question: Provide an Article III forum for federally created rights Allow lower federal courts to interpret federal law WELL PLEADED COMPLIANT RULE [1] the federal issue must appear on the face of the compliant with the exceptions of neither a) answers by the (including defenses or counter-claims), nor b) affirmative defenses Louisville s (Motleys) filed breach of K claim against (railroad co.) in federal court for reneging on their lifetime train passes. H: Court brings up that no SMJ exists b/c s claim does not involve federal law; breach of K is a state law matter. Also, s anticipated s defense/answer would involve a federal issue, which is not allowable under the Well Pleaded Complaint Rule. Purpose: This enables jurisdiction to be determined from the outset of a claim 1. FEDERAL CLAIM [2] the basis of the s claims (cause of action) must arise under federal law A federal issue must be a. Substantial (and important issue) b. Necessary to resolve an actual dispute (must have merit, not frivolous) c. Congressionally approved balance between federal and state courts

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2. EMBEDDED FEDERAL ISSUE - a federal court can hear claims recognized under state law that nonetheless turn on substantial questions of federal law an embedded federal issue in a state claim Grable - files suit in state court against to try and get his property back that the IRS seized and sold to the , claiming he did not receive adequate notice. removes case to Federal District Court b/c presented a federal question. H: Court said this is ok even though the original action was brought to within state court because the (3) requirements were met. i. This settled the Holmes Theory v. Smith Theory (the suit must arise under the law that creates the cause of action v. inclusion of cases involving an embedded federal issue) 1. Advantages of Grable Approach (traditional v. post Grable decision) a. Allows federal court to hear federal law b. Legislative gridlock c. Rare anyway d. More flexible more individualized justice/fairness 2. Disadvantages of Grable Approach (traditional v. post Grable decision) a. Difficult to predict be it is subjective substantial question of federal law more efficient b. If Congress wanted certain claims to be heard by a federal court, they would have enacted a legislative solution/provision regarding the particular federal law (Policy matter) b. Declaratory Judgment Act - pg. 216-17 asking the courts to declare the rights of the parties c. One party asks the court: Is it ok to stop performing before I actually stop, would this breach the K? i. What is the underlying claim? ii. another claim Exclusive Jurisdiction Federal courts only have jurisdiction Concurrent Jurisdiction Federal courts and state courts both have jurisdiction Yes Well-Pleaded, No No Well-Pleaded d. Pass-through (preemptive action) a procedural mechanism where you can bring

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3. REMOVAL JURISDICTION the exception to the rule that the controls the court (hypos: pg. 233-35) 28 USC 1441: (a) only authorizes removal of state court actions of which the district courts of the US have original jurisdiction must be a federal law question The basis of removal must appear as part of the s claim (Well-pleaded Rule) Purpose: both parties should have to option to choose federal court for cases within federal jurisdiction EX - (b) provides that a diversity case is only removable if none of the parties in interest joined and served as s is a citizen of the State in which action is brought must have complete diversity between the parties - Hometown Rule Purpose: there is no need to protect the from local prejudice (c) may remove an entire case, so long as there is a separate and independent (completely unrelated) federal question claim against him only available for federal question [P1 (non-removable claim) + P2 (removable claim) D] ok Purpose: otherwise the would be forced to defend two separate actions (two separate trials) Remember Can only remove from state to federal court (not vice versa) Limited to civil actions Right of removal is limited to the (a counter-claim does not convert the ) cannot attempt to conceal legitimate ground of federal law or reduce claim amount to keep out of federal court (avoiding basis on face of claim) FILING FOR REMOVAL 1446 Notice of Removal - must file a notice of removal within 30 days after receiving the complaint or of a copy of an amended claim (1 year absolute deadline for Diversity Jurisdiction cases) i. must also give a written notice of removal to the and file a copy of the notice with the state court ii. If the original claim was removable but not removed, the amended claim cannot be removed unless the amendment sets forth a new basis of federal jurisdiction New basis for removal cannot be based on an involuntary action (i.e. a summary judgment for one of the s, which dismisses her from the suit, cannot be ground to bring about diversity jurisdiction) iii. All s must agree to remove 1447 Motion to Remand - If a wishes to challenge the removal, must file a motion to remand

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iv. The burden of proving the support for removal rests on the Waiving Removal Waiving right to remove ( - or object): - takes defensive action in state court (counter-claim or discovery) fails to make a timely objection to removal If jurisdiction is doubtful or was removed improperly remanded to state court

Noble files suit in state court against 1st regarding a federal action, this did not remove case to federal court. files claim to add a new . The new tries to remove to Fed. Court H: and court says no (see notice of removal exemption). Removal v. Transfer Removal can only be to the federal district court within the state of action, thus, removal only partially displaces the s choice of forum Transfer: 28 USC 1404(a) - allows for geological transfer from on district court within the federal system to another in a different state or district 4. SUPPLEMENTAL JURISDICTION Multiple claims (D P) files original claim (federal question claim) & attaches a state law claim If the two claims are sufficiently related (came from one event) federal court ok If the two claims are not sufficiently related (came from different events) not ok 1. Distinction: claim not case a. Article III addresses jurisdiction over certain types of cases (not claims) NOTICE / VENUE / TRANSFER / FORUM NON CONVENIENS 1. NOTICE Notice of Process = summons + copy of complaint o This is necessary to file a suit (plus you need to file a proof of service an affidavit)

a. Constitutional Requirements [must not violate the Due Process Clause of 14th Amend.] Note: this is a relative standard (does not depend on classification of case in rem/in personam) See Slides i. Reasonably Calculated - notice must be reasonably calculated but actual notice is not required (neither evidence that the actually received the notice) 1. Notice of suit 2. Time to respond

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ii. If no alternative method to serve is reasonably possible or practical (cost-efficient), then other types of notice (like publication) are acceptable 1. Publication is a supplemental method of giving notice Mullane (guardian of a trusts beneficiary) objects that notice (regarding a accounting issue) by the (trustee/investment company) was inadequate to afford due process under the 14th Amend. The s address/location was not known by the , so the notified via newspaper. H: Court said this was ok, however, this it is not ok to give notice this way if the address/location is/was known. 2. Policy: Formalism v. Realism (reasonable/fairness) b. Statutory Requirement i. Federal Court Rule 4: Summons ii. Rule 4(a)(1): Contents - a summons must 1. (a) name the court and the parties 2. (b) be directed to the defendant 3. (c) state the name and address of the plaintiffs attorney or if unrepresented of the plaintiff 4. (d) state the time within the defendant must appear and defend 5. (e) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint 6. (f) be signed by the clerk 7. (g) bear the courts seal iii. Rule 4(b): Issuance On or after the complaint is filed, the plaintiff may present a summons to the clerk for signature and seal iv. Rule 4(c) Service 1. (1) In General a summons must be served with a copy of the complaint 2. (2) By Whom any person who is at least 18 years old and not a party may serve a summons and complaint -- (generally would not want to serve for your own client an attorney would not want to be cross-examined during own trial) 3. (3) By a Marshall at the request of the plaintiff, the court may order that service be made by a US Marshall 4. (4) Must serve copy of summons and complaint w/in 120 days of filing complaint v. Rule 4(d) Waiver Service 1. (1) Requesting a Waiver - an individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The may notify such a that an action has commenced and request that the waive service of summons. The notice and request must:

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a. be in writing and be addressed i. to the individual ; or ii. for a subject to service under Rule 4(h), to an officer managing or agent b. name the court where the complain was filed c. be accompanied by a copy of the complaint d. inform the of the consequences of waiving and not waiving e. state the date when the request is sent f. give the a reasonable time of at least 30 days after the request was sent or at least 60 days if sent to the outside the US to return the waiver g. be sent by first-class mail or other reliable means 2. (2) Failure to Waive if a within the US fails, without good cause, to sign and return a waiver requested by a located within the US, the court must impose on the a. the expenses later incurred in making service; and b. the reasonable expenses, including attorneys fees of any motion required to collect those service expenses Note: Benefit of signing waiver gets more time to answer vi. Rule 4(e) Serving within the US 1. (1) Follow state law for serving a summons; or 2. (2) Doing any of the following: a. (a) Delivering a copy of the summons and of the complaint to the individual personally (not a minor or incompetent) b. (b) Leave a copy of each at the individuals dwelling or usual place of abode with someone of suitable age and discretion who resides there c. (c) Delivering a copy of each to an agent authorized by appointment or by law to receive service of process National Dev. Co (luxury apartment bldg.) serves (Saudi billionaire) by giving notice to his maid at his NY apartment while he was staying there. The claimed he resided in Saudi Arabia even though he had many residences. H: Service is ok if it meets Rule 4(d)(1). Dwelling house or usual place of abode sufficient indicia of permanence vii. Rule 4(f) Serving in a Foreign Country 1. (1) By any internationally agreed means of service that is reasonably calculated to give notice

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2. (2) If not available, then another method that is reasonably calculated viii. All subsequent papers (after summons) can be served via mail ix. Policy 2. VENUE where within a court system a case can be brought / can be waived a. STATUTORY LAW ONLY i. 28 USC 1391 Federal Venue Statute ii. (a) Diversity Cases 1. (1) a judicial district where any [resides], if all s reside in the same state 2. (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 subject of the action is situated] 3. (3) a judicial district in which [any is subject to personal jurisdiction at the time the action is commenced], if there is no district in which the action may otherwise be brought FALLBACK PROVISION iii. (b) All Other Cases 1. (1) a judicial district where any [resides], if all s reside in the same state 2. (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 subject of the action is situated] 3. (3) a judicial district in which [any may be found], if there is no district in which the action may otherwise be brought FALLBACK PROVISION iv. IMPORTANT POINTS from (a) & (b) 1. Venue Statute addresses judicial districts, not states (unlike PJ) 2. VENUE & PJ are privileges which can be waived a. Must have PJ over the at the time the action was commenced, therefore a waiving PJ does not waive venue under the FALLBACK PROVISION 3. [Residence] (a)(1) & (b)(1) where the is domiciled 4. [a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is subject of the action is situated] (a)(2) & (b)(2) allows for multiple districts a. i.e. torts claim where the product was manufactured and where the injury occurred 5. [found] (b)(3) most likely means the district where a is served with process there 6. (a)(3) & (b)(3) could apply if a action arouse abroad, between parties from the US a. i.e. A (CA) injured in Mexico by B (AZ) and C (NV)

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v. (c) Residence of Corporate Defendants 1. Corporations defendants [resides] in any judicial district in which it is subject to personal jurisdiction, however, if multiple judicial districts in a state, the PJ test must be met in that specific district (PJ over a corp. in one district does not equal PJ in another treat the districts as separate states) vi. (d) Aliens In rules book vii. IMPORTANT POINTS from (c) 1. Does not apply to corporate plaintiffs

viii. SUMMARY of VENUE (1391) 1. (a)(1)/(b)(1) RESIDENCE - district where resides, if all s in same state a. Individuals i. Citizenship Domicile b. (c) Corporations i. District where they are subject to PJ 1. Note: treat district as own state 2. (a)(2)/(b)(2) SUBSTANTIAL PART OF EVENT/OMISSIONS or WHERE THE PROPERTY LOCATED 3. (a)(3)/(b)(3) FALLBACK PROVISION - (a)(3) PJ over the , (b)(3) where can be found 4. (d) ALIENS any district Bates ix. LOCAL ACTIONS involve land and include disputes: 1. Where real property is the basis of jurisdiction (in rem) 2. Where seeks a remedy in or to realty a. i.e. quiet title, ejectment, foreclosure, enforcement/removal of a lien 3. Where claims for damages for injury to land a. i.e. trespass x. Policy to assure a relationship between the underlying events and the place where the case is being tried 3. TRANSFER - See Slides a. Civil Cases in State Court

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Mark Cianciulli Civil Procedure

i. Permitted to transfer if is unlikely to get a fair trial (transfer only allowed within the state) 1. Cannot transfer cases to another state b. Civil Actions in Federal Court i. 28 USC 1404(a) Proper Venue (pg. 362) 1. Permits transfer to any district where suit might have been brought a. This must have been the case regardless of consent (waiver) b. Consideration by courts whether to transfer: i. 1) Convenience of the parties ii. 2) Convenience of the witnesses iii. 3) The interest of justice c. Choice of Law i. Apply the choice of law of the transferors state

ii. 28 USC 1406(a) /1631 Improper Venue 1. Permits transfer (regardless if court had PJ over the ) a. Policy allows for expeditious adjudication b. No consideration by courts whether to transfer i. Either dismiss or (if in the interest of justice) transfer c. Choice of Law i. Apply the choice of law of the transferees state d. Distinction: Choice of Law (v. Choice of forum in BK) iii. Forum Selection Clause c. Multidistrict Litigation must be common factual and legal issues i. 28 USC 1407 when civil actions involving one or more common questions of fact are pending in different districts, such actions may ne transferred to any district for coordinate or consolidated pretrial proceedings d. When can a lawsuit be brought? i. PJ 1. Dismiss 2. Transfer ii. Venue 1. Dismiss 2. Transfer iii. SMJ (if filing in Fed. Court) 1. Dismiss (Remand)

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Mark Cianciulli Civil Procedure

iv. Forum Non-convenience 1. Dismiss 2. Transfer e. 1406: Test (also make test for 1404) i. Is there a problem? (Is it improper venue?) 1. Dismissal without prejudice ii. Interests of justice iii. could/might have been brought 1. PJ 2. Proper Venue 4. FORUM NON CONVENIENS permits a court having jurisdiction over an action to refuse to exercise its jurisdiction when the litigation could be brought more appropriately in another forum Policy To ensure that the trial is convenient Giving deference to a foreign sovereign; or Protecting US companies Formalistic v. Realism (like PJ argument) ask Parrish

i. Can only be applied when the (transferee) venue is proper in the first instance ii. Requires that there be an alternative forum in which the suit can be prosecuted 1. Cannot be invoked to the state where the is a resident iii. BALANCING TEST to determine Forum Non Conveniens: 1. s choice has great deference (respect), unless foreign forum (not home) a. Foreign skeptical b. Home ok 2. Private Interests a. Availability of witnesses (whether witnesses are subject to compulsory process whether subject to subpoena) b. 3. Public Interests a. Administrative difficulties b. S Note: If even do not dismiss 1404 does not hold as much weight (more likely to transfer in 1404 than dismiss under Forum Non Conveniences) Piper (executor for decedents of a plane crash in Scotland Scottish citizens) filed suit against s (plane and propeller manufacturers) in CA state court. s removed to Fed court, then transferred to

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Mark Cianciulli Civil Procedure

Penn. Fed court. and then moved to dismiss on the grounds of forum non conveniens. H: Court dismissed b/c Scotland was the most appropriate/convenient place for the trial. Suit filed in CA state court o o o o Based on Piper having General Jurisdiction (via their planes landing in CA everyday) Based on Diversity Jurisdiction Piper: Based on 1404(a) [proper] Apply Penn Law (applying CA choice of law rule) Apply Scottish Law (applying Penn choice of law rule) Hartzell: Based on 1631 [improper] Suit removed to Central District of CA Suit transferred to Middle District of Penn

iv. Choice of Law 1. Issue of substantive law in foreign country v. Substantive Changes in Law 1. Some (even little) remedy available in a foreign court do not consider 2. No remedy or clearly inadequate remedy in a foreign court consider this JOINDER & SUPPLEMENTAL JURISDICTION SKELETON OUTLINE 1. JOINDER a. CLAIMS i. OPEN SEASON RULE [Rule 18] ii. COUNTER CLAIMS [Rule 13 a/b] 1. PERMISSIVE (can bring dont arise from same T/O) 2. COMPULSORY (must be brought arise from same T/O) iii. CROSS CLAIMS [Rule 13 g] b. PARTIES i. PERMISSIVE [Rule 20] 1. Same T/O 2. Common of law or fact ii. IMPLEADER [Rule 14] when a brings in a third party (who believes is to blame) 1. DERIVATIVE CLAIM a. CONTRIBUTION b. INDEMNITY

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Mark Cianciulli Civil Procedure

1. JOINDER addresses which s one may sue and which potential s he can sue with a. Rule 17 and ; Capacity; Public Officers i. (a) Real Party in Interest 1. (1) Designation In General an action must be prosecuted in the name of the real party in interest. 2. (3) Joinder of the Real Party in Interest the court may not dismiss an action for failure to prosecute in the nature of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest until to ratify, join, or be substituted in the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest b. Rule 18 Joinder of Claims a party seeking relief from an opposing party may join with his original claim any additional claims he has against that opposing party (broadest of all Joinder Rules) i. (a) In General. A party asserting a claim, counterclaim, cross-claim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party ii. (b) Joinder of Contingent Claims. A party may join two claims even though on of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties relative substantive rights. In particular, a may state a claim for money and a claim to set aside conveyance that is fraudulent as to that , without first obtaining judgment for the money. c. SUPPLEMENTAL JURISDICTION allows a federal curt to hear claims which are not supported by any of the independent bases of subject matter jurisdiction i. Supp JDX = (a-b) c [Power] [Discretion] ii. Article III: A case or controversy (not a claim) can be heard by a Federal Court when it arises under federal law iii. 1367 TEST 1. 1367 (a) - Are the Claims Related? a. Common Nucleus of Fact (means the claims arose from the same event) 2. 1367 (b) Diversity Exception: (only evaluate if anchor claim (free standing claim) is solely based on diversity) bared if, a. The anchor claim satisfies diversity requirements b. By c. Against parties joined via Rule 14, 19, 20, 24 3. 1367 (c) Discretion: the district courts may decline to exercise supplemental jurisdiction over a claim if (evaluate if anchor claim is diversity or federal question) 4 Considerations 1. (1) The claim raises a novel or complex issue of State law

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Mark Cianciulli Civil Procedure

2. (2) The claim substantially predominates over the claim or claims over which the district court has original jurisdiction 3. (3) In exceptional circumstances, there are other compelling reasons for declining jurisdiction 4. (4) The period of limitations for any claim assert under (a), and for any other claim in the same claim in the same action that is voluntarily dismiss Gibbs files suit against (miners union). One claim is a federal claim and the other is a state claim. I: Whether a Federal court can hear the case when the state claim (if no diversity juris). H: Court says yes b/c the relationship between the state and federal claims was so close that they ought to be litigated at the same trial. Action in Gibbs Gibbs (Fed Question Claim) Union; and Gibbs (State Law Claim) Union 2. PARTY JOINDER a. Rule 20 PERMISSIVE JOINDER of Parties i. (a) Persons Who May Join or Be Joined 1. (1) Plaintiffs. Persons may join in one action as s if: a. (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and b. (B) any question of law or fact common to all s will arise in the action 2. (2) Defendants. Persons may be joined in one action as s if: a. (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and b. (B) any question of law or fact common to all s will arise in the action ii. Same Transaction/Occurrence a. People (difference witnesses) b. Timing c. Place iii. Common law or fact a. Who caused the injury? (Series of events leading to one injury) b. Joinder is not required if the two criteria are met, it is the plaintiffs choice Swan one of the s (Dorothy) was the victim of two separate auto crashes. She claimed that the injuries suffered in the first crash were aggravated by the second crash. She tried to join the s from

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Mark Cianciulli Civil Procedure

each accident into one trial. The TL did not allow. H: The appeals court reversed the decision because the injury arose out of series of transactions and a question of fact to all s would arise in the action (the alleged negligence of both s contributed to the s injury). Suit #1 D+C (sues) B+S+M --- Suit #1 changed to: D+C M Suit #2 A (sues) B+S --- Suit #2 changed to: D+C+A B+S c. Rule 21 Sever d. Rules 42 Consolidation e. Reasons a might not want to join all available s: i. Jurisdictional problems ii. Litigation strategy f. Reason a might want to join all available s: i. Avoid the s from whipsawing the pointing the blame to someone not in the trial this happens at both trials and the ends up with nothing g. Reason a might not want to join all available s: i. Recover more ii. The (s) might have limited resources iii. Dont want to add a who would not help your cause h. Reason a might want to join all available s: i. i. Policy for i. Joining cases is more efficient than trying multiple separate issues relating to the same issue ii. Avoids inconsistent results (one successful and another is not in separate cases involving the same action) j. Policy against i. The litigation becomes more complex ii. May limit the s choice of forum k. Making an argument for a rule: Legislative language, Legislative intent, Policy reasons 3. COUNTERCLAIMS & CROSSCLAIMS a. COUNTERCLAIM i. Compulsory if the defending partys counterclaim arises from the same transaction or occurrence as the claim against him ii. Permissive if the defending partys counterclaim does not arise from the same transaction or occurrence as the claim against him b. CROSSCLAIM a claim asserted by one party against a co-party ( against the other ) 4. Approach to Joinder a. Can you join?

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Mark Cianciulli Civil Procedure

i. Claims 18, 13(a)(b), 13(g) ii. Rules 14, 20 b. Does the court have SMJ? i. Original Jurisdiction (Fed/Diversity?) ii. Supplemental Jurisdiction? 5.

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