Class 27

Litigation Terms: -Plaintiff: the person bringing the suit -Defendant: person the suit is being brought upon

10/8/2011 4:28:00 PM

-Appellate: whoever wasnt satisfied in the original case (person who lost in lower court) (PETITIONER) -Apelle: person who was satisfied with the judgment (won the case in lower court) (RESPONDENT)

Jurisdiction: -Where (in which court) can a case be filed. -Sharing of power between state and Federal. -10th Amendment: restrains federal government from interfering with state courts. -Sister states cannot interfere with each other. -Two types a court must have to properly adjudicate: 1. Subject Matter: in order for a court to hear a particular claim, that court must have jurisdiction over the subject matter of the lawsuit. - Focuses on the subject the lawsuit is about. 2. Personal: in order for a court to hear a particular claim, the court must have jurisdiction over the parties in the lawsuit. Focuses on the defendant. By bringing lawsuit to a state, they have to agree to be trialed in that court. - Venue: deals with where in that particular state can the lawsuit be brought. - 11 Circuit Courts: * Divided into districts (bigger states have more)

* Trial, appeal and state* (Types of courts) * Federal system can have circuits. In each circuit you have federal district courts.

Federal Courts: - Constitutional Limitations: - Section 1: sets up and limits judicial power of federal courts. Judicial power vested in Supreme Court. Judicial power should extend to all cases. - Section 2: sets up power of federal courts. -Section 13.31 and 13.32= important statutes.

Personal Jurisdiction: - Jurisdiction over the defendant, we need it over all the parties in the lawsuit.
- Due Process Clause of 14 Amendment: restrict state courts.
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* No state should be able to take away rights of life, liberty and property of law. * Interpreted to mean the non-resident clause protects non- residents of the state. Cannot haul a defendant in to court without jurisdiction. - Due Process Clause of 5th Amendment: restrict federal courts. * Authority of federal courts limited to federal courts. * No person should be deprived of life, liberty or property without due process of the law. - Article 4 of Constitution: (full fait and credit clause) * Each state has to respect the rules of other states.

* Requires that one state recognizes and enforces judgments of another state. (State is only required to recognize and enforce the judgments if the state rendering the judgment has jurisdiction).

Jurisdiction of Property: - If a piece of property is in a state, the state has the jurisdiction over the property. - Types: - In Rem Jurisdiction: Court has the power to adjudicate a persons rights in respect of the property. No jurisdiction over person, only over persons interest in the property. - Quasi In Rem: Substance of lawsuit has nothing to do with the property. Property satisfies the judgment. Nature is usually based on a breach of contract. - In Personam: personal jurisdiction. Jurisdiction over the person. Focuses on the defendant.

Case: Pennoyer v Neff

Caption: P- Pennoyer, D- Neff, Court- Supreme Court of Illinois, JusticeField. - Personal jurisdiction over state residence. - Jurisdiction over persons in the state who were physically served while in state, or persons who made appearance in lawsuit. - State Sovereignty: jurisdiction over property within the state, but there are certain guidelines and processes that need to be followed. - Went against 14th amend.

- Neff sued Pennoyer to get land back that was seized after he failed to pay back a lawyer. Land WAS NOT ATTACHED at the time of the lawsuit, so they did not have the right to seize it. - Also he was not served while he was in state. He was served via newspaper ad. - Land went back to Neff.

Case: International Shoe v Washington:

Caption: P- International Shoe, D- Washington, C-Supreme Court, JStone. - International Shoe is a Delaware corporation, having its principal place of business in St. Louis. Carried on business with several states other than Washington. - Employees in Washington set up showrooms featuring products. -P insists that activities within the state were not sufficient to confer jurisdiction. -Court found that there was enough to prove personal jurisdiction over the state enabling the due process clause. - ** 2 PART TEST FOR IN PERSONAN JURISDICTION** - Minimum Contacts: D must have minimum contacts with state in order for that state to exercise personal jurisdiction. (Court looks at the quality and nature of the contacts with the state). - Fairness: Court looks at whether granting personal jurisdiction will be fair play and reasonable. Must not offend traditional justice.

Personal Jurisdiction: -Specific Jurisdiction: when Ds activities in a state are the basis for the lawsuit, jurisdiction over D exists for the specific claim in question and not other claims. * Test * 2 Part Test from International Shoe: 1. Minimum Contacts 2. Fairness (exercising jurisdiction, traditional notions of fair play). - Ps claim must arise out of Ds contacts with the state.

-General Jurisdiction: describes a situation with the cause of actions arises from dealings entirely distinct from Ds activities within the state. * Test * - If the Ds contacts with the state are substantial enough, cases can be brought against the D in that state, even if the case is unrelated to the Ds activities in that state.

Statutes: -Long arm statutes: set up to have jurisdiction over a non-resident. Subject them to authority of the state.

Case: McGee v International Life

Insurance

Facts: McGees son took out life insurance in California. McGee (the mother) sued in California. She served International Life by mail in Texas. International life declined to appear in court. McGee obtains default judgment. She brings it to Texas to collect. International claims California has no judgment. -Contract was delivered in California. -Premiums were mailed in California. -McGee (the son) resided in California. -Defendants: predecessor nor International are from California. No offices there, no contacts. Never conducted or solicited business in California. - In terms of fairness, the court is looking at the States fairness and POV. -The life insurance company had notice and time to prepare for the suit to bring to CA. -Established beyond a question: Foreign states authority to exercise jurisdiction over a non-resident defendant in law suits resulting from the non-resident defendants foreign directed activities.

Case: Hanson v Denckla

- Mrs. Donner established a trust, which was funded primarily by traded stocks. -She created the trust when she lived in PA, but the trust was created in Delaware, with a Delaware bank as a trustee. -If Florida has jurisdiction, two daughters win everything, and third receives nothing. - If Florida does not have jurisdiction, all three daughters share everything equally.

- Florida court lacked jurisdiction. - Court determined that it does not have enough contacts in Florida. -Unilateral Activity: actions of Mrs. Donner when she moved from PA to FL. - Not enough to say the D has contacts with FL. -It is essential in each case that there is some act by which the D purposefully avails itself of the privilege of conducting activities within the forum state. -Contacts are essential and indispensible to the forum state. -Minimum contacts=purposeful availment.

Case: Shaffer v Heitner

-P is a non-resident of Delaware and owner of one share of stock in Greyhound Corporation, a business incorporated under the laws of Delaware with its principal place of business in Phoenix. -P filed a shareholders derivative suit in the Court of Chancery, in which he named as Ds 28 present or former officers or directors of one or both of the corporations. - 21 defendants had their property seized. They responded by entering a special appearance for the purpose of moving to quash service of process. -P tried to attach Greyhound shares to Ds as personal property. -Quasi in rem: property is not in question. -Unlikely directors had a lot of contacts in Delaware. -Delaware has a special law in which stocks are attached. -Trying to get jurisdiction over officers using property.

-Quasi in rem: we dont care about minimum contacts. -Supreme Court Ruling: NO JURISDICTION OVER THE OFFICERS. -We should require the contacts. -Quasi in rem test: Bright line rule-A judicial rule that helps resolve ambiguous issues by setting a basic standard that clarifies the ambiguity and establishes a simple response.

Case: World Wide Volkswagen v Woodson

- Harry and Kay Robinson bought a new Audi from Seaway Volkswagen in Massena,NY. -Passed through Oklahoma and a car struck their Audi, causing a fire, which severely burned Kay Robinson and her two children. - Trial court ruled that they had jurisdiction over the Ds. -World Wide entered special appearances, claiming that if OK exercised jurisdiction over them, it would offend the limitations on the States jurisdiction imposed by the Due Process Clause of the 14th Amendment. -2 Part test: -Minimum Contacts: D did not purposefully avail themselves to the state. Unilateral activity - Fairness: not fair to World Wide -Supreme Court ruled that its not clear if they did business in OK. -Forseeability NOT a sufficient benchmark for personal jurisdiction.

Case: Asahi Metal Industry v Superior Court

- Driver was riding the motorcycle on the highway, lost control collided with tractor, wife killed. - Cause was sudden loss of air and an explosion in the rear tire of the motorcycle. -Sued the manufacturer. -Manufacturer sued Asahi. -Original driver and manufacturer settled. -Shin (manufacturer) suing Asahi, for the money he had to pay to driver. -Asahis argument: our valves go to Taiwan not California. - STATUTES (LONG ARM): 1. Enumerated: miss certain statutes of a resident over a nonresident. 2. (Non-Enumerated) California: exercises jurisdiction of any business. No list of certain circumstances. Only one step analysis. Constitutional analysis. - Tires ended up in Cali because this is a stream of commerece case. Asahi didnt send the products to Cali, he did not purposely avail himself to Cali. - Asahi did not purposefully avail himself to Cali. Not fair to try him there. -Case between 2 international companies why hear them in the US court? -For Personal Jurisdiction: -Potential burden on D. -Ps interests -Forum states interests in adjudicating action in the state.

Case: Burger King v Rudezwicz

- Rudezewicz went into business with MacShara. - D from Michigan. -BK headquarters in Miami. - Contracts and problems negotiated with headquarters in Miami. -BK was sued in court in Michigan. - How to analyze personal jurisdiction: 1. Statute: Long arm statute 2. Constitutional Test: depends on what type of jurisdiction we are taking about. - Jumps to constitutional analysis: * General Jurisdiction *: whether or no the Ds contracts are substantial with the forum state. * Specific Jurisdiction *: figure if Ps claims arises out of Ds contacts with the state. 3. Fairness: (Is it fair to D) -Ds interests - Ps interests - States interests 4. Quasi in rem: Property is attached. Property not the problem in the case. Minimum contacts and fairness. -Applicable in this case: jurisdiction over any person who breaches any contract in the state of Florida, by failing to perform acts that the contracts requires to be performed in the State of FL.

- Constitutional Test: Specific Jurisdiction * Forseeability: entered into a contract with a FL company, could have forseen that any problem would be brought to a Florida court. *Purposefully avail: you had fair warning. Forseeability: Random fortuitous contacts with forum state not enough to render personal jurisdiction. Unilateral activity of another party or 3rd person: not enough to render jurisdiction. The actions by the defendant, himself, must create a connection with the forum state. o Ex: a def who engages in activity in forum state by entering into a contract (avail yourself to benefits of the forum state). Court giving us factors to use when analyzing fairness clause: Burden of D traveling to forum state Interest in forum state adjudicating Obtaining the most efficient resolution of controversies. o Where the witnesses are located o Where is it more efficient. Consider shared interests in the states involved in furthering fundamental substantive social policies: do you have a particular policy Plaintiffs interests D purposefully availed himself to the state of FL.

Case: Pavlovich v Superior Court

- DVD CCA, a company with its principal place of business in CA, acquired the rights to the CCS technology and became the sole licensing entity for the technology. - P founded LiVid, its goal was to improve video and DVD support for Linux. - Ps goal was to defeat the CSS technology and enable the decryption and copying of DVDs containing motion pictures.

- P posed DeCSS, which he knew was derived from CSS algorithms. - P claimed Cali had no jurisdiction over him. -P did not purposely avail himself to the benefits of Cali. -EFFECTS TEST: state can exercise jurisdiction over individual defendants based on the effects that their out of state conduct actually had on the forum state seeking jurisdiction. * Focus on the actions that the D has on another state. The effect can be enough to render personal jurisdiction. -SLIDING SCALE ANALYSIS: one end is situations where you do business on the internet (Amazon), on the opposite end are cases where people post info on the website (blog) and in the middle where you exchange info but nothing is for sale. - In this case, website is where something is posted, nothing is for sale. - Court concluded, no purposeful direction towards Cali. -Only contact was the posting of the website.

Case: Perkins v Benguet:

- P sued in Ohio, although that she is not a resident because the president was from Ohio and did some business there.-Ohio was the only state that had substantial enough contacts. -Directors business in Ohio. - Are the Ds contacts with the state seeking jurisdiction, continuous and systematic and substantial enough??? - Remember: there is a high standard for exercise of general jurisdiction. The D benefits from the forum state, not enough for general jurisdiction.

There needs to be substantial, continuing and overwhelming contacts with the forum state in order for general jurisdiction to exist. -D did business in Ohio during the war. - Had many contacts in the state.

Case: Helicopteros Nacionales de Colombia v Hall

- D is a corporation with its principal place of business in Bogot. - 4 US citizens were among those who lost their lives in a crash in one of Ds helicopters. -Victims were employed by Consorico, a Peruvian company which was a joint venture formed by a Texas company to enable them to enter a deal to construct a Peruvian oil pipeline. - Does state of Texas have jurisdiction? -Other 2 Ds were Texas companies. - Sent people to train in Texas, did business in Texas, bought 80% of their fleets in Texas. -They dont have an agent in Texas. -No offices in Texas. - Look at contacts with the state, argue that they are systematic and continuous.

Case: Burnham v Superior Court

 P filed for desertion in NJ If he files for that in NJ, he wouldnt have to pay alimony. The suit does not come out of his actions in the state of CA. No specific jurisdiction. o In CA visiting his children. o 2part international shoe test must be satisfied. Citing Shaffer case. o CA courts concludes personal jurisdiction. Dont need to apply the 2 part test of international shoe. New life to Pennoyer. Minimum contacts substituted for presence in the state and vice versa. Well do it this way cause we always have. Scallia believes the constitution enshrines the motion. o Answer to question: what did they do back in the time of Pennoyer. o We dont need minimum contacts when presence is there. o Says Shaffer does not apply. That is a quasi in rem case. Brennan believes we need to apply the minimum contacts test to this case. o There isnt that much of a burden in the state CA. Scalia: what is going to be enough for counting benefits. Whats enough to purposely avail. o Purposely avail: you need minimum contacts o Tagging somebody in the state: you just need to serve them while there.

 Main point: case that deals with transient presence (tagging). Somebody that is in state for a short, quick period of time and they are served in state. o Pennoyer is still alive. o Being served while in the state is enough for personal jurisdiction. Brennan: follow language with Shaffer case. All state jurisdictions should satisfy the two-part international shoe test. All the Justices agree that personal jurisdiction would be proper. Justice Stevens : this case is unnecessarily broad. We all agreed that there is personal jurisdiction. We dont need to get into history. Handle this case the same way you would handle Ashai.

Case: Sandy Lane - If you are in Federal Court: the first prong is to look at the state long arm
statute. - This long arm statue reminds us of the one from California. We go right to the Constitutional analysis. - General jurisdiction cases like helicopteros and perkins - Ps claim must be derived from the Ds contacts with the state. - They are discussing both jurisdictions in this case. - Exam purposed argue both. - P has burden of proof to prove the jurisdiction to the court. produce sufficient facts. - Needs to

- General Jurisdiction: o CONTINIOIUS AND SYSTEMATIC o SUBSTANTIAL o MINIMUM CONTACTS o They had general jurisdiction: the company mailed newsletters and other stuff to them. They mailed 865 newsletters to others in PA. Reps that visited PA numerous times for Trade Shows. - Cite the national paintball case. Coming for trade shows enough - D played no role organizing trade shows. - Newsletters= targeted to specific clientele. They sought information about the resort. - Information listed in catalog is not enough to support continuous and systematic contacts with the state of PA. - P argued that Sandy Lanes website was interactive. - The 1-800 number not enough for jurisdiction. Anybody can call this number - Moved to District Court in NY - reps in NY were not employees for Sandy Lane. - P asking court to reconsider the argument again. - Manifest injustice - Court says a motion to reconsider cannot be a request to rethink what they already decided. - Court erred in judgment to transfer to NY. - Efficiency Principal: requires a case should not be transferred to a forum where jurisdiction is not proper. -Look at jurisdiction of the forum that the court is about to transfer the case to.

-NY has an enumerated statute. Subject to jurisdiction in the State. - Long arm statute isnt satisfied, they dont have agents conducting business in the state. - D asking court to reconsider the move to NY. THEY have to prove that they dont have enough to satisfy jurisdiction. -Only contacts with NY=the marketing firm. --- Contacts dont arise to the level of continuous and systematic - No general jurisdiction over Sandy Lane - 3 Part Test of Specific: - Purposefully directed its activities at the forum - Litigation must arise out of or relate to at least one of those activities. - The exercise of jurisdiction otherwise comports with fair play and substantial justice - After the 2002 visit, it was not enough to show that they reached and purposefully availed. -For the 2003 visit: sandy lane reached out and contacted the oconnors for a spa visit. To figure out if prong is satisfied: UTILIZE FOR EXAM PURPOSES * If Ds contacts with state, proximate (legal) because of Ps injury. Ds conduct must give birth to Ps injury. * But-for test: requires but for causation. Ps claim would not have arisen in absence of D.

* Look for substantial connection or discernible relationship between the Ps claim and the Ds actions in the state. * Is there a close enough relationship with Ps claim and Ds action, to make this fair. * Specific Jurisdiction: with each purposeful contact by an out-ofstate resident, the forum states laws will extend certain benefits and impose certain obligations. * If it wasnt for the resort reaching out to the Ps to come to the spa, there wouldnt be an injury. * Injury directly related to mailings and phone calls

 Fair Play: o Burden on the D. o Evidence and witnesses are in Barbados. o Asahi is the only case to ever show that it is unfair (Supreme Court ruled) o When minimum contacts exist, due process demands no more than a reasonable forum. State of PA has interest b/c their citizens have not been compensated. o Court holds that Sandy Lane case can be heard in PA, because of specific jurisdiction. o

Case: Goodyear v Brown

- 2 boys from the US were in France with the rest of their soccer team. -Traveling on a bus to the airport, there was an accident, caused by a defective tire made in Turkey. -Goodyear made the tire. -Goodyear is a subsidiary of the US. -Boys family brought suit to the US. - Claimed North Carolina would have jurisdiction. - Company claimed there would be coercive power there. -Ps claim has nothing to do with Ds contacts. - General jurisdictionImplied Consent: international Shoe. Out of state D has contacts in stat

 Non-resident motorist statutes: provide that a non resident motorist who enters the state and uses the states highways and roads, will be deemed as impliedly consent to courts exercise of personal jurisdiction, only to the extent that the claim by P arises out of Ds use of roads and highways o Hess v Pilowski Sale of securities: 1935 decision Dorothy v Goodman, US Supreme court applied doctrine of applied consent to reach a non resident D, who sold corporate securities within the state, assuming that the lawsuit itself arose out of the sale of those securities. Certain activities after action given: certain activities are divided by the P or D after the lawsuit may be deemed to constitute applied consent to the courts exercise of jurisdiction. o If you do certain things or fail to, a court can argue that you impliedly consented to jurisdiction in a state. Waiver of consent by failure to object to personal jurisdiction: if a D fails to raise any available objections to the courts personal jurisdiction in a timely manner the D will be deemed to have waived his objections to personal jurisdiction and therefore will have impliedly consented to the courts jurisdiction. Timeline is a certain number of days, count those days to see when the D consented. Ds general appearance in lawsuit: when a lawsuit is filed against a D. Can appear in the state to object to personal jurisdiction, you file special appearance, however the general appearance if you come to state and come to court, you are filing answer, submitting evidence and bringing counter claims ( you are not objecting to personal jurisdiction). D who wants to come to court, whose only purpose is to object to personal jurisdiction=SPECIAL APPEARANCE, should not start raising defenses or raising counter claims (if you do that, court will state you are making a general appearance).

 Non-resident Ps and counter claims: applies to P. A non-resident P who files a lawsuit impliedly consents to personal jurisdiction in the state if the D files a counterclaim against the P. EX: you have a P, thats from NY, D from FL. P wants to sue in GA, based on contacts in the state of GA. P files claim against D in GA, D doesnt contest there is personal jurisdiction. D files counterclaim against P. Car accident in GA, D doesnt file personal Juris. D files counterclaim in relation to Ps claim. P files claim that D injured her, D files counterclaim against P saying she injured her. D now becomes P and vice versa. GA court has jurisdiction over new P, P impliedly consented to personal jurisdiction in GA. Expressed Consent: Come to court in your answer- D concedes that there is personal jurisdiction. D responds that there is Personal Jurisdiction Appointment of in state agent: as a condition of doing business in a state, most states require that a corporation, appoints an agent in state for processes. Contractual forum selection clauses: parties may contractually consent to have their disputes litigated in a particular forum (state) through the use of forum selection clauses. Parties agree this is the most convenient forum.

o EX: contract will say In the event there is a disputeany such dispute shall be heard in the state of Florida Cognovit clauses: generally included in loan agreements. Debtor consents to personal jurisdiction in so if there is a dispute between debtor and creditor and the creditor wants to sue in particular state, Debtor cant contest jurisdiction.

o Depending on terms of contract. Party assigns rights to contracts. Creditor can decide to assign debt to another agency. Assignment may give rights to new creditor. Sometimes the second creditor cant go after the debtor because something went wrong with the first creditor.

Case: Carnival Cruise Lines v Shute

-Ps through a travel agent, purchased passage for a 7-day cruise on Ds ship. -Ps paid fare to agent who forwarded payment to Ds headquarters. -Contract said if there was any problem that arises, they should be litigated in a Florida Court. -P injured when she slipped on a deck mat during a guided tour of the ship. -P filed suit in Washington, claiming D was negligent. -Federal Law governs enforceability of the forum-selection clause. -Supreme Court holds the clause. - Eliminates confusion on where to bring the suit. -Cruise ticket was take it or leave it. Due Process Clause: requires notice, notice of the lawsuit, must be reasonably calculated to give the person time to respond.

Two Step Process: Determine whether a rule (federal rule of civ pro) or statute prescribes a method for giving notice and opportunity to be heard (SERVICE OF PROCESS). Must assess whether or not the rule or statute as applied in the particular case meets the requirements of due process. (CONSITITUTIONAL ANALYSIS, MULLANE CASE)

Service of Process: P must generate a complaint, once created the attorney files with the appropriate court, the one that has subject matter jurisdiction. The D must now be served with a copy of the complaint. Give D notice of the law suit. Begins with the issue of a summons, done automatically when P files complaint. Specific rules in the manner of how you serve the D. D must receive the summons and the complaint

Federal Rules: 4E: main rule. Gives us the rules for serving individual defendants who are within the US. (Not for corporations) 4F: gives us rules for service of process over individuals who are in a foreign country (outside the US) 4G: sets out the rules if the D in the case is a minor or incompetent. 4H: gives you the rules for how you serve a corporation, partnership or any type of association. Service over Individuals: 4E2: provides 3 methods for serving Personal Service: service on the person individually. The service person directly hands the complaint and summons. Substitute Service: service at the individuals dwelling or usual place of abode, leaving the process papers with someone of suitable age, who actually resides at the home.

Service on an Agent: service on an agent that is authorized by law or appointed by the agent to receive service for them, or if the law requires that the service needs to be served to an agent. 4E1: allows a federal court to incorporate state law methods for service. States have different rules to serve the D. 4D: permits the D to waive service of process. Once it has been waived, the argument goes, that the P does not have to satisfy the service of process rules.

Case: Mullane v Central Hanover Bank and Trust

-Central Hanover wanted to distrbute a judicial settlement of accounts.

-Beneficiaries were sent a mailing, when you invested in the trust you, were sent notice at that point.

-At the time of the notice being received, it was not enough to tell you that your trustee is settling.

-Did not include the name of potential beneficiaries.

-Under Pennoyer: we get the concept, constructive notice, notice via publication, in an in rem setting that would be enough. -NY State implicates Due Process: 14th Amend=deprivation of property. Issue is how are the beneficiaries being deprived of money. -Notice must be reasonably calculated under all circumstances to notify the defendant of all the action, and afford the D the opportunity to respond. Notice is a 2 Step Process: 1. Determine whether a rule or statute, how should P serve D? Did P comply with the rule or statute? 2. Constitutional Test: assess whether the rule or statute applied in specific case meets requirements of due process. Notice must be reasonably calculated under all circumstance to notify D of the lawsuit and to give D opportunity to be heard. Need Constitutional and Statutory Authority: Statute: long arm statutes. -Enumerated: lists a number of scenarios in which a court can have jurisdiction over D. -Non-enumerated: state and US constitution Rule 4(K)(2): The federal long armed statute: -Under this rule, personal jurisdiction is possible over federal claims (federal question claims) if a non-resident D has insufficient contacts to be amendable to service under the long armed statue of any state, but if the D has sufficient nationwide contacts to satisfy the Due Process requirements of the 5th Amendment, the federal court can exercise personal jurisdiction.

Case: Gibbons v Brown:

-All parties injured in a car accident

-Gibbons is suing Brown for injuries. -2 years later Brown turns around and sues Gibbons for injuries. -Mrs.Brown was not in the original lawsuit -Legal principal: P, by bringing an action, subjects herself to the jurisdiction of the court and with respect to subsequent lawful orders entered regarding the same subject matter of that action. Form of applied consent. -Florida Statute: D who is engaged in substantial and not isolated activity within this state, whether such activity is wholly intrastate or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity. -Browns argument: by bringing prior suit, Gibbons HAS submitted herself to jurisdiction. -2 Pronged Test: (international Shoe) 1.Sufficient facts to bring D within the coverage of the long-arm statute. 2. Move on to international shoe (bare min) -Minimum contacts HOLDING: litigation not related to previous case. Cant prove substantial contact to the state of Florida. Florida will have personal jurisdiction if D had substantial and NOT isolated contacts with the state.

Venue: Personal Jurisdiction: tells you which state you will be in. -Simply a statutory requirement. Not constitutional issue. -All venue does is tell you which particular court in the state to bring a lawsuit. -Federal Venue Rules: section 13.91 * 2 Categories * 1.Describes cases where subject matter jurisdiction is available:

A. Judicial district where any D resides if all Ds reside in the same state. B. A judicial district in which a substantial part of the events or admissions giving rise to the claim occurred or a substantial part of the events or omissions giving rise to the claim C. A judicial district in which any D 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. 2. Describes cases where subject matter jurisdiction is based on federal question (determined by 13.91 B): Provides a venue will be appropriate: A. In a judicial district where any D resides, if all the Ds reside in the same state or B. A judicial district in which a substantial part of the events or admissions giving rise to the claim occurred or a substantial part of the events or omissions giving rise to the claim or C. Judicial district in which any D may be found, if there is no district in which the action may be otherwise brought. To figure out which rule applies: -Figure out what type of case you are dealing with. -Corporation: you have to look at where the corp is subject to personal jurisdiction.

Dee-K v Heveafil Sdn Bhd:

-2 Ps, 2 NC corps -Claiming there is price fixing: Anti-trust case

-Venue case -*Clayton Act*: world wide service. They were property served. Must meet standard in Mullane. Each must be independently satisfied. - Can be sued in any district, because of the alien defendant. 1391 D. -To find out where American Ds to be sued, 1391 B.

2 Venue Statutes that Permit Challenge of Venue: -1406 (a) -1404 (a) -D can file a rule 12(B)(3) motion: -Motion arguing Ps choice of venue is improper or D could simply reject the venue in his answer if thats the case, 1406(A). -Transfer of venue 1404(A): Ps conduct is property, trying to get a more convenient venue. -If D fails to timely object Ps choice of venue, D will have waived its right to object. -Venue can only be effected within the same court system. -Sued in NY, can only transfer within the same district. Does not have the power to transfer to FL. -Party seeking the transfer has the burden to show that the case should be transferred. -1404(A): A district court may transfer any civil action to any other district or division where it might have been brought. Ps choice in forum is proper. -1406(A): District court of a district in which is filed a case laying venue is the wrong division or district shall dismiss, or if it be in the same interest of justice, transfer such case to any district or division in which it could have been brought. Ps venue is not proper

If in federal court, can transfer in any federal court Forum of non-convenience: -1404 (A): Ps choice of forum, no choice of dismissal. -A court can dismiss a case because it is inconvenient to the parties. -Cannot transfer -Forum was proper but transforor court does not have the power to transfer. -Ex: case filed in State of Alabama. Alabama state court said it was more convenient in state of Florida. They dont have the authority to transfer the case. * Can dismiss the case under Forum of Non-Convenience, and allow the P to the file in FL. * Case in NY, but court feels it would be more appropriate in Bolivia, they dismiss and allow the P to file in Bolivia.

Case: Piper v Reyno:

- A small airplane crashed in Scotland. -People in plane were Scottish. -Scottish law firm hires a California Law Firtm -Secretary from Cali firm=reps for P -Propeller manufacture (Ohio) -Airplane manufacture (Penn) -Actual Airplane owned (England) -P files suit in Cali -Cali state court initially, Federal Court of Cali, -1404(A): D tries to transfer to Federal Court of PA.

-Court grants motion. We are now in Fed Court of PA. -File for forum of non-convenience. To get case dismissed. * to get in another state, court has to dismiss claim, but make sure D waives objections to personal jurisdiction *.

Subject Matter Jurisdiction: -DEF: Power of court to hear the subject matter of a lawsuit. -Article 3 of Constitution: sec 2, Judicial power is expressly limited to only certain types of cases. - 11 Categories: 2 we focus on * Diversity * Federal Question -Need statutory authorization from congress -2 Statutes: * Section 1331, 1332, of the US code. Deals with diversity and federal question. - Subject matter a requirement even if you are in state court. Each state has their own laws, and each state will tell you the subject matter jur over the claim. Federal Question (1331): -Matters involving federal law -Arises from the constitution -Cases under which arise under federal law. Involve the US constitution or a federal statute. Or federal treaties (the US entered into with some other international body). -IS NOT exclusive to federal court: unless congress says these kinds of cases can be heard in federal court, they can be heard in federal court AND state court.

* cases like copyright and patent (heard in federal courts).

Case: Louisville and Nashville Railroad v Mottley

-P and his wife were injured while traveling on the Louisville Nashville railroad. -after parties come to agreement, congress comes to a law that they will no longer grant free transportation (used as bribes). -P no longer got free rides, filed claim in federal court. - Looking for specific performance: not looking for money, they want company to comply with the contract. -Claim of deprivation of 5th Amendment: federal law. -Deprivation of property, due process. -Second argument: arises out of federal law, because this arises out of the federal statue that prevents. -Court saying point P is making (5th Amend), simply responds to Ps defenses. Anticipate responses. * Really a breach of contract claim * Trying to settle a breach of contract claim with a federal claim. * P participating Ds defense. -Not performing cause fed. -Well pleaded complaint rule. Well Pleaded Complaint Rule: in order to invoke federal question subject matter jurisdiction under 1331 in US Code, Ps claim must arise out of federal law: - In determining if Ps claim arises under federal law: the court must only look at Ps complaint, and not to the Ds ascertations of defenses or the Ds filing of counterclaims against the P or answer. Court looks solely at Ps complaint.

- In addition, court is going to look at the well pleaded portions of Ps complaint

Diversity Jurisdiction: -Article 3 of Constitution -1332 -District courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 exclusive of interest and costs and is between (amount in controversy requirement). -To satisfy: 1. Must be citizens of different states. 2. Citizens of a state and citizens or subjects of a foreign state 3. Citizens of different states and in which citizen or subjects or a foreign state are additional parties; and EX: Citizen of Cali and a citizen of Mexico sues a citizen from NY and citizen from Japan. 4. A foreign state, defined in section 1603(a) of this title, as P and citizens of a state or of different States (American States) - 1332 (a)(1): Requires complete diversity. Citizens of different state. -NO P may be from the same state as any D; however Ps and Ds do not need to be diverse among themselves. Every P must be diverse citizenship from every D, but parties from same side of dispute can be from the same state. Citizenship: -Individuals: tied to parties domicile. * Persons fixed place of abode, coupled with intention to remain in that abode. *Only have 1 domicile.

* A person can have more than one residence. - Alien Residents: someone who has a green card * Not US citizens * Perm resident status *Deemed to be citizens of the state in which they are domiciled. - Corporations: 1332(c)(1) *Dual Citizenship * Deemed citizen of: -State in which it is incorporated - State in which corporation has its principal place of business. -Partnerships: not viewed as single legal entity for purposes of establishing diversity *Where a partnership is involved, citizenship of each member or general and limited partnership must be established when establishing diversity. -For legal reps of aceedents or infants or incompetents: for diversity purposes you are deemed to be a citizen of the same state as the infant or incompetent person.

Case: Hawkins v Masters Farms, Inc:

-Ps are representatives of his estate from Missouri. -Accident occurred in Troy, Kansas. -D from Kansas. - P filed suit in federal court, P claimed there was diversity. -D argued no diversity. Dismissed for lack of subject matter jurisdiction. -1332(c)(2): legal rep of state, should be deemed citizen of decedents state. -You determine citizenship of individual where they are domiciled.

-Court holds that decedent was a citizen of Kansas. Dismissed since all parties from the same state. -Can bring case to state court.

Case: Render v Sanders

-P alleged he was a US citizen residing in France. -Ds are residents of NY -P alleged there was diversity because he was a foreign D. -P has relations with the state of California. -P claims he was domiciled in CA, law license in CA, Drivers License in CA * 1332(a)(2): US Citizens v Foreign Citizens -Court does not have enough facts to show that hes domiciled in California. For diversity purposes must shoe that California is where he INTENDS to remain.

Suits between Foreigners: -US citizen has to be involved in the lawsuit in some capacity. -Suits between foreign nationals are not permitted. Alien resident must be heard in state court not federal court. -One of the parties from another country who is not a US citizen but has achieved perm alien resident (green card)

Case: Saadeh v Farouki

-D from Jordan, perm resident. P (Greece) -P sues in federal court and claims there is diversity jurisdiction.

-During the lawsuit D became a citizen -P claimed the statute meant there is diversity between an alien and perm resident. -Court says there are two ways to incorporate language: can mean 2 things: -Diversity of citizenship does not exist between two parties. No diversity between Perm alien of state and a citizen of state a. -Diversity brought by one alien to a perm resident. -If there is a P, a US citizen from state A, there will be no diversity between a perm alien residing in the same state. -Relevant=citizenship of D at the time the lawsuit was brought. -Cant have two aliens in court

Case: Hertz Co v Friend:

-Decide whether it should be hear in federal or state court -Look at principal place of business -Tests to determine if its a federal case. -P trying to defeat the diversity jurisdiction. Every P must be diverse from every D. -District court said D lacked diversity jurisdiction. -Supreme Court: Test * Nerve Center Test: principal place of business=high level officers direct control. Nerve center will be found at headquarters.

SUPPLEMENTAL JURISDICTION: -Supplemental jurisdiction is never available to get the original case into federal court. -Only becomes available for additional claims.

-P must assert at least one original claim that meets either federal question or diversity, then supplemental jurisdiction may be used for additional claims. -Supplemental jurisdiction not needed if there is an independent basis for subject matter jurisdiction over the claim. Issue becomes relevant when: * P has filed claim that satisfies some original basis for federal subject matter jurisdiction (violation of civil rights). In addition to that claim P may be suing D for state law claim (State constitutional rights). *State constitutional issue not a federal problem. * Diversity cannot be satisfied; supplemental may come in to permit federal court to hear the claim. * Federal Court: to hear each claim, fed court must have jurisdiction. \ -1367 (a): tells when court can exercise supplemental jurisdiction. -If claims which do not have an independent basis for subject matter jurisdiction (by themselves, dont qualify for diversity) related to or arise from same transaction as original claim, which has subject matter, court can exercise subject matter jurisdiction. (You have to have a claim that meets subject matter jurisdiction). -1367(c): Lists # of scenarios in which district court may decline to exercise supplemental jurisdiction even if the claims satisfy the tests of 1367(a). 4 categories. -1367(b): a limit to the supplemental jurisdiction rules, stating in federal actions which are based solely on diversity, if Ps claims gets to federal court, the fed court may not exercise supplemental jurisdiction over claims by Ps against parties who are joined to the lawsuit via rules, 14, 19, 20, or 24 (joiner rules) if doing so would violate requirements of diversity jurisdiction. -One of these parties will defeat diversity -Restricting claims by Ps not claims by Ds. Supplemental Jurisdiction: -Not available to get original claim into federal court, need independent basis to get into federal court (diversity or federal question)

-2 Types of Subject Matter: -Diversity -Federal Question

Case: In re Ameriquest Mortgage Co

-P, Skanes suing Ameriquest Mortgage co/Homestead (Trevino) because she claims she was misled because they appraised the home higher and that would have meant she would have to take out a bigger loan. -Did this so mortgage could make a bigger profit. - P filed first claim under federal rule, other two counts are state law fraud claims. -Court restating standard from 1367(a): * Court already has jurisdiction over one claim, federal court will also have supplemental jurisdiction over state claim that has subject matter jurisdiction. *1367(c): even if federal district court decides they have supplemental jurisdiction (satisfy requirements of 1367(a)), court can still determine not to exercise supplemental jurisdiction if your case falls into any of the 4 categories in 1367(c): 1. The claim raises a novel or complex issue of state law. 2. Claim substantially predominates over the claim or claims over which the district court has original jurisdiction. 3. The district court has dismissed all claims over which it has original jurisdiction. 4. In exceptional circumstances there are other compelling reasons for declining jurisdiction. *Loose factual connection will be enough to be supplemental jurisdiction if they may be sufficient to cover supplemental jurisdiction, so long as those facts are both common and operative. *1367(c)(1): not novel and complex

* 1367(c)(2): cant tell if state law prevails over federal *(c)(3): TILA claims, must dismiss the claim that satisfies federal question or diversity, did not dismiss the Ps TILA claims. *(c)(4): Trevino (Ds) have not provided any exceptional circumstances to show why they should not decline supplemental jurisdiction. -1367(a): P really tied the federal and state claims together. State about federal fraud and federal is also somewhat connected to fraud. *Cannot dismiss the state law claim, meets requirements of 1367(a).

Szendrey-Ramos v First Bancorp:

-P fired from job, her claims are: Title 7 of federal employment act, and also a number of claims under Puerto Rico Law. -Other claims dont have independent basis over other claims connected. -Issue: Puerto Ricos ethic for attorneys different that American Bar Association rules and regulations. Cannon 21 novel and complex issue. Falls into 1367(c)(1). State law claims predominate over federal claims (1367 (c)(2)). -Court says state law claims predominate over federal law claims - Facts needed to prove state law claims that need to prove federal claims are different. -No supplemental jurisdiction, because state law claims need to be heard over Puerto Rico.

Removal: ability of D to move or shift a case that P originally filed in state court to a federal district court. Only civil actions in which federal district court has original subject matter jurisdiction may move to federal court. Rules: * Right to remove case from state court to federal court is a Ds right only.

* In order for D to remove case to federal court, that case must satisfy the requirement of federal subject matter jurisdiction, so that case which D wants to remove, must be either federal question or satisfy diversity. Removal: ability of D to remove a case that was initially filed in state court to federal court. Right of the D. A P does not have a right of removal. Statutory basis 14-41 14-41 A: provides that any civil action brought in state court may be removed by D or Ds. If there is more than one D in a lawsuit, all Ds must agree to removal. Removal is not permissible if one D has not agreed with removal. In order for D to actually remove case from state to federal court, the case must actually satisfy subject matter jurisdiction requirements. There is no reverse removal right. Removal is a procedure that is only available to state court Ds to remove a case from state court to federal court system. Does not work in reverse. D who is in federal court cannot decide to remove a case under the removal statute to state court. 14-42-14-44: sets up removal power for specific defendants in specific type of cases. Federal Question Removal: 14-41 (b)- provides if the Ds basis for removal is that the case is within the federal courts federal question jurisdiction the case is going to be removable to federal court without reference to the citizenship of the parties in the litigation. IF state court P has possible federal claim and chooses not to assert it, the D cannot attempt to remove the case by relying on the unasserted federal claim. Essence of federal question (what is contained in Ps complaint). Diversity Removal: 14-41 (b) (last sentence) provides in cases where basis for courts subject matter jurisdiction is solely on diversity grounds, a D cannot remove a case if any of the Ds in the lawsuit is a citizen of the forum state. This limitation does not apply in federal question case. Ex: P is from NY suing 2 Ds. P from NY. D1 from Cali, D2 from PA. P from NY suing in PA state court. D trying to remove on basis for diversity. Because D2 is from forum state cannot remove the case. Really there to protect out of state Ds.

14-46 (b): provides that no case can be removed on the basis of diversity of citizenship, more than one year after the case was filed in state court. 14-41 (d) 14-42: just know that they are there.

Timing of Removal: a d must file a notice of removal within the shorter of two possible time periods (14-46 (b)) Timeframe Within 30 days of receiving a copy of the Ps state court complaint. Or within 30 days after receiving the summons. Whichever is shorter.

Actions not Removable: 14-45 of statute 4 Categories: D cannot remove to federal court Actions against a railroad or trustees of a railroad Actions against a common carrier to recover less than $10,000. Actions based on state workers compensation claims. Civil action in state court under the violence against women act.

Challenging Removal: 14-47 (c): gives procedure to get around removal. The former state court P who opposes the removal must seek to have the case remanded by the federal district court and the P files a petition (motion) for remand and motion for remand must be filed by P within 30 days after the D has filed his notice of removal.

P sues D in state court, D wants to remove to federal court, D files notice of removal (within 30 days of summons or complaint) in federal district court and if P does not want that, within 30 days of notice of removal, P files notion for remand in state court.

Case: Caterpillar Inc v Lewis:

-P from Kentucky, D incorporated in Del and Ill. Other D from Kentucky. -Liberty Mutual from Mass, intervened in the lawsuit. -Caterpillar wanted to remove from state to federal. -D2 settled the lawsuit with P. -Caterpillar said everybody has diversity. -Other P did not settle with D2, so no diversity. -DIVERSITY SHOULD BE PRESENT AT THE TIME OF THE LAWSUIT.

Erie: Choice of Law

-Once you are in court, and all preliminary questions have been handled, what law will apply. -Erie=vertical choice of law problem. P and D are citizens of different state, P suing using diversity, what law should federal court apply to the action (Vertical choice of law issue). -Federal Law v State Law. -Horizontal Choice of Law: deciding which law applies between two different states that are equal political entities. Which state law should apply? -Federal question cases arise under federal law, statute or treaty.

-RULES OF DECISION ACT (sect. 1652): enacted in 1789, the laws of several states, except where the constitution or treaties of the US or acts of congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the US in cases where they apply. - If its not federal question we should apply state law

Case: Swift v Tyson:

-Diversity of citizenship case, brought into federal court in NY. -NY state courts clearly adhered to traditional rule that discharged debt was not consideration. -Supreme Court held that federal courts sitting in diversity need not follow NY precedent on this issue. -Supreme court=this issue is laws of several states, only included statutes and constitutions and not state cases. -Erie overrules that decision: * Do not have to follow state common law. Law is only what comes from state statute or state constitution.

Case: Erie Railroad v Tompkins:

-Tompkins was walking along the railroad tracks and the train came along, the door was open, knocking Tompkins under the train, severing his arm. -Applicable state law: He was a trespass, only thing the railroad liable for is wonton negligence. -According to Swift v Tyson: not obliged to follow state law. -Fed law said another thing.

-Procedural Posture: found in favor of Tompkins. Swift as still law, Fed courts dont need to apply law that is generated in state courts. -Reasons why Swift was wrong: (main reasons) 1. Incorrect interpretation of RDA (Rule of Decision Act): act was to make sure federal courts exercise jurisdiction. 2. Swift was unconstitutional: took away states power. Put federal court above states. -No federal general common law. Law of the states exist. -Constitution requires that federal courts apply state statutes, state constitutional law and state common law.

Case: Guaranty Trust v York:

-Fine tunes Erie. -Breach of fiduciary claims are usually equitable claims. -Fed courts usually have discretion. -NY law saw that this could not be brought because of statute of limitations. -Federal court not bound by statute of limitations in fiduciary claims. -P argues: this is procedural law (statute of limitations), Erie and RDA is substantive law, federal law only applies to substantive. *Reed said we should not talk about constitutionality in these cases. *Holding from Erie does not apply=non substantive case. -Court=federal courts sitting in diversity, must follow state law. In contrast to remedies (The form or mode of enforcing the right). *Remedies=form or mode of enforcing rights. Federal courts can follow own rules.

-Those are going to be considered procedural rules, even in diversity cases. -Court focuses on whether or not the rule will determine the outcome of the case. OUTCOME DETERMINATIVE TEST: 1. Is what you are dealing with a substantive right or form or method of enforcing that right. 2. Even if you determine that the right issue is a form or method in enforcing that right, is it outcome determinant? Ex: state law permits P to breach a fiduciary claim. However state law says you need to serve the fiduciary in a particular manner (serve in person). Service does not give you a right to sue the fiduciary. Analyze: Is it diversity View fact pattern? State v Fed, determine whether or not there is a conflict. Determine which law will apply Go over the 2 part Guaranty Trust Case. If former method: is it outcome determinant.

Chart cases: ruling of Erie and Guaranty Trust

Case: Byrd v Blue Ridge Rural Electric Cooperative

P sued D because he got hurt at work. P from North Carolina, sues D from South Carolina. Judge v Jury issue.

State says judge should determine the workers comp determined by who is a statutory employee. South Carolina law says judge should determine who is a statutory employee. Federal law says a jury makes that decision. Apply 2 part Guaranty Trust Test: Chooses it was a form or method. Does not appear that it was an integral part of the statute. Look at policy reasons Court comes to the conclusion that this is not a substantive right. @ issues is who gets to make the determination of who is a statutory employee (Judge or Jury). If state rule, Judge should be the one who determines. Result is not changed if judge or jury determines. Court says there is a 3rd part of the test Federal interest that is involved. You not only have to look at first 2 prongs, but look to see if there is an overwhelming federal interest. Strong interest in applying the federal rule. Court would apply the federal rule instead of the state rule. Court makes clear this relationship is protected by the 7th amendment. Assigns decisions of disputed facts to the jury. Is the subcontractor really an employee? Issue of fact that needs to be disputed. Court reverses lower court. Finds that Federal Rule should apply. For purposes of this case, adds a third prong to the test.

Case: Hanna v Plumer:

1934: rules to apply for EVERY federal court. From NY to CA.

Rules Enabling Act: Section 2072 US Code Sections A and B are trying to tell us: Limit Forum-Shopping A: Congress authorizes power to Supreme Court to come up with rules of Civ Pro. Effort to make uniformity. These rules will be the same no matter where the federal court will be located. Making clear fed rules are only rules of procedure, not substantive. B: Restating that these rules are only procedural rules. As long as these rules are procedural and dont abridge substantive rules, then this is valid. Impact on Erie doctrine. Hanna addresses question when you have a federal rule of civ pro involved. Choice between fed rule and state rule. Personal Injury claim: Applicable state law provides: executer of estate needs to be served personally. (Mass law). Substitute services: not permissible under mass law. Fed Law: permits substitute service. Supreme Court: Change outcome determinative test from Guaranty Trust case Cannot be read without the twin aims of the Erie Rule: Has to be placed in context of the twin aims of Erie. Preventing forum shopping and discrimination (inequitable administration of the law). Are the differences between state and federal law the kind of claim, that would encourage P to file suit in one court instead of another? This addresses forum shopping part With respect to discrimination (inequitable administration of the law): Is the difference between state court rule and fed court rule something that would be unfair to one of the parties. Instate or outstate citizen.

Revises RDA (rule of decision act) test. Create a new test for when a fed rule of civ pro involved. Gives US Gives us 2 additional rules for outcome determinative: Focus on twin aims of Erie. Turns to federal rules of civ pro. REA: Test: First the court asks does the fed rules of civ pro apply to the case of issue? Point of dispute? If not go back to RDA test. If you do determine that fed rule of civ pro on point will be valid UNLESS 1. Violates the rules enabling act or 2. The rule is otherwise unconstitutional. How do you determine if it violates REA: standard in statute, will violate REA if it abridges, enlarges or modifies as substantive right. Court determines this: Supreme Court starts strong presumption of validity, we presume the rule is valid, you can make arguments that it abridges. For policy reasons the state HAS required that a person be served in person. Actual executor has full notice. (For case at hand). Whether or not fed rule of civ pro is unconstitutional: Considered constitutional if arguably procedural. Article 3: Necessary and proper clause, enact rules of fed pro that govern fed courts. If procedural, then constitutional. Court said it does not violate REA. Governs procedure, tells you have to serve. The rule is constitutional, it is procedural. Unless obvious problem it will be valid. Choice between state rule of fed rule of civ pro, fed rule would trump. Court upholds the federal rule. 2 Separate analyses.

Supplemented by twin aims of Erie (Supplements RDA (1772)) Another analysis under REA (Hanna Case, 2 part case) Youll only do an REA analysis when there is a rule of civ pro in the fact pattern. If there is no rule of civ pro, you dont touch this. When no rules of civ pro, turn to RDA: Test is Erie Test from Guaranty Trust Supplemented by overwhelming interest from Byrd case Twin aims from Erie (in Hanna) * FOR EXAM *: SEE rule of Civ pro: Does it cover issue on point Then you do REA analysis. If the court does not buy the REA analysis, you jump to RDA. Concurring: Does not matter how will be served. Concentrate on if procedural or substantive. Does not want separate test. 2 Part test (does not like) Agrees with outcome of case, not the analysis. Wants to keep just the RDA.

Choice of Law Analysis Test:

Determine subject matter jurisdiction. Federal question (dont have choice of law issue). If diversity (choice of law) Tell why it is satisfied. If in fed court because of diversity: ask: is there a fed rule of civ pro that is on point? Does it cover issue. If yes, then REA applies (2072). Determine if rule is valid based on the 2 part standard in the Hanna case. If determined it is valid, constitutional and valid (REA) then apply fed rule. If invalid under 2 part Hanna test: court will apply state law. No court has invalidated fed rule of civ pro. If you do conclude there is no fed rule of civ pro that covers issue in dispute, then the RDA analysis applies. Go through Erie, Bryd and Guaranty trust, then twin aims of Hanna to determine either state or fed. Test Is it substantive right or is it a form or method of enforcement? If you conclude it is a substantive right, the court will apply state law UNLESS there is an overwhelming federal interest (Byrd case), then you apply federal law. 2nd Inquiry: is it outcome determinative, in the sense that the P would have picked a particular forum at the outset of the case based on the differences between fed and state law. Incorporating one of the twin aims of ERIE If you conclude P would have picked another forum, court will apply state law. (if outcome determinative) UNLESS there is a strong federal interest in applying federal law. 3rd Inquiry: is it outcome determinative in the sense that it interferes with the administration of justice? Promotes discrimination. If the answer (you conclude) that the

answer is yes, the court will apply state law unless there is an overwhelming federal interest in applying federal law. (Byrd case). Policy argument.

Case: *Gasparini v Center*

D lost Ps transperencies 59(A)(1)(A): after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court. A party who has lost at trial, can move for a new trial for any reason or based on any reason that federal courts have previously used to grant a new trial. Shocks the conscience standard: trial judge in fed court has original discretion to grant a new trial. Federal Appeals: constrained by review of trials judgment 7th Amendment (No fact that is tried by a jury may be reexamined by a federal court of appeals other than according to the rules of the common law) 2 Parts: Right to a jury trial (Byrd case) Reexamination clause: restrains fed courts ability to review fact tried by jury District court judge * Shocks the conscience * Federal appeal courts also constrained. Abuse of discretion standard. Jury makes verdict, judge sitting on trial, reviews motion, seeks to determine if the verdict shocks the conscience. If you dont like district courts motion, you can appeal, fed appeals also constrained, uses the abuse of discretion.

Issue: whether or not the award is excessive or inadequate and does it deviates materially. De Novo: look at it in fresh eyes. Look at the facts new. 2 Parts of NY law: Whether the damages materially deviate from reasonable compensation When it gets to court of appeals: de novo. Fed Law: applies shocks the conscience only. NY=de novo. Fed Courts of appeals: constrained from looking at facts determined by jury. Abuse of discretion standard. Issues: NY= Deviates Materially. On appeals=de novo Fed=Shocks the conscience. On appeals=abuse of discretion. Does the fed court have to apply deviates materially standard? Or can fed court use a standard, thats been used in common law? The courts concludes: That federal rule 59- is not on point. Does not cover the issue at hand. Goes to 59 (a)(1)(a): does not tell you have to determine how to get a new trial if it shocks the conscience. If fed rule on test must determine if this abridges fed and state. (REA analysis). Fed rule silent on which standard we should use. Not conflicting with language in the NY statute. No need for REA analysis We need to do RDA analysis (Erie, Guaranty Test, Byrd, Hanna (twin aims of Erie). Guaranty trust case: outcome determinative test. Hanna- Refined guaranty trust case. Outcome test from Guaranty must be guided by twin aims of Erie: discouragement of forum shopping and avoidance of inequitable administration of laws.

On appeals, does fed court have to review the trial courts de novo standard or the abuse of discretion standard. D claims its a substantive issue. Or a forms or means of enforcing the right (is it outcome determinative). P argues: NY law is procedural. Forms or means of enforcing right Not outcome determinative. Regulates. P wants to use the abuse of discretion standard. If looked at de novo= reward could potentially go down. Abuse of Dis: less likely that $450,000 will go down. Reexamination: prevents review of facts. De novo=tougher standard. Procedural. Byrd Case: is looking at a different portion of the 7th Amend. Dealt with trial by jury. Workers compensation act. Who gets to make determination about who is a statutory employee. Were now looking at the other part of the 7th Amend: look at the federal interest involved. Appellate review is : we can reconcile the fed and state interest. Its not an either or scenario. Solve issue: by having Fed court apply NY law. Overwhelming federal interest argument. Not supposed to review facts tried by jury. We can reconcile the issue. Common law may recognize such a standard in NY. Fed court should use deviates materially standard: substantive right. Effects the outcome. We have to use NY law With respect to 2nd issue: federal law trumps. Use the abuse of discretion standard. Courts of appeals constrained on how they view jury decisions. They get to hear live testimony and evidence. Court of appeals should not 2nd guess trial courts judges. Can only second guess them by abuse of discretion standard.

Policy reasons: trial judges gets to hear live evidence. Court of appeals may be looking at written summaries or tapes, cant look at witness faces.

Case: Shady Grove v Allstate

Decided in 2010. Shady Grove was trying to bring a class action against Allstate. Rule 23 v NY Law Miss Galvez assigned rights over to Shady Grove, Shady Grove went after Allstate after they failed to pay benefits and interest. Subject Matter: brought diversity action. Section 901(b): Precludes class action where basis of suit is to bring a penalty. Rule 23: Civ Pro, limitation about brining suit based on a penalty does not exist. District Court: dismissed suit because it lacked jurisdiction. Shady Grove asserted lawsuit as satisfying requirements of diversity. Amount in Controversy relaxed in class actions. By applying NY law it will block the court from hearing the case. Court of Appeals: agreed. Addressed different issues, nothing on point. No conflict between rule 23 and NY law. Lack of jurisdiction. No conflict between rule 23 and NY law. They both cover 2 different scenarios. Rule 23: permit class actions. Asked question if given class SHOULD be certified. 901 (b) in NY: you cannot permit. Rule 23: who can bring or maintain a class action lawsuit. Silent in criteria. Asked question if given class SHOULD be certified. 901 (b): Deals with antecedent question. Question of eligibility. Whether a claim is eligible for class action Supreme Court: Rule 23 and 901(b)=covers the exact same law suit. Can you bring a class action? Requirements.

First question in Hanna test: whether federal rule applies. Dont have choice of law if federal rule If diversity: MUST CONCLUDE THIS!!!! Is there a rule of civ pro on point? Does fed rule cover issue? Can you bring class action if basis is penalty? Yes covers issue, and there is a conflict between NY law and Rule 23. 901(b) would prevent class action from going forward. If yes REA analysis There is a conflict: Do 2 parts Hanna Test: Fed Rule 23 does not violate REA. Enables case of hearing cases of multiple parties at once. Does fed rule abridge substantive rule? Is it a rule on constitution? Federal Rules 18 and 20: joiner rules. Permit joiner claims and joiner parties. Those rule are valid, this should be as well (Rule 23). Leave underlying rights of parties intact. Does not impact parties substantive rights. Not substantive or procedural nature of effective state law. What matters is substantive or procedural nature of the federal rules. -Focus Will be constitutional. Court Held: reversed court of appeals decision and remand the case for further proceedings. This rule provides mechanisms to get into federal court. Forum Shopping=problem with RDA case.

1. Swift Case: supreme case interpreting the RDA. There should be a universal common law.1652- federal courts only need to apply state statutes or state constitutional law, do not need to apply state common law which comes from cases.

2. Erie: 2nd case from supreme court that interprets RDA. Gives 4 reasons for overturning Swift, concludes that fed courts sitting in diversity must apply state statutes, state constitutional law and also state common law, which comes from the cases. In this decision, court hones in on TWIN AIMS OF ERIE: Discourage forum shopping Discourage discrimination: also referred to as discouraging inequitable administration of laws Just Reed: question he poses, does Erie now mean congress does not have power to enact rules of procedure which apply in federal court.

3. Guaranty Trust Case: court establishes 2 part test: Is the state law substantive right or a form or method of enforcing the right? Even if you conclude that it is a form or method is it in fact outcome determinative?

4. Byrd: 3rd prong added to Guaranty Trust case. You have to balance federal interest. Is there an overwhelming federal interest in applying federal law? Issue: Right to jury trial under the 7th amend.

5. Hanna Case: establishes 2 test when there is a fed rule of civ pro involved REA Analysis: (Section 2072) Rules enabling act: congress authorizes enacting federal rules

With respect to 3 part test Guaranty trust and Byrd: the outcome determinative prong, you must analyze the prong in connection with the twin aims of ERIE (discouraging forum shopping and discrimination) Tests under Hanna: does fed rule abridge or modify state substantive right? Is it unconstitutional?

6. Gaspirini: Court concludes that basis for subject matter=diversity. Whether fed rule is on point? Does in conflict with state law? Dealt with Rule 59, granting new trials. Fed Rule: grant new trials on any basis previously done in fed court. Fed Case Law interpreting 59: use shocks the conscience standard. NY Law: use deviates materially standard. Supreme Court: no conflict between NY law and Fed law. Comes from rule 59: grant a new trial on previously mentioned rule, NY law says use deviates materially. Conflict comes from federal case law which interprets rule 59. Once you determine no conflict between fed and state: jump to RDA analysis (Erie, Guaranty Trust, Bryd and Hanna)

7. Shady Grove Case: district court and court of appeals, concluding there is no conflict between rules. Supreme court= there is a conflict between ny law and rule 23. There is a conflict: does REA analysis

Case: State Farm v Campbell

-Ospital and Slusher were killed.

-Campbell sued for wrongful death and tort suits -State Farm was Campbells insurance. -Court held that Campbell was at wrong, and ordered him to pay more money than if they settled. State Farm refused to help him pay. -Campbell joins suit with lawyers for Ospital and Slusher, and they all sue state farm. -Campbell awarded 1 million compensatory and 145 million punitive -Issue is whether or not the 145million was too much. -BMW test: 1. Degree of reprehensibility of Ds misconduct 2. Disparity between actual or potential harm suffered by P and the punitive damages rewarded. 3. Difference between punitive damages awarded by the jury and the civil penalties authorized or imposed comparable.

Case: Sigma V Harris

D worked for P and before he went to work he signed an agreement that stated that he will not work for a competitor for two years after leaving Sigma. Also when he leaves he would not disclose any confidential info.

Sigma gets a temporary restraining order against Harris. Harris ignores it.

3 Prong Standard:

1. Covenant must be reasonably necessary to protect the employers legitimate interest.

2. Is it reasonable in terms of temporal scope

3. Must be reasonable in terms of geographic scope

To determine: balancing of interests of the parties who might be affected.

Courts Holding: D cant work of ICN. even directly or indirectly us or disclose trade secret information that Harris learned. There are other employees that worked for the company who were able to seek jobs that did not interfere with the agreement.

D could get a job elsewhere. Harm for Sigma chemical is more substantial. That is why they decided to grant perm injunction.

Sometimes statutes allow for attorney fees.

Case: Evans v Jeff

Johnson was an attorney for a class of mentally handicapped children.

Johnson could have gotten a good settlement if he rejects attorneys fees.

He agreed to accept.

Class Action: Rule 23- when you bring class action, the court has certified, if there is a settlement, the settlement has to be approved by the judge. Court has to review the settlement to determine if its fair.

Court Holds: Fairness Hearing- if its fair to everyone in the class.

Initially the attorney agreed to waive attorneys fees. At the fairness hearing the attorney changed his mind.

Issue: Is the settlement with condition to waive fee fair.

Ethical Dilemma: do I serve my employer or my clients. Only ethical obligation is to serve clients.

What is the incentive for legal aid to defend clients, when they arent getting paid.

Fee waivers would impede civil rights.

Court concludes: appears that district court abused discretion.

Catalyst Theory: P is the prevailing party if it achieves the desired result.

Case: Fuentes v Shevin: even temporary deprivation applies to the due process clause.

Pleadings
-Documents in which P and D set forth their claims and defenses

-Rule 7A: answer to counterclaim designated as a counterclaim

-Answer to a crossclaim

-A 3rd party complaining

-An answer to a third party complaint

-If the court orders one a reply to an answer

-Rule 10: form of pleadings (gives you general guidance of form)

A. Caption, names and parties

B. Paragraphs, separate statements

C. Adoption by reference, Exhibits

-These are the documents you submit to get case started:

-P serves D with claim. D returns with answer.

-Rule 8(a): Claim for Relief

1. Short plain statement on the ground for the courts jurisdiction. Basis for courts subject matter jurisdiction. Why should you be in the court>

2. Short plain statement of the claim showing that the pleader is entitled to relief. Facts showing that P is entitled to relief

3. Asking P to determine or set out what type of relief that they want.

-Rule 12(b): How to present defenses

-12(b)(6) motion: motion to dismiss b/c failure to state a claim upon which relief can be granted

-Standard we are going to use when this is filed:

*12(b)(1) motion: lack of subject matter jurisdiction.

*Form 7(a) and 7(b)

Case:Haddle v Garrison:
-P claims that he was improperly discharged under Section1985

-D filed a 12(b)(6) motion, P has failed to satisfy 8(a)(2), which shows that P is entitled to relief.

-No supplemental jurisdiction 1367(c)(3) : District courts may decline supplemental jurisdiction, dismissed federal question.

-12(b)(6): attacks legal sufficiency of Ps complaint. Once D files, court cant make factual determination. Court has to assume all the factual allegations in Ps complaints are true.

-Rule 11:

(a): provides that every pleading, paper filed in federal court, must be signed by attorney of record of if you dont have one, you actually need to sign it.

-Signature requirement

-Take Away: you need to sign any document.

(b): attorney or unrepresented party when sign the document, you are certifying that the allegations that you made in that document or pleading, they are formed after incurring that they were reasonable under the circumstances and to your best knowledge info that pleading or complaint not presented for any other purpose (to harass) 11(b)(1-4).

Rule 11: (a): provides that every pleading, paper filed in federal court, must be signed by attorney of record or if you dont have one, you actually need to sign it. Signature requirement. Take away: you need to sign any document

(b): attorney or unrepresented party when sign the document, you are certifying that the allegations that you made in that document or pleading, they are formed after an incurring that were reasonable under the circumstances and to

your best knowledge info that pleading or complaint no presented for any other purpose ( to harass) 11(b) (1-4). You are certifying that they dont do anything through 11 (b) (1-4) Take away: once you sign you are certifying that there is a reasonable basis for everything you allege. 11 (c): if 11 (B) has been violated, C 1-5 is detailed. Court can issue sanctions against you.

Rule 8(a)(2)

Case-Bell v Novick:
P filed a complaint that his child was injured by Ds reckless and negligent driving.

Filed in state court in Maryland.

D exercised right of removal under section 1441-1446.

D claims Ps claim failed to state a claim. P has not satisfied the requirements of rule 8(a)(2).

D decided they dont want to defend in state court.

D tried to get action dismissed in federal court.

Court concludes: they say P met the requirements of Rule 8.

In Federal court this holds, but in state court it may have not.

8(a)(2) is not the stage to create heightened requirements stage.

Takeaway: at the time 1955, courts had broad interpretation of rule 8 (a)(2).

In favor of Ps

Loose standard.

District courts approach to issue: even if Ps complaint was not very detailed, as long as you have general allegations included in complaint, that was enough to satisfy requirements of rule 8(a)(2).

D should file 12(b) motion or obtain info during discovery=if D has questions.

1957: Conley v Gibson: standard at the time to interpret what 8 (a)(2)=possibility standard. Pg 358 in text book. Unless you can conclude

beyond a doubt that P can show no facts to support claim that he would be entitled to relief, under Conley standard court cant dismiss Ps complaint.

Approving district courts interpretation.

Even if there is a small possibility that P will be entitled to relief, if P satisfies standard, claim cannot be dismissed for not satisfying rule 8(a)(2).

Leatherman and Sorema cases: all you need is the small possibility (pg. 359 in text book).

From 1957-2007: Conley was the standard for interpreting rule 8(a)(2).

Case-Bell Atlantic v Twombly:

Ps allege that telephone companies entered into a contract to prevent competitive entry.

Suing under Sherman act as an antitrust claim.

District court dismissed complaint.

2nd Circuit court reversed, citing Conely. Under the possibility standard.

Ps compliant should not be dismissed unless there was no possibility of winning this claim

Supreme court: Conely standard needs to be put to rest. Earned its retirement.

Court comes to this conclusion: utilizing Conely standard, almost impossible to dismiss Ps claim. Ps will always win.

Court hones on issue of cause. Conclusory facts= lots of frivolous actions.

Antitrust=very expensive.

If they cant allege facts, why should we go further in the lawsuit. Why should we waste courts time and money if P is unable to show they are entitled for relief.

We dont need detailed factual allegations, complaint should not have labels or conclusions.

Factual allegations: must be enough to raise right to relive above speculative level.

Standard is that it is plausible.

New Standard: we do no require heightened fact pleading of specifies, but only enough facts to state a claim to relief that is plausible on its face.

Plausibility standard= does not mean P needs detailed factual statements.

Court concludes: that P has not met the plausibility standard.

Case-Ashcroft v Iqbal:
After 9-11, P was arrested in the US on criminal charges and detained by federal officials.

P sued under Bivens, claims he was deprived of various constitutional rights.

Suing: correctional guards all the way up to the former Attorney General (Ashcroft).

D had a defense of qualified immunity (although they have violated constitutional norms, they have done so in good faith.

D are bringing forth the defense of 12(b)(6): P hasnt satisfied 8(a)(2). P must include a short and plain statement that they are entitled to relief.

Saying P has no claim, D cannot be sued.

Ds raised qualified immunity (12(b)(6) motion): made by D arguing that P has not satisfied the requirements of 8(a)(2)

How D can attack Ps complaint.

8(a)(2): short and plain statement

District court denied motion to dismiss concluding that the complaint was sufficient to state a claim despite petitioners official statues at the times in question.

District court applies possibility standard from Conley.

At the time the complaint was first filed, Conley was good law.

Bell Atlantic was decided after district court made decision.

By time this case got to 2nd Circuit, Conley was law.

On Appeal, Bell Atlantic becomes law.

Appeal: they uphold the district court.

Looks at Bell Atlantic= and concludes that is law, but it is an amplified pleading requirement (Plausibility) and only applies in certain cases.

We understand that it is a new standard, it only applies in certain, special cases.

Supreme Court= disagrees with court of appeals. This plausibility requirement applies in all instances when D is making a 12(b)(6) motion to attack Ps failure to satisfy requirements of 8(a)(2).

Not probability requirement. Asks for more than a sheer possibility that D has acted unlawfully. Facts merely consistent with liability.

Court= plausibility applies IN EVERY instance.

In ruling on a 12(b)(6)=district court must accept Ps factual allegations in the complaint as true. In accepting, the court has to determine whether P has pleaded enough facts to draw the reasonable inference that is plausible that D is liable.

Court fleshing out 2 important principals.

Court must accept as true factual allegations.

Must not contain mere legal conclusions

Complaint should not include legal conclusions, court will not give deference.

Only complaint that states plausible claim for relief, will survive a 12(b)(6) motion to dismiss.

Court applies the 2 principals:

The P cant just state conclusory facts

Reference to violating legal rights=not enough. We need more facts to figure out what is going on was potential discrimination.

Facts were conclusory.

P did not show it was plausible that he would win.

Fed gov had a non-discriminatory means to round up people they thought was taking part in Terrorist things.

Court remands for further proceedings consistent with the opinion.

Dissent: we should come to opposite conclusion. Looking at exact same facts, they claim P has satisfied the plausibility standard.

Purpose of rule 8(a)= give notice to the D. It seems that court is requiring more than notice to D.

Ps complaint included more than give notice to D

Bell Atlantic and Iqbal:

Court is going to use the plausibility standard.

Iqbal:

Ps complaint must not allege conclusory facts.

District court only obligated to assume the facts are true. No deference to

Assuming the facts in complaint are true, question that must be answered, question P must allege facts which would leave the court to conclude that it is plausible that the D is liable for the misconduct that is alleged in Ps complaint.