In order for a court to hear a case, it must have all three elements: personal jurisdiction, subject matter jurisdiction,

and venue (the three rings) On exam, analyze: three rings, three filters, argue both sides of whether service was proper On exam: Step 1: discuss if service was proper Step 2: discuss if fed. ct. or state ct. fed. court only if diversity or federal question in cause of action Step 3: run through three filters, keeping in mind general v. specific jx first, organize the case by ; Then for each : A. Start out with the question of service: 1) Constitutionality: Due Process requires notice reasonably calculated, under all the circumstances, to approse interested parties of the pendenc of the action and afford them an opportunity to present their objections; TAKE INTO ACCOUNT PRACTICALITY AND CIRCUMSTANCES 2) Statutory: How service is effected: comes under statute filter Federal Rule 4 a) summons in specified form b) i.e. summons form with seal, and time limit c) service (by whom made) by any person eighteen or older who is not a party (attorney can serve; wife or husband of can serve) court may direct service by U.S. Marshall, Deputy U.S. Marshall, etc. at request of d) waiver of service: have 30 days to respond to a request for waiver of service; if you dont accept waiver of service, pays cost of process server even if later prevails ( asking for waiver of service might make you lose under SOL) Illinois rule cannot be used yet because the proper form has yet to be approved and adopted e) service upon whom: abode service can leave it with someone at their home who is of reasonable age and discretion (in IL, thirteen years old and older see IL 2-203 have to inform person of contents, AND have to mail a letter) housekeepers usually count can appoint (actual or constructive) agent for service IL 2-202 general rule, sheriff or coroner will serve except counties with less than one million population, which may employ a civilian or people registered as private detectives
B.

Then, move on to personal jurisdiction 1) Federal Constitution

Start out with International Shoe test (such minimum contacts that it does not offend traditional notions of substantial justice and fair play personal jx issues) argue which way court is likely to rule b) Then, look at nature and quality of s act (systematic and continuous tends to be used in most general jx questions); (1) Purposeful availment (2) Foreseeability (whether could foresee he would be haled into ct in Ill) (3) Forum states interest in hearing the case (4) s interest in effective and convenient relief (5) Interstate judicial systems interest in efficient resolution of the controversy (6) Substantive social policies of the several states (7) Then, look at hardship (inconvenience for to travel to forum state; courts say with modern modes of travel, this is not a big deal) c) Individual liberty v. state sovereignty d) Connection between , litigation, and the forum
a) 2.

Then, look at statutory (ex. Ill. long-arm statute)2-209 (a) (specific jx) does cause of action arise from: (a) commission of tortious act within the state (b) transaction of business (tenuous v. substantial) Then, look at state constitution (for Illinois, due process = fair just and reasonable; also look at fiduciary shield)

3.

4. In K cases, look at forum selection clauses Dont do K analysis in a clearly tort case, but if it could be brought in both, analyze it both ways C. Then, analyze venue: Test venue two ways: (1) Test through the statute (venue is entirely statutory, except in Illinois, which interpreted the constitution to apply State statutes on venue: (a) 2-101 venue proper in county of residence of any where transaction or some part thereof occurred, or where cause of action arose (ex., radio contact during ambulance ride) if all s are non-residents of state, action can be brought anywhere in state if there are several s in different counties, you can have your choice Williams an Illinois case, the only case in the nation to decide venue under constitutional issue of Due Process; said if s are indigent, violates due process to set venue too far away (b) 2-102 businesses

corporation any county where it has a registered office, any other office, or where it is doing business what does doing business mean? Although doing business is interpreted pretty loosely in Ill. for personal jx, the courts are stricter for venue purposes. For venue, the must do usual and customary business within the county in which venue is sought.

partnership where either partner is

(c) 2-103 real estate county where the real estate is located (d) 2-103(e) insurance company : where any is located (e) Corporations: for venue purposes, a corporate is said to reside wherever it is subject to personal jx. (2) Test through forum non conveniens a) State court: no statutory mechanism for transferring elsewhere based on forum non conveniens Torres v. Walsch Supreme Court said a trial court has an inherent power to transfer a case to another county within a state, or dismiss so it can be brought in another state or country; both transfer and dismiss come under forum non conveniens (b) General principles: 1) the s choice of forum should generally be undisturbed a) the has the burden of proof b) the was the one injured c) there are already other means to protect d)protect interests of forum state e) reduces litigation gotta choose to favor one or the other, or the constant arguments over venue would eat up court time (c) GILBERT GUIDELINES: (use these to decide if case should be transferred to another county) Factors pertaining to the private interests of the litigants (important): 1) relative ease of access to sources of proof 2) availability of compulsory service for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses 3) possibility of view of premises, if view would be appropriate to the action 4) all other practical problems that make trial of a case easy, expeditious and expensive Factors pertaining to the public interests: 1) administrative difficulties flowing from court congestion

2) the local interest in having localized controversies decided at home 3) the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action 4) the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law 5) the unfairness of burdening citizens in an unrelated forum with jury duty Do NOT consider: 1) fees it will cost to transfer 2) which party the law favors (unless moving it would squelch the suit) Has to be factors substantially more in favor of moving, or courts will leave it where it is; Ill. state courts are less likely to transfer than fed. courts are HAVE TO FILE A REMOVAL NOTICE BEFORE FIGHTING A JX ISSUE Change in substantive law by changing venue not a consideration unless alternative forum is clearly inadequate or unsubstantial Federal case transfers: 1404 for transfer even though venue was proper 1406 where venue was improper where filed transfer it 1407 multi-district litigation provision 1631 when filed in a court without jx, transfer it to a court with jx (which section you bring it under makes a difference for conflicts law) 1406 do not use transferors law (because venue wasnt proper there) 1407 lets you consolidate, for discovery and pre-trial proceedings, a series of cases on the same basic issues (ex., tobacco cases, plan crashes) Forum non conveniens transfers to another county, or even perhaps into state court Forum non conveniens in Illinois: Rule 187 motions on grounds of forum non conveniens If filed within six months, must waive objection to service If SOL has fun out, must waive that defense Supreme Ct. Rule 306 (a)(4) can appeal during trial from an order of the circuit court granting or denying a motion for a transfer of venue based on the assertion that the defendant is not a resident of the county in which the action was commenced, and no other legitimate basis for venue in that county has been offered by the Under Boner, court says factors have to weigh substantially in favor of before a judge will waive s choice ( courts have leaned toward finding St. Claire County okay; now, supreme court has begun giving summary orders against letting people forum shop their way into the 5th district [St. Claire County/Belleville]) 1) attorney convenience not particularly relevant

2) jury bias is one of the factors to be considered in relative advantages and obstacles to a fair trial 3) trial judge says he can move things along, so burden on courts no problem 4) Peabody has significant presence in 5th district that residents of that forum have interest in adjudicating the case 5) Dont consider inconvenience of if there are strong reasons for to choose that forum 6) the s choice is entitled to less deference when is not a resident of the chosen forum Fed. Rule 12(b)(2) motion to dismiss for lack of personal jx Fed. Rule 12(b)(3) motion to dismiss for improper venue 28 USC 1404: changes of venue First, moves for dismissal; then if they dont get that, they try to get transferred under 1404; for convenience of parties and witnesses; in the interests of justice CAVEATS: (1) If youre going to transfer, the court to which you are transferring must have personal jx, subject matter jx, AND proper venue the three rings (2) Law of transferor court applies in the new court (court in state where its originally filed) (3) Have to raise it before the trial on the merits or its waived Where there is any is joined in good faith: under 2-101, s have to be joined in good faith

D. Then, analyze smjx Federal diversity jx: 1332: 1) amount in controversy requirement ( > $75,000) 2) cant have a from the same state as any AT THE TIME THE CLAIM IS FILED; doesnt apply to third party s because they are brought in after filing has burden of pleading diversity domicile means you live there at time of filing and have no definite intention to move (minority view, intend to remain there permanently; majority view, plan to remain indefinitely) citizen under 1332 means U.S. citizenship, or permanent resident alien status, plus domicile permanent resident aliens are considered to be from the state in which they currently reside 3) corporations under 1332 (c) different from citizenship for venue a) limited partners considered as well as general partners; in limited partnerships, a citizen of where an partner is a citizen, even a corporate partner

b) associations (ex., labor union, unincorporated); citizenship is that of every one of its members c) place of incorporation and principle place of business circuits vary in test used i) where is nerve center/CEO/administrative offices? ii) Where is everyday business activity iii) Whats the center of activity AND the nerve center iv) Courts increasingly ask where bulk of activity takes place Domestic relation exception: There is usually a domestic relations exception for diversity; federal courts generally wont enter into divorce, alimony, custody; but, where there are ordinary tort issues related to domestic relations, then there is jx Amount in controversy: if pleading is for amount in excess of $75,000, and is in good faith, then amount in controversy will be met even if award turns out to be less Equitable relief: How do you measure? Look at one of four things: 1) value of injunction to 2) cost to of complying 3) cost or value to party invoking federal jx 4) The fact that the Rules allow joinder does not expand smjx; joining claims does NOT aggregate the amount in controversy. If one of the parties has enough, and the other one doesnt, under 1332 (m) and 1367 (b) may give supplemental jx if other claims arise from the same claim Exception: except by s against s made parties under Rules 14, 19 (necessary parties), 20 (joinder of parties), or 24 (intervention) NOTE: s can be joined under Rule 20 and still okay Determining smjx: 1) ask if smjx under 1331 (federal question) 2) if no, ask if smjx under 1332 (diversity w/ amount in controversy) no aggregation allowed among more than one , but one CAN aggregate all of his own different claims against one (for example, if you have a K action and a tort action, you can add all the claims to meet the amount in controversy) 3) if no, ask if smjx under 1367(b) (supplemental jx) ONLY for diversity a) first does it meet 1367 (a) (i.e., is it NECESSARY ALWAYS ask this first) b) if yes, skip to 1367 (c) c) if no, go to b (diversity) d) then go to c NOTE: state battery action is a federal question if somebody gets beat up by police officer and his friends under 1983; patent disputes are also federal question

If you have enough $ against 1, but not 2, you CANT bring action against 2 under either 1332 or 1367 (which was enacted in 1990) Class actions in diversity, USSC has said each and every member of the class must meet amount in controversy, although some courts say 1367 changed that BUT: single claim by more than one person (ex. with joint interest, like partnership) is not the same as aggregation of the claim Supplemental jx: used to be two kinds 1) ancillary if has compulsory cross claim w/o sufficient $, then ancillary jx; or, if claims against third party for more than minimum $ 2) pendent federal question issue AND state law issue UMW v. Gibbs If state claim and federal claim are parallel, both can be heard in federal court; if federal claim drops out, the court can still hear the state issue or, at its discretion, may drop the state claim Considerations: 1) Was state issue the real issue 2) When federal claims were dismissed (before trial, factors weigh in favor of dismissal; if dismissed on directed verdict, can probably go forward) 3) Pre-emption: if federal law has so filled the field of law theres not much room for state law 4) Jury confusion 5) ? Reflected in 1367 (c); up to courts discretion 1367 was enacted to allow a to sue several s in federal court on state issues (including third party s) As a matter of case law, Gibbs says sufficient federal claim can anchor state claim with pendent jx; is then up to court to decide whether to grant pendent jx If theres exclusive jx on federal claim, courts might not dismiss Concurrent jx: when federal court and state court both have jx

PERSONAL JURISDICTION (On exam, argue all the following: federal minimum contacts, traditional notions of substantial justice and fair play; Illinois fair, just and reasonable; fiduciary shield doctrine; Illinois statute)

Personal jurisdiction: 1) in personam (jurisdiction/power over the person) a) presence (in hand, in-state service) b) consent (e.g., corporations do business there, agree to be available for service there, incorporate there 2) in rem (jurisdiction/power over property, including intangibles such as stocks and debts owed) a) direct in rem (ex., quieting title) b) quasi in rem (really over K issues, not over the property itself) Affect of Full Faith and Credit Act: if courts in one state wouldnt give a case jx or effect, then another state cant give it effect If you dont think youre subject to personal jx: has to be raised in first response or not at all. Options: A) just dont show up suffer default judgment then collaterally attack if enforcement attempted drawback if that fails, can NOT raise other defenses on merits Under federal rules and state statutes patterned on federal rules: B) if you make a pre-trial answer (pre-answer motion): 1) (ex.) if you dont want to do the investigation to admit or deny, or maybe you dont want to admit 2) must raise defense of lack of personal jx 3) can still do discovery while youre waiting for the court to reply C) if you dont make a pre-trial answer (if you wait, may possibly dismiss) Note: failure to do either C or D results in waiver of the jx defense (if omitted from a motion with other issues) D) If you raise personal jx defense, CAN join it with other defenses or objections E) Can waive it because this is a good place to try it and it [the case?] can be brought elsewhere Under other state systems: A) Must raise jx claim by making special appearance (permits to object to jx w/o bringing self under jx) Now a bill pending in legislature, in the House, which will let you bring other motions while doing a special appearance

B)

If makes additional motions or raises additional matters, likely to be held to have made a general appearance and waived jurisdictional objection (ex. in McKnelly v. McKnelly, because husband had signed stipulation to suspend divorce, he waived his objection court said, Any action taken by a litigant which recognizes the case as being before the court will amount to a general appearance unless such action was taken solely for the purpose of objecting to jurisdiction.

If you challenge personal jx and lose: A) Some states allow immediate appeal (IL does not allow immediate appeal) B) Federal and other states: require appeal to await final judgment NOTE: Rule 12 (b) (2), (3), (4), (5) cannot be raised if you fail to raise them earlier Litigating preliminary injunction: waives personal jurisdiction defense Limited appearance: limited to value of property seized under attachment jurisdiction Not amenable to service: no statute giving the state jx; or, against state constitution to have personal jx over ; if its constitutional, you can still raise it Why is waiving personal jx not a violation of states rights? Unlike when Pennoyer v. Neff was decided, now personal jx is considered to be a personal right, rather than a states right International Shoe v. Hanson: requires to have sufficient minimum contacts with forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. changed approach from is it there to is it fair Black (in dissent): Federal constitution lets states have power to let citizens sue corporations whose agents do business there; shouldnt bring fair play into it. Denckla: has purposefully availed itself of the benefits and protections of conducting activities within the forum state To assert personal jx, have to go through the three filters: 1) must comply w/ state law (usually statutory) 2) Must comply w/ fed. Constitution 3) Must comply w/state constitution Modern test Due process required sufficient minimum contacts within the state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice (NOTE: under Shaffer v. Heitner, owning stock is not sufficient minimum contact for in rem jurisdiction)

Courts will consider an estimate of the inconveniences which would result to the corporation from a trial away from s home or principal place of business as relevant in this connection Courts will also look at whether the businesss behavior was continuous and systematic If a corporation exercises the privilege of conducting activities within the state, it enjoys the benefit and protection of the laws of that state

Specific jx: where the cause of action arose General jx: where s relationship with the forum state is so pervasive as to justify the state in taking action and suing for anything Personal jx is a mix of fact and law; gets decided by the court Agents: connection to be considered an agent doesnt have to be all that much; an independent contractor is not, but as long as its sufficiently reasonable to expect the message of service will get back to the parent corporation, its enough Shaffer v. Heitner revolutionized in rem and quasi in rem basically eliminates in rem jx; direct in rem as well as specific jx survive Under Delaware statute all shares of stocks of any Delaware corp. are deemed to be in Delaware Supreme Court says this is not sufficient minimum contacts; says always need to use minimum contacts as within fair play and substantial/natural justice Test: What is the relationship among the , the forum, and the litigation Is in addition to: quality and nature of acts; whether availed self of privileges of forum state Court says the fact the owns property in the state is not irrelevant. The state has an interest in controlling that property; so, just owning property in a state may, of itself, be enough contact to give jx (if the litigation is about the property). You need fewer contacts for specific jx than for general jx; would be direct in rem ((ex.) if someone trips on your land and injures himself in one state, and you live in another state, would probably be enough for jx) If the lawsuit is about something other than property, it can still be attached as security for lawsuit, but would not give you a right to a forum in that state NOTE: Where would you sue a large number of directors of a corporation? Possibly where the board meetings were held when the decisions you are suing about were made. World Wide Volkswagen (first case to weigh the other factors against s intent) U.S. Supreme Court guidelines: 1) Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a non-resident

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A judgment rendered in violation of Due Process is void in rendering state and is not entitled to full faith and credit elsewhere 3) Due process requires that the be given adequate notice of the suit 4) Due process requires that the be subject to the personal jx of the court
2)

Functions of concept of minimum contacts: 1) It protects the against the burdens of litigating in a distant or inconvenient forum 2) It ensures that states, through their courts, do not reach out beyond limits imposed on them by their status as co-equal sovereigns in a federal system Burden on : contacts with forum state must be such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. (Burden on is considered in light of other relevant factors) Relationship between and forum must be such that it is reasonable . . . to require the corporation to defend the particular suit which is brought there. ****IMPORTANT STUFF**** Relevant factors to be balanced: 1) burden on 2) States interest in adjudicating the dispute 3) The s interest in obtaining convenient and effective relief 4) The interstate judicial systems interest in obtaining the most efficient resolution of controversies (more than one trial; expenses of discovery) 5) The shared interest of the several states in furthering fundamental substantive social policies IMPORTANT QUESTION: Is the s conduct and connection with the forum State such that he should reasonably anticipate being haled into court there? Court says that manufacturer is subject to suit where injury occurs, but not necessarily those entities such as regional and retail distributors Some states say that while you do have strict liability against dealer and distributor, really, the manufacturer is more at fault; so the dealer and distributor can vouch in the manufacturer to defend the suit. Court says, The foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. Policy: allows potential s to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit. Note: The mere unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum State. Also, financial benefits accruing to the from a collateral relation to the forum State, e.g., service centers for automobiles, will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that State.

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Vouching in common law in order to reduce multiple lawsuits; requires notification of lawsuit to be sent to the third party with an offer for the third party to join the litigation and control the presentation of the defense with respect to various issues. If the offer is not accepted by the third party, the third party nonetheless is bound by the determination of the court on those issues. Asahi Stream of commerce issue (whether placing product in stream of commerce constitutes sufficient minimum contacts): Ct. says test is whether purposefully established minimum contacts in the forum state; must have committed some act b which the purposefully availed itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. . . . Jx is proper where the contacts proximally result from actions by the himself that create a substantial connection with the forum State. Judges split in opinions: part say putting in stream of commerce is not enough, must show some intent to do business in the forum state; others say stream of commerce meets minimum requirements; Stephens says stream of commerce with hazardous product, high volume, high value, then stream of commerce is enough Important part: most judges look at the stream of commerce issue by saying purposeful availment requires determination of volume, value, and hazardous character of the components; probably a regular course of dealing that results in deliveries of over 100,000 units annually over a period of several years would constitute purposeful availment even though the item delivered to the forum state was a standard product marketed throughout the world. Also: the forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state. Minimum contacts and traditional notions of fair play and substantial justice get divided In Asahi, weigh # of contacts against inconvenience to 1) Does have important reason to hear this case in the forum state 2) Does forum State have strong interest in having case resolved there? (Note: once the dropped out in Asahi, there were no California citizens to protect) 3) What is the interstate judicial systems interest in having case resolved there in interests of efficiency?

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4) What is the benefit to the promotion of desirable social policy to have the case heard there (shared interest in several States)? NOTE: Brennan likes to find personal jx; White does not Test for minimum contacts enough (using hazardous materials, etc. factors of Stephens) Subcategory: did purposefully avail itself of benefits and privileges of forum State Burger King v. Ruzewicz Prior negotiations and contemplated future consequences, along with terms of the K and the parties actual course of dealing, must be evaluated in determining whether the purposefully established minimum contact within the forum State The primary concern is that predictability in the legal system that allows potential s to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit Forum selection clauses: court has become accepting of them Federal government is the sovereign here s relationship to the sovereign as weighed against other interests Important: Rule 4 (k) of Fed. Rules territorial jurisdiction says you can only assert jx over in federal court in a given state if you could assert State jx over that person Exceptions: interpleader, anti-trust, third-party claims Court says its not the fact that there is a K, in and of itself not enough for minimum contacts; says its the fact the K is for a 20-year mortgage If a Californian gets a New Jersey loan, is that personal jx? Cant really say theres not. Depends if banker assigned your loan out of state, then no act of yours; probably not Wouldnt have level of constant pervasive interaction of franchise situation But, through reasonable expectation, theres some potential for personal jx RAR v. Turner Only the dealings relevant to the disputed K have any bearing; prior contacts not involving the disputed K have no substantive bearing, so no jx Yates v. Muir Malpractice by omission argument is that the tortious act occurs where the injury occurs; court says thats true in physical injury, but not from merely economic consequences

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Ores and Sproull v. Vedder Price v. Golden Contacts included phone calls, letters, conference calls NOTE: Illinois very expansive in its reading of personal jx General jx: Situation where has so much contact with forum State that its deemed to subject them to jx for any cause of action. A) domicile of private individual B) place of incorporation C) principle place of business D) one test is company doing business in the State? At least for U.S. s, there will always be a State in which suit may be brought on all claims. For example: corporations, in state of corporation, state which is a principal place of business; state of domicile; and, extends a little further in some instances. Kennerson v. Lindblade When a , by the nature of the functions and services it performs, may be fairly considered to be tacitly soliciting business in another state, it must expect it may be haled into court in that State. NOTE: in true general jx., doesnt matter where decedent is from Burnham v. Superior Court: USSC 1990 if you come voluntarily and knowingly into a State, youre subject to its jx Due process: Illinois different Rollins: no other state except Illinois has interpreted its due process clause differently than the federal clause. Two main findings: 1) Fiduciary shield doctrine applies to Illinois 2) Illinois state constitution doesnt follow same interpretation of due process that fed does Rollins test: whether it is fair, just and reasonable to exercise personal jx Fiduciary shield doctrine in Illinois: no personal jx when a party comes into a forum state to further the ends of his employer Subsequent cases have been all over the map, in Illinois and federally; first district only applies it to para-military organizations such as police, etc.; other districts allow it even when employee is going directly against wishes of employer in tortious acts under the K In other states: fiduciary shield doctrine has been recognized in other states, but not uniformly Some: only applies to K cases, cant get personal jx over agent Others: apply it to torts only when did not enter the forum state NOTE: can always go after the employer; fiduciary shield only pertains to employees Also note: N.Y., which created fiduciary shield, has since rejected it

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Significant three filters: court says under Illinois interpretation of due process clause, it is not fair, just and reasonable to subject an employee to personal jx for carrying out employers instructions.

Forum selection clauses Carnival Cruise: raises the question of whether an actual assent to personal jx is valid typically courts have disfavored forum selection clauses, thrown out as invalid, so then Ks were written with choice of law clauses Where negotiated as a part of the K, will be honored Policy reasons: 1) cruise line has special interest in limiting fora 2) dispels confusion about fora, sparing expense of pre-trial motions 3) tickets cost less because cruise line doesnt have to litigate everywhere Forum selection clauses can still be challenged in K law As a federal matter, is within due process to enforce forum selection True forum selection clause is based on consent Can consent to law of a state but not necessarily to jx Most states have a body of law called Conflicts to deal with when to use one body of law over another When a company has a representative in a state, you can do in-hand, in-state service, therefore that state has jx (where K appoints that person as agent for service of process) Arbitration clause: takes disputes out of judicial system (rules of evidence, etc. dont apply) Cognovit: Someone (like a holder of a note) can come in and confess judgment against the holder of the note can go in and admit is liable You sign a K which says you, as debtor, waive all your rights to contest a judgment against you Sometimes can be a bargained-for provision between businesses (there is usually a triggering mechanism cuts off all rights of appeal may have dont even have to give notice to maker of note (often unenforceable in consumer Ks, but sometimes enforceable as between businesses) Proper notice: under Mullane, use the three filters for notice (Mullane interprets due process clause of 14th amendment) 1) Statutory (did comply with statute) 2) State constitutional provision (potentially) (Rollins)

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3) Federal constitutional limits on notice Reasonable notice under constitutional requirements: Due Process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections TAKE INTO ACCOUNT PRACTICALITY AND CIRCUMSTANCES New York banking laws a) combining funds saves administrative costs b) accounting trustee has to do an accounting every three years if accepted by court, it cuts off any claims against trustee by beneficiaries for period accounted for c) requires only publication notice Court: says mail is okay for known recipients, because they are reasonably certain to get it; publication okay for contingent or unknown beneficiaries, because it would be impractical to approach it any other way

Tulsa: (in IL, K claims have a 10-yr. SOL; most states similar. States have statutes to cut off claims, provide if a will was in probate, announcement of probate and published in paper, debtors had only two months to press claims.) Court said since court is intimately involved throughout the process of appointing executor, etc., and since court is representative of the state, the state is involved sufficiently to bring it under Due Process. Therefore, publication notice not sufficient, needs to be the service you would use if you really wanted to serve someone with notice mail okay (puts the burden on the State, who can then put it on someone else) NOTE: after this case, all states modified their probate codes. How service is effected: comes under statute filter Federal Rule 4 2) summons in specified form 3) i.e. summons form with seal, and time limit 4) service with complaint (by whom made) by any person eighteen or older who is not a party (attorney can serve; wife or husband of can serve) court may direct service by U.S. Marshall, Deputy U.S. Marshall, etc. at request of 5) waiver of service: have 30 days to respond to a request for waiver of service; if you dont accept waiver of service, pays cost of process server even if later prevails ( asking for waiver of service might make you lose under SOL) Illinois rule cannot be used yet because the proper form has yet to be approved and adopted

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6)

service upon whom: abode service can leave it with someone at their home who is of reasonable age and discretion (in IL, thirteen years old and older see IL 2203 have to inform person of contents, AND have to mail a letter) housekeepers usually count can appoint (actual or constructive) agent for service IL 2-202 general rule, sheriff or coroner will serve except counties with less than one million population, which may employ a civilian or people registered as private detectives

Proof of service: Rule 4 (L) certificate or affidavit of service filed with the court

LONG-ARM STATUTES Under the three filters, the third filter can be either a statute or a rule Ill. 2-209 Illinois Long-arm Statute states have been fairly aggressive about extending long-arm jx as far as the constitution will let it go Under Crocker, court said cause of action must arise from a transaction in Massachusetts. Here, the cause did not arise from the transaction itself, so as a matter of statutory law, no personal jx (note: since this case, Mass. reinterpreted the long-arm statute to make it reach the limits allowed by the constitution) federal court had to use Mass. law under Rule 4 (k) Under constitution, mere solicitation usually is not enough for personal jx

VENUE (28 USC 1391) Venue is entirely statutory, except in Illinois, which interpreted the constitution to require it TEST VENUE TWO WAYS: 1) test through the statute 2) test through forum non conveniens Deals with where within the forum state a case can be heard. Statute has loosened up. Corporations: for venue purposes, a corporate is said to reside wherever it is subject to personal jx. Personal jx = state boundaries State statutes on venue:

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2-101 venue proper in county of residence of any where transaction or some part thereof occurred, or where cause of action arose (ex., radio contact during ambulance ride) if all s are non-residents of state, action can be brought anywhere in state if there are several s in different counties, you can have your choice 2-102 businesses corporation any county where it has a registered office, any other office, or where it is doing business partnership where either partner is 2-103 real estate county where the real estate is located 2-103(e) insurance company : where any is located 2-104 if you get venue wrong: does not void judgment to bring in wrong county if the issue is raised, the case is not dismissed, it is transferred must bring the issue up before the answer or before you appear Staumbaugh what does doing business mean? Although doing business is interpreted pretty loosely in Ill. for personal jx, the courts are stricter for venue purposes. For venue, the must do usual and customary business within the county in which venue is sought. Williams an Illinois case, the only case in the nation to decide venue under constitutional issue of Due Process; said if s are indigent, violates due process to set venue too far away Forum non conveniens is discretionary if a court has jx and venue, can still choose to not hear the case because of other factors which would make it more convenient elsewhere used to be a means of dismissing case sometimes conditional (e.g., on waiving objections based on SOL) In response to Gilbert, enacted 1404, which says complaint doesnt have to be refiled, can be transferred to another district used when theres more than one appropriate venue where one place is a more convenient forum if you cant transfer have to dismiss to international forum (in federal court) in federal court, forum non conveniens always leads to dismissal To move a case in federal court: 1404, 1406, 1631 let you do that State court: no statutory mechanism for transferring elsewhere based on forum non conveniens
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 Torres v. Walsch Supreme Court said a trial court has an inherent power to transfer a case to another county within a state, or dismiss so it can be brought in another state or country; both transfer and dismiss come under forum non conveniens General principles: 2) the s choice of forum should generally be undisturbed f) the has the burden of proof g) the was the one injured h) there are already other means to protect i) protect interests of forum state j) reduces litigation gotta choose to favor one or the other, or the constant arguments over venue would eat up court time GILBERT GUIDELINES: (use these to decide if case should be transferred to another county) Factors pertaining to the private interests of the litigants (important): 5) relative ease of access to sources of proof 6) availability of compulsory service for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses 7) possibility of view of premises, if view would be appropriate to the action 8) all other practical problems that make trial of a case easy, expeditious and expensive Factors pertaining to the public interests: 6) administrative difficulties flowing from court congestion 7) the local interest in having localized controversies decided at home 8) the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action 9) the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law 10) the unfairness of burdening citizens in an unrelated forum with jury duty Do NOT consider: 3) fees it will cost to transfer 4) which party the law favors (unless moving it would squelch the suit) Has to be factors substantially more in favor of moving, or courts will leave it where it is; Ill. state courts are less likely to transfer than fed. courts are HAVE TO FILE A REMOVAL NOTICE BEFORE FIGHTING A JX ISSUE Change in substantive law by changing venue not a consideration unless alternative forum is clearly inadequate or unsubstantial Federal case transfers: 1404 for transfer even though venue was proper 1406 where venue was improper where filed transfer it

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1407 multi-district litigation provision 1631 when filed in a court without jx, transfer it to a court with jx (which section you bring it under makes a difference for conflicts law) 1406 do not use transferors law (because venue wasnt proper there) 1407 lets you consolidate, for discovery and pre-trial proceedings, a series of cases on the same basic issues (ex., tobacco cases, plan crashes) Forum non conveniens transfers to another county, or even perhaps into state court Forum non conveniens in Illinois: Rule 187 motions on grounds of forum non conveniens If filed within six months, must waive objection to service If SOL has fun out, must waive that defense Supreme Ct. Rule 306 (a)(4) can appeal during trial from an order of the circuit court granting or denying a motion for a transfer of venue based on the assertion that the defendant is not a resident of the county in which the action was commenced, and no other legitimate basis for venue in that county has been offered by the Under Boner, court says factors have to weigh substantially in favor of before a judge will waive s choice ( courts have leaned toward finding St. Claire County okay; now, supreme court has begun giving summary orders against letting people forum shop their way into the 5th district [St. Claire County/Belleville]) 7) attorney convenience not particularly relevant 8) jury bias is one of the factors to be considered in relative advantages and obstacles to a fair trial 9) trial judge says he can move things along, so burden on courts no problem 10) Peabody has significant presence in 5th district that residents of that forum have interest in adjudicating the case 11) Dont consider inconvenience of if there are strong reasons for to choose that forum 12) the s choice is entitled to less deference when is not a resident of the chosen forum Fed. Rule 12(b)(2) motion to dismiss for lack of personal jx Fed. Rule 12(b)(3) motion to dismiss for improper venue 28 USC 1404: changes of venue First, moves for dismissal; then if they dont get that, they try to get transferred under 1404; for convenience of parties and witnesses; in the interests of justice CAVEATS: (4) If youre going to transfer, the court to which you are transferring must have personal jx, subject matter jx, AND proper venue the three rings (5) Law of transferor court applies in the new court (court in state where its originally filed)

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(6) Have to raise it before the trial on the merits or its waived Where there is any is joined in good faith: under 2-101, s have to be joined in good faith

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SUBJECT MATTER JURISDICTION Subject matter jx is a different kind of animal than personal jx; personal jx is geographic and started out to protect states rights, then developed to protect individual rights; venue is also geographic; smjx is NOT geographic, if you have subject matter jx in federal court in Delaware, you also have smjx in Hawaii; the question is, does this court have the power to hear this kind of case? In the federal system, consequences of both statute and US constitution you cant have greater than the amount allowed by the constitution, but the legislature can and has declined to allow full amount of power granted by the constitution; congress has power to limit the lower courts. 1331 doesnt say federal courts have exclusive jx; usually federal and state courts have concurrent jx unless statute says its exclusive to one or the other (for example, 1338 makes patents, plant variety protection and copyrights all exclusively in federal jx) Mostly concerned with 1331, 1332, 1337; 1334 is redundant with 1331 Subject matter jx is a way of protecting the balance of power between federal and state courts much more fundamental, is about structure of government; courts are required to dismiss if no smjx Well-pleaded complaint rule: if complaint can be made, without extraneous matters within federal jx, then no federal smjx; must show it arises under federal laws/constitution Rule 8(a): to file a federal claim, have to file a short claim in the complaint why there is jx Louisville and Nashville RR v. Mottley: its not enough to qualify a case for federal jx that an expected defense may be invalid due to some provision of the US Constitution; in order to enter the federal jx the s original cause of action must arise under the Constitution Declaratory judgment and well-pleaded complaint: declaratory judgment is a statement by the court about what the rights of the parties are usually requested by ; information from affirmative defense is used. How do you raise subject jx? Can raise it at any time can raise it for the first time on appeal, even There are some circumstances where you can collaterally attack subject matter jx, but those circumstances are RARE a) If the first action/judgment is in federal court, no collateral attack; it is always incumbent on federal court, because federal courts have limited jx, to see if it has subject matter jx, so it is presumed ct already considered the matter and determined it had smjx, then Full Faith and Credit clause comes into play; could use Rule 12 to attack pjx and smjx at same time

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b) if first time in state court can be subject to collateral attack (state courts are not limited in smjx, so there is no presumption if case is on federal issue (ex. patents), the decision is void and does not get full faith and credit Federal diversity jx: 1332: 4) amount in controversy requirement (= or > $75,000) 5) cant have a from the same state as any AT THE TIME THE CLAIM IS FILED; doesnt apply to third party s because they are brought in after filing has burden of pleading diversity domicile means you live there at time of filing and have no definite intention to move (minority view, intend to remain there permanently; majority view, plan to remain indefinitely) citizen under 1332 means U.S. citizenship, or permanent resident alien status, plus domicile permanent resident aliens are considered to be from the state in which they currently reside 6) corporations under 1332 (c) different from citizenship for venue d) limited partners considered as well as general partners; in limited partnerships, a citizen of where an partner is a citizen, even a corporate partner e) associations (ex., labor union, unincorporated); citizenship is that of every one of its members f) place of incorporation and principle place of business circuits vary in test used v) where is nerve center/CEO/administrative offices? vi) Where is everyday business activity vii) Whats the center of activity AND the nerve center viii) Courts increasingly ask where bulk of activity takes place Domestic relation exception: There is usually a domestic relations exception for diversity; federal courts generally wont enter into divorce, alimony, custody; but, where there are ordinary tort issues related to domestic relations, then there is jx Amount in controversy: if pleading is for amount in excess of $75,000, and is in good faith, then amount in controversy will be met even if award turns out to be less Equitable relief: How do you measure? Look at one of four things: 4) value of injunction to 5) cost to of complying 6) cost or value to party invoking federal jx 4) The fact that the Rules allow joinder does not expand smjx; joining claims does NOT aggregate the amount in controversy. If one of the parties has enough, and the other one doesnt, under 1332 (m) and 1367 (b) may give supplemental jx if other claims arise from the same claim

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Exception: except by s against s made parties under Rules 14, 19 (necessary parties), 20 (joinder of parties), or 24 (intervention) NOTE: s can be joined under Rule 20 and still okay Determining smjx: 4) ask if smjx under 1331 (federal question) 5) if no, ask if smjx under 1332 (diversity w/ amount in controversy) no aggregation allowed among more than one , but one CAN aggregate all of his own different claims against one (for example, if you have a K action and a tort action, you can add all the claims to meet the amount in controversy) 6) if no, ask if smjx under 1367(b) (supplemental jx) ONLY for diversity e) first does it meet 1367 (a) (i.e., is it NECESSARY ALWAYS ask this first) f) if yes, skip to 1367 (c) g) if no, go to b (diversity) h) then go to c NOTE: state battery action is a federal question if somebody gets beat up by police officer and his friends under 1983; patent disputes are also federal question If you have enough $ against 1, but not 2, you CANT bring action against 2 under either 1332 or 1367 (which was enacted in 1990) Class actions in diversity, USSC has said each and every member of the class must meet amount in controversy, although some courts say 1367 changed that BUT: single claim by more than one person (ex. with joint interest, like partnership) is not the same as aggregation of the claim Supplemental jx: used to be two kinds 3) ancillary if has compulsory cross claim w/o sufficient $, then ancillary jx; or, if claims against third party for more than minimum $ 4) pendent federal question issue AND state law issue UMW v. Gibbs If state claim and federal claim are parallel, both can be heard in federal court; if federal claim drops out, the court can still hear the state issue or, at its discretion, may drop the state claim Considerations: 6) Was state issue the real issue 7) When federal claims were dismissed (before trial, factors weigh in favor of dismissal; if dismissed on directed verdict, can probably go forward) 8) Pre-emption: if federal law has so filled the field of law theres not much room for state law 9) Jury confusion 10) ?

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Reflected in 1367 (c); up to courts discretion 1367 was enacted to allow a to sue several s in federal court on state issues (including third party s) As a matter of case law, Gibbs says sufficient federal claim can anchor state claim with pendent jx; is then up to court to decide whether to grant pendent jx If theres exclusive jx on federal claim, courts might not dismiss Concurrent jx: when federal court and state court both have jx

REMOVAL mechanism by which defendant can choose forum 1441: First have to ask if federal court would have had original jx if based on federal question, can remove if based on diversity, can remove ONLY if no was citizen of forum state How to remove: files Notice of Removal; not asking court to remove, but announcing the removal; stays in federal court form the time its filed, unless a remand is filed or court removes it sua sponte File notice of removal in federal court, give notice to state court you have removed it; is removed when you file notice in federal court 1441(c) can basically never come into play In Illinois, 5/2-604 state pleading doesnt let you state the amount of controversy; when you remove, you say On information and belief, amount is more then $75,000; can say no, its less, but courts will hold them to it. 8(b) Rule 11 sanctions 1447 (d) even if federal court is wrong and remands it mistakenly, there is no review or appeal its final unless its a Civil Rights action (must state youre basing it on 1441 and 1443) City of Chicago v. International College of Surgeons says you can remove a state administrative appeal which was filed as an appeal in state trial court

ERIE DOCTRINE says you apply the substantive law of the state in which the federal court hears the case

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Outcome determinative test (from Guaranty Trust): Does it significantly affect the result of a litigation for a federal court to disregard a law of a state that would be controlling in an action upon the same claim by the same parties in a state court? begs the question, just what is outcome determinative, anyway? (NOTE: this was the sort of intermediate step law has shifted) 2) Ragan v. Merchants: Massachusetts law said SOL doesnt stop running until you achieve service of process; federal rule says SOL clock stops when you file the complaint; the supreme court said go by the state law on SOL 3) Byrd v. Blue Ridge supersedes Guaranty Trust BALANCING TEST general rule is federal courts sitting in diversity should apply state law; if the rule is intricately bound with state laws rights and obligations and regs, and will affect primary conduct of persons in everyday, non-litigious life, then you have to use state law; otherwise, if it isnt intricately bound with everyday life, ask if application of rule will firmly dictate the result (rather than more likely than not) If not, balance state and federal interests, but without giving more weight to state interests If yes, balance state and federal interests but give more weight to state interests 4) Hanna v. Plummer takes out of Byrd analysis any case dealing with Federal Rule; difference in state and federal law on service of process (if SOL had been issue, probably wold have been substantive enough to have to use state law) court says when a Federal Rule is involved, have to look at Rules Enabling Act 28 USC 2072 supreme court can promulgate rules, but such rules shall not abridge, enlarge, or modify any substantial right. TEST IN HANNA: does a conflicting Federal Rule abridge, enlarge, or modify any substantive rights?
1)

Now, test is: 1) Is there a conflict between state and federal practice? a) if not, no Erie problem, can apply both b) if yes, ask is there a federal statute or rule of procedure on point? 2) If the issue is a federal statute, ask: a) is the statute constitutional? (i) if yes, then apply the federal statute (under supremacy clause) (ii) if no, then ignore the statute and go to the Byrd balancing test 3) If its procedure, ask: is it validly enacted? a) does it violate Rules Enabling Act by enlarging, abridging or modifying substantive rights? (i) if yes, then ignore procedure and go to Byrd balancing test (ii) if no, then ask is it constitutional? (a) if yes, then apply the federal procedure under supremacy clause (b) if no, then ignore the procedure and go to Byrd balancing test 4) If its case law, go straight to Byrd balancing test No rule has ever been found invalid under Rules Enabling Act, which itself has never been found unconstitutional; however, some federal statutes have been found unconstitutional; also be aware federal interest in administration of own court will weigh pretty heavily

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Preventing vertical forum shopping/preventing inequitable administration of the laws comes into Byrd balancing test (want to avoid forum shopping between federal and state courts) 1) look at state interests involved (how firmly committed mandated or discretionary?) In ILLINOIS, certification rule on Erie is Rule 20; says Illinois Supreme Court may (or may choose not to) certify a question from federal court; cant certify from trial court or 8th circuit PLEADING: How does history of pleadings affect us? Categories still affect remedies, SOLs, law v. equity = different remedies, or equitable relief where there is no adequate remedy at law; more discretion in equity, balancing of hardships; no right to jury if historically the cause of the action was equity a lot of joinder rules and discovery rules re derived from chancery/equity; also depositions, all of trust law, mortgage law, derived from equity practice In federal court, with a public entity, what you plead and what you prove have to be the same thing You have to say enough to put your case under the body of law youre invoking Equitable remedies injunctive relief, specific performance, constructive trust Legal remedies replevin, eviction Purposes of pleading: 1) Give notice of the nature of the claim (now this is main thing) 2) State relevant facts (a little bit this one now) 3) Narrow the issues 4) Serve as guides for discovery and trial 5) To expose insubstantial claims 6) Separate issues into factual and legal issues In Illinois, 1-5 now applicable counts on pleadings to refine the issues for discovery and for trial Illinois 2-603 Illinois says use ultimate facts (for example, exactly how was negligent was drunk, didnt maintain brakes, etc.), not evidentiary facts (too much detail; for example, exactly how fast a speeder was driving) or conclusions of law (too little detail; for example, he was breaking the law when he hit the other car) In modern pleading, can plead in the alternative (e.g., I didnt do it, and besides, I had a good reason when I did it) historically couldnt, could only delay things with dilatory pleas (challenge to jx), or traverse, or plea confession and avoidance

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General Rule: federal courts notice pleading dont have to say much, just give notice of what youre complaining about; stating the facts of the case, state yes, ct discovery; speedy disposition of the claims, state complaint, federal court discovery Great difference in how you plead in state court, have to give facts (fact pleading) Knox College: separate claims should be put in separate counts; Illinois fact pleading insists that allegations must be well founded in fact and law, without the benefit of discovery; cannot plead general averments, MUST file ultimate facts Federal system lets you plead on the alternative, Illinois does not alternatives leave an awful lot to defend against final pre-trial order supersedes the complaint Rule 11 amended in 1983 from to the best of pleaders knowledge (virtually no sanctions); amended to after reasonable inquiry and if violated, court shall impose sanctions then everybody started filing Rule 11 and got a lot of satellite litigation. NOW Rule 11 has safe harbor provisions, with sanctions other than attorney fees (safe harbor = no rule 11 sanction for filing rule 11) also, now reasonable inquiry under these circumstances. Can say, On information and belief, upon further discovery it will be shown that . . . . If you find out facts are different from what you thought, you must not argue the original fact pattern Safe harbor a Rule 11 has a 21-day waiting period after drafting it and serving other party, during which other party has a chance to correct their mistake A court may, on its own initiative, issue an order that a pleading violate Rule 11 (b), and the party must attend a hearing to show cause if burden is not met, court can impose sanctions without the 21-day waiting period Rule 11 (c)(2) tells what the sanctions are now, theres a lot more discretion in the court deterrence goal rather than compensation goal (may be non-monetary, take a law class in continuing ed. or pay the court, or award other side attorney fees) Can have inadequate factual investigation, or inadequate legal argument; etc. In federal courts: general acceptance of federal pleading Limits: 1) Rule 11 requires objectively reasonable investigation Where issue is factual, sanctions can go against attorney as well as client Where time constraints are tight, attorney cant do as much investigation, and thats okay Where issue is legal insufficiency, only attorney is to blame (and his law firm); and co-counsel law firm if theyre involved in drafting the complaint Safe harbor 21 days after Rule 11 motion is filed to withdraw the complaint; by that time, the other party is out the expense of filing a motion Rule 11 is for legal insufficiency Entire onus is against attorney Court says you dont necessarily pay attorney fees

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 Determine amount by the lodestar method

reasonable amount times a reasonable number of hours; a court wont award more than the lodestar amount, but may award less if thats sufficient deterrent effect Court has inherent power to impose fines even without Rule 11 Look at Illinois rule 137 within courts discretion whether or not to enforce Rule 137 sanctions; cant sanction law firm; no safe harbor provision; party can be sanctioned for even legal pleading In Illinois, there is concurrent jx between court and legislature on procedure; if theres a discrepancy, court wins Gerbode a U.S. Dist. Ct. case decided after Rule 11 amendments the court has the authority to sanction a co-counsel law firm, as well as the primary offending firm, even though co-counsel did not sign the offending pleading; however, in order to do so, the record must show that firms culpability or part in causing a violation Federal Rule 9: fraud has to be pled with particularity 1) clear and convincing evidence burden of proof 2) lots of bad press even if claim is groundless 3) if mistake, need to give notice to other party of what mistake was made 4) usually comes up in K; contrary to usual damages in K actions Civil Rights pleadings: courts are a little more exacting; argument is that individuals who are sued have qualified immunity if violators were unaware of the law; some courts say that means not only immunity from money damages, but also immunity from standing trial. Supreme court said no in Leatherman; said civil rights as regards municipalities are not covered by 9(b), but left question open about individual officers Schultea U.S. case 5th circuit said Rule 8 applies police chief demoted for investigating a member of city council; alleged violations of Due Process and infringement on first amendment. Rule 7 says that the court may order a reply to an answer of qualified immunity, or a third party reply at pleading stage, claim will have to say why qualified immunity does not apply (real problem for because havent gotten to discovery yet) Bottom line: greater requirements in pleadings for fraud and mistake, but not for Civil Rights Allocating the elements: who should bear the burden of pleading? Cause of action v. affirmative defense generally burdens of pleading and proof run together, but not always Generally only applies to close cases

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 Coleman:

Legislatures make decisions about who bears the burden Relevant in directed verdicts as well as in pleadings

Motions 2-619 and 2-615 Burdens of pleading, proving and persuasion makes the difference in who wins a close case For example, in states with contributory negligence, it was an affirmative defense won if evenly balanced In Illinois, it was up to to prove they were not contributorily negligent won the case if evenly balanced Why allocate in a certain way? Policy reasons: Who has better access to the knowledge May decide that in a close case you want (or ) to win Hard to prove a negative, so put burden on someone who can prove something did exist; helps define the issue ( can choose which ways was negligent; very difficult for to prove all the ways that was not negligent Probability (what is most likely to be true) Gomez v. Toledo: (suit over allegedly wrongful termination in violation of Civil Rights statute) Supreme court: not going to require subjective good faith; just whether could have reasonably had basis for believing he was acting in a manner authorized by the law in those particular circumstances Court allocated burden of pleading to in bad faith issue because: 1) statute 2) who has access to information about the issue (which is only the person who has intent) Pre-answer motion: motion to dismiss Rule 12 (b): motion to dismiss filed before answer is filed The files complaint; does not file answer; files motion instead of an answer If 12(b) motion is denied, then has to answer within 10 days of denial If 12(b) motion is granted, the case is dismissed, or, in 12(b) or 12(c), gets leave to file an amended complaint Post-answer judgment: motion for judgment on the pleadings Rule 12 (c): motion for judgment on the pleadings; filed after submits answer If 12(b) motion is granted, the case is dismissed, or, in 12(b) or 12(c), gets leave to file an amended complaint Filing an answer: federal court

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Federal court: 20 days after summons or complaint to file answer or 12(b) motion OR, 12 (e): motion for more definite statement (rarely granted, because in notice pleading you dont have to give all that definite a statement OR, 12(f): motion to strike material which is scandalous or legally insufficient If 12(b) motion is denied, then has to answer within 10 days of denial If 12(b) motion is granted, the case is dismissed, or, in 12(b) or 12(c), gets leave to file an amended complaint In federal court, only get one pre-answer motion need to include everything, or will waive defense of personal jx; improper venue, insufficiency of process NOT WAIVED subject matter jx, failure to state a claim, failure to join an indispensable party, etc.

Illinois is very strict about proper labeling of motions request for bill of particulars (under 735 ILCS 5/2-607) = motion for definite statement replaces complaint 2-615 asks court to rule only from face of the pleadings can be raised by , or can raise in challenging complaint 30 days or more generally statements in complaint are taken as true does not consider affidavits or other evidentiary/supporting materials says the allegations are insufficient to state a claim or cause of action for example, failure to state an essential element of the claim must specify defects and ask for appropriate relief 21 days after reply is filed There are six bases for attacking pleadings under 2-615: (1) That the pleading be made more definite and certain (2) That designated immaterial matter be stricken (3) That necessary parties be added or misjoined parties be dismissed (4) That the pleading fails to allege essential elements in the cause of action (5) That the pleadings fail to state a claim upon which relief may be granted (6) That the pleadings entitle the moving party to judgment Remedy: dismissal or leave to amend 2-619 involuntary dismissal based on certain fatal flaws (ex., filing patent case in state court; subject matter jx; incapacity; another similar action pending; cause of action barred by prior judgment; SOL has run [would be 12(b)(6) in state court];claim released, satisfied or discharged; SOF; K is invoked due to legal disability) NOTE: no equivalent in federal court can only be raised by someone in the position of a facts in complaint are taken as true as long as they are necessary to state a claim for the cause of action, but not necessary to take as true any extraneous allegations theres an affirmative matter which prevents the case from going further lets you put in affidavits in support of claims; can file them, but dont have to
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 if no demand for jury trial, judge can make credibility decisions Remedy: dismissal; court may decide evidentiary matters if no jury requested Surety 2-619 case admits all essential elements of the claim, but allegations of time are extraneous and need not be taken as true 2-1005 -- motion for summary judgment if the defect challenged lies in the underlying facts rather than in the pleadings used when there are not any material issues of facts to be tried says cant factually support the claim (make this point by countering factual allegations made in the claim) facts contained in an affidavit in support of a motion for summary judgment which are not contradicted by counteraffidavit must be taken as true for purposes of the motion failure of the party opposing the motion to file counteraffidavits does not mean that the motion is to automatically granted; just means that all facts in movants affidavits must be accepted as true for the purposes of the motion court cannot decide credibility; question is, is there any material issue of fact doesnt have to be right after pleading, usually is after discovery

Can combine 2-1005 with 2-615 or 2-619, but you have to label them in the theory youre going under Rule 181 supposed to be filed within 30 days Leave to amend is same proceeding so S.O.L. clock stays stopped ANSWERS Responses: 1) pre-answer motion (fed. Rule 12, Ill. 2-615 or 2-619); but if denied or no grounds for these, then 2) file answer fed court 20 days, Illinois 28 days (or specified date, if date certain) Zielinski raises question of how you answer (fork lift named wrong company) Federal Rule 8: makes you meet the substance of the allegation Federal Rule 11: you have to do a reasonable investigation Did not phrase denial with sufficient particularity Probably court was influenced because both s are represented by same insurance co. Court applies estoppel theory Would have been better if had set all allegations down in separate counts; want only one basic allegation per paragraph Layman v. Southwestern Bell: court says it is the obligation of a in an action for trespass to affirmatively plead and prove matters in justification; i.e., easement is an affirmative
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defense and must be raised in pleadings (in federal court, under Rule 7, only have to reply if labeled as counterclaim) Rule 8(c) affirmative defense Why didnt they just claim they have an easement? In many jxs, pleading it means assuming the burden of proof/persuasion NOT in all jxs Interrogatories: is not a pleading, its a discovery device MAKES A DIFFERENCE Cant use pleadings in subsequent lawsuit Cant explain pleadings later on Interrogatories are under oath, can support summary judgment, can be exception to hearsay rule Problem courts try to avoid is surprise in the defense Ill 2-613(d) facts constituting affirmative defense . . . (which) would be likely to take the opposite party by surprise, must be plainly set forth in answer or reply do NOT take on burden of persuasion by doing so In Illinois, separate provision 2-602 if affirmative defense of easement is a new matter, response must be filed by ; doesnt matter whether affirmative defense or a complaint Difference between affirmative defense and counterclaim is difference is difference between shield and sword Amendments to pleadings : Rule 15 Can be done one time before responsive pleading without leave of court If no responsive pleading is permitted (ex. answer) you have 20 days to amend without leave of court After that you have to get courts permission, OR stipulation from adverse party they dont object Courts permission freely given as justice so requires Illinois: 2-616 of Civil Practice Act in Illinois and relation back question (favorite topic of bar examiners) Aquaslide: seeking to amend its answer because they found out it was not their slide, after initially admitting it was theirs To use Rule 15, it takes: 1) leave of the court 2) as justice requires (if reasonable mistake was made, and it was not unduly prejudicial to opposing party) Possibly Aquaslide should have been on notice, because of history of counterfeits had developed system of spotting counterfeits
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Aquaslide (the ) wanted separate trial on whether it was their slide; Rule 42(b) allows this 1) discrete issue, separate discovery 2) fear jury would be prejudiced by s injuries Burden is on party opposing the amendment to show prejudice RELATION BACK: Rule 15(c) (especially 15(c)(2)) ONLY AN ISSUE WHEN SOL HAS RUN 1) when theory of recovery changes against same 2) when you want to change s Generally, in federal court all a complaint has to do is put on notice (because of notice pleading) In Illinois, pleading is designed to tell what he has to defend against (fact pleading) Moore: First complaint failure of surgeon to get informed consent (i.e., battery) Second complaint negligent surgery and post-op care SOL ran out between two complaints; court said (1) bases for complaints happened at different times (2) was about two separate kinds of conduct (3) separate evidence In a case like this, the would argue the occurrence was seeking medical care for the artery; would argue occurrence was either pre-op conduct or op/post op conduct If youre in federal court in state with fact pleading, federal court is liable to narrowly interpret occurrence Boner: ct allows amendment to relate back Complaint 1: show reasonable person would have kept basketball court in better condition Complaint 2: have to show you breached the standard of care for counseling Court looks not at evidence, but at timing discovery not over, etc.; also, was same occurrence, just different theories (mandatory practice went toward counseling malpractice) Illinois has different standard for relating back than federal court does (2-616) cause of action is generally narrower than federal courts claim Gray: if allegations of complaint as initially filed failed to state a claim, and should have been dismissed, you cant amend to evidence later; also, if youre gonna use a statute, have to include it in initial pleadings

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Weidner: under 2-616 (b), relation back original complaint had to allege the same cause of action Illinois test for relation back: In Illinois, because it is a fact pleading state, the use of same v. different body of evidence is a fairly reliable test for whether something relates back; remember, RELATES BACK IS ONLY AN ISSUE WHEN SOL HAS RUN When you name the wrong party: federal rule 15(c)(3); Ill. 2-616(d) amendment relating back list of conditions: (1) initial complaint timely filed (2) inadvertently misnamed (3) person youre really suing had actual service, even though perhaps not in same capacity (4) person knew action was ;ending and grew out of his or her own actions (NOTE: in Illinois you get service within sol if you have the name wrong) (5) grew out of same occurrence as in original pleading

As SOON as you find out youve sued the wrong person, immediately go amend Inadvertence must not occur through s own negligence With a corporation, you could, and should, call Secretary of State to find out if its a corporation and if so what the name is

Misnomer: 2-401 misnamed parties may be corrected at any time Borg: true misnomer case phone book name was Chicago Zoological Park Inc., was sued under that name instead of Chicago Zoological Society, which was correct name Sued correct party under wrong name; there was no other entity might have been identifying as a mistake 2-401 does not have to have had notice before SOL ran out 2-204 agent has to be someone who in the course of their normal business to relay the message to the person for whom it was intended REMEDIES: specific v. substitution Restitution (ex) criminal steals cash, buys stock, stock value goes up, in this remedy gets stocks; gets more than he lost Usually are talking about compensatory remedy goal is to restore the injured party to the position he would have been in had the injury not occurred Not really compensatory, because even the innocent party loses attorney fees One argument for punitive damages is to alleviate hardship of attorney fees Limited by duty to mitigate Different from personal injury, because personal injury is always personal and unique

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Prejudgment interest is within discretion of the court more likely on monetary damages with a clear amount, NOT on pain and suffering Post-judgment interest is routine (ILCS 2-1303 9% from date of judgment until date judgment is satisfied Liquidated damages: sometimes by K, sometimes by statute By K: if damages would be hard to calculate Not awarded if they are so high as to be a penalty Punitive : to punish for willfulness/malicious intent s often want to allege punitive because it opens up whole categories of evidence in discovery (ex., net worth or assets) In Illinois, cant plead punitive damages initially, have to show cause why you should be allowed to amend and add them (takes permission of court under 21207)

US v. Hatahley: the s were entitled to market value, or replacement cost, of their horses and burros as of the time of the taking, and the use value of the animals during the interim between the taking and the time they, acting prudently, could have replaced the animals Time for replacement by reasonably prudent person does NOT take into account the UNAVAILABILITY OF REPLACEMENT or the economic condition of the Horses are generally considered more of an economic commodity, use economic analysis Burden of proof is on to prove value; in barter economy, very difficult Also, pain and suffering is an individualized thing, cant get a class-action average pain and suffering Honda Motor Co. v. Oberg: said Oregons statute limiting judicial review of punitive damages is in violation of procedural Due Process BMW: although supreme court has reviewed several cases without saying award too large, in BMW said that extremely high awards of damages can be unconstitutional Violation of substantive due process Specific remedies: Ejectment, replevin courts of law In courts of equity constructive trusts, injunctions/failure to obey = contempt; specific performance Declaratory relief: Both state and federal allow for this Allows court to say what the law is Reverses roles becomes

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CIV PRO TUTORIAL Personal Jx: two ways to get (always the issue is jx over ) 1) consent 2) power/basis Traditional ways to establish jx (leading case Pennoyer v. Neff) Cardinal rules: deal with territory 1) All States have jx over persons and property within their territory 2) No States have jx over persons and property not within their territory Modern: International Shoe test Must have both of the following elements: 1) minimum contacts ( must have minimum contacts with forum state) 2) traditional notions of fair play and substantial justice (even with minimum contacts, assertion of jx must not offend this) NOTE: does not overrule old test is consistent because if you are present or own property, that satisfies minimum contacts, and since youre there, doesnt offend traditional notions Minimum contacts and traditional notions of fair play and substantial justice (Intl Shoe): A) Minimum contacts: 1) Nature and quality of the s contacts with the forum State 2) Systematic and continuous contacts? 3) Did cause of action arise in the forum state? 4) Did purposefully avail itself of the protection and benefits of forum States laws? (Hansen) B) Comports with traditional notions of fair play and substantial justice: each of parties has an interest and its a balancing test where does the weight of the concerns fall? 1) Burden on the (cost and convenience) 2) Forum States interest in adjudicating the dispute (usually States interest in protecting rights of its citizens usually ) 3) The s interest in obtaining convenient and effective relief (usually is inconvenient for to go elsewhere) 4) Interstate judicial systems interest in obtaining the most efficient resolution of the dispute (courts interest in efficiency) 5) Shared interest of the several States of furthering their fundamental substantive social policies (sort of a catch-all) Specific v. General jx:
A)

general jx: where the s contacts with the forum state are sufficiently substantial to support jurisdiction even over claims unrelated to those contacts Buzz words like continuous and systematic pursuit of general business activities

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Illinois is very likely to find jx Connolly: Belgian tires court adopted stream of commerce broad approach Mamder: subsidiary co. was being used by company to do work, and thats enough; even very tenuous corporate contacts are enough (towing barges on river) Williams: passive use of state transportation system is enough

B)

specific jx: relation between the s contacts and the claim on which the is suing (1) tort a) World Wide Volkswagen mere foreseeability of being haled into court was not enough unilateral acts of the are not enough b) Asahi: federal case which discusses stream of commerce (is a corporation who injects product into stream of commerce; sufficient minimum contacts and traditional notions of substantial justice and fair play One group of justices took broad approach (injecting into stream of commerce is enough), one group took narrow approach (injecting into stream of commerce is not enough) c) Illinois cases: Yates (location of activity) and Wimmer (bar on line) Last event doctrine: if last event too place in forum state, enough for jx Location of activity: where the tort takes place (what is the activity youre looking at where act or omission took place [lawyer sat on his butt in KY)

B) Contract 1) Burger King: substantial and continuous contacts: tied to the K (negotiations, formation and performance) knowingly over the course of time not random, fortuitous, or attenuated 2) Empress: voluntary initiation by coupled with partial performance in forum state is enough contacts 3) Chalek: passive buying is not enough (ask who initiated the act?) Internet cases: CompuServe: purposeful availment approach enough to allow jx Cybersell: not jx because of lack of purposeful availment (passively putting something out there is not enough) Try to find paradoxical cases which seem inconsistent so you can argue both sides; boils down to fundamental fairness as determined by minimum contacts, traditional notions, etc.

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28 USC 1391 Venue generally (a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any 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 (only if there are s from different states or if the subject of action is overseas) personal jx state boundaries b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship (ex. admiralty jx) may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all s reside in the same State

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(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, or (3) a judicial district in which any may be found (as opposed to a judicial district in which any may be subject to jx), if there is not district in which the action may otherwise be brought (more limited than (a)(3) in (a)(3) any district in the state) c) For purposes of venue under this chapter, a that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jx at the time the action is commenced. In a State which has more than one judicial district and in which a that is a corporation is subject to personal jx at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts. d) An alien may be sued in any district (also applies to alien corporations) e) A civil action in which a is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which: (1) a in the action resides (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) the resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party. The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought. a) A civil action against a foreign state as defined in section 1603(a) of this title may be brought: in any 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 a subject of the action is situated; in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605(b) of this title; in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603(b) of this title; or in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof.

(1) (2) (3) (4)

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Ill. 2-209: Act submitting to jx Process (a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jx of the courts of this State as to any cause of action arising from the doing of any of such acts: (1) The transaction of any business within this State; (2) The commission of a tortious act within this State; (3) The ownership, use, or possession of any real estate situated in this State; (4) Contracting to insure any person, property, or risk located within this State at the time of contracting; (5) With respect to actions of dissolution of marriage, declaration of invalidity of marriage and legal separation, the maintenance in this state of a matrimonial domicile at the time this cause of action arose or the commission in this state of any act giving rise to the cause of action; (6) With respect to actions brought under the Illinois Parentage Act of 1984, as now or hereafter amended, the performance of an act of sexual intercourse within this state during the possible period of conception; (7) The making or performance of any K or promise substantially connected with this state; (8) The performance of sexual intercourse within this state which is claimed to have resulted in the conception of a child who resides in this state; (9) The failure to support a child, spouse or former spouse who has continued to reside in this state since the person either formerly resided with them in this state or directed them to reside in this state; (10) The acquisition of ownership possession or control of any asset or thing of value present within this state when ownership, possession or control was acquired; (11) The breach of any fiduciary duty within this state; (12) The performance of duties as a director or officer of a corporation organized under the laws of this state or having its principal place of business within this state; (13) The ownership of an interest in any trust administered within this state; or (14) The exercise of powers granted under the authority of this state as a fiduciary (b) A court may exercise jx in any action arising within or without this State against any person who: (1) Is a natural person present within this state when served; (2) Is a natural person domiciled or resident within this state when the cause of action arose, the action was commenced or process was served; (3) Is a corporation organized under the laws of this state; or (4) Is a natural person or corporation doing business within this state (c) A court may also exercise jx on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States

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(d) Service of process upon any person who is subject to the jx of the courts of this state, as provided in this section, may be made by personally serving the summons upon the outside this state, as provided in this act, with the same force and effect as though summons had been personally served within this state. (e) Service of process upon any person who resides or whose business address is outside the US and who is subject to the jx of the courts of this state, as provided in this section, in any action based upon product liability may be made by serving a copy of the summons with a copy of the complaint attached upon the Secretary of State. The summons shall be accompanied by a $5 fee payable to the secretary of state. The plaintiff shall forthwith mail a copy of the summons, upon which the date of the service upon the secretary is clearly shown, together with a copy of the complaint to the at his or her last known place of residence or business address. Plaintiff shall file with the circuit clerk an affidavit of the or his or her attorney stating the last known place of residence of the last known business address of the and a certificate of mailing a copy of the summons and complaint to the at such address as required by this subsection. The certificate of mailing shall be prima facie evidence that the or his or her attorney mailed a copy of the summons and complaint to the as required. Service of the summons shall be deemed to have been made upon the on the date it is served upon the secretary and shall have the same force and effect as though summons had been personally served upon the within this state. (f) Only causes of action arising from acts enumerated herein may be asserted against a in an action in which jx over him or her is based upon subsection (a). (g) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.

ILCS 5/2-619 -- A section 2-6 19 motion provides a means of disposing not only of issues of law but also of easily proven issues of fact. . . . motions to dismiss under section 2-619 involve essentially a summary judgment procedure, but the differ from summary judgment motions in five important respects: a) they are defensive in nature and may be interposed only by a party who is opposing a cause of action b) they must be filed prior to that s answer c) they may not be used to contest the essential allegations of the complaint, but may be used only to assert affirmative matter d) they allow a determination of the motion on the merits even if there is a genuine issue of material fact raised by the affirmative matter as long as the party opposing the motion has not filed a jury demand e) they need not be accompanied by supporting material if the affirmative matter appears on the face of the complaint Section 2-619 allows for dismissal of an action based on one of nine specified defenses:

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(1)

(2) (3) (4) (5) (6) (7) (8) (9)

That the court does not have jurisdiction of the subject matter of the action, provided the defect cannot be removed by a transfer of the case to a court having jurisdiction. That the plaintiff does not have legal capacity to sue or that the defendant does not have legal capacity to be sued That there is another action pending between the same parties for the same cause That the cause of action is barred by a prior judgment That the action was not commenced within the time limited by law That the claim set forth in the s pleading has been released, satisfied of record, or discharged in bankruptcy That the claim asserted is unenforceable under the provisions of the SOF That the claim asserted against is unenforceable because of his or her minority or other disability That the claim asserted against is barred by other affirmative matter avoiding the legal effect of or defeating the claim

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