Civ Pro

All Civ Pro Notes

Personal Jursidiction Broad Analsysis Steps

1. State long arm statutte

2. Constitutional Analysis:

   1. contact

   2. relatedness

   3. fairness OR general PJ

PJ Contact Analysis

must be sufficient minimum contacts:

• purposeful availment: voluntary act by D to avail themselves to forum

• foreseeability: it is foreseeable that D could be sued in the forum

PJ Relatedness Analysis

the harm “arises out of or relates to” D’s conduct with the forum

~did D’s contact cause the harm to P~

• if yes: move onto fairness

• if no: not Specific PJ → test for General PJ

General Personal Jursidiction

exists if D is “at-home” in forum; or served with process in forum state

• “At-home”

  • Human = where D is domiciled

  • Corporation = place of incorporation AND principal place of business (“nerve center”)

PJ Fairness Analysis

Last step of specific PJ

“would PJ be fair/reasonable under the circumstances”

Balance: States interest vs P’s interest

State’s interest in having PJ over a Defendant

to provide justice for its citizens

Types of cases ONLY federal courts can hear?

bankruptcy, patent, fed securities, antitrust

Diversity requirements

1) complete diversity of citizenship (or alienage)

2) amount in controversey exceeds $75k

Complete Diversity of Citizenship

means any plaintiff cannot be a ctizien of the same state as any defendant

alienage diversity

counts as diveristy if a citizen of a Us state is on one side and a citizen of a foreign state is on the other

How is citizenship for diversity jursidiction determined?

For individuals and corporations: Domicile

For unincorporated Associations (Partnerships, LLC): citizenship of all members retained

For minors, dead ppl, incomp: look @ their own domicile still

For class actions: domicile of class rep.

Domicile

retained until achieve both

1) physical presence in the state

2) intent to make new place home for indefinite future

For Business:

1) place of incorporation; and

2) singular place of P.P.B. → nerve center - usually HQ

75,000k requirements in diversity

• must be alleged in good faith on a well-pleaded complaint

• only consider claim itself and if it’s available to a legal certainty

• any single P can aggregate claims against a single D

• if request an injunction or requitable relief look to estimated $ value of it

Which cases are excluded from using diversity jurisdiction?

divorce, alimony, child custody, actions to probate (trusts) an estate

Federal Question Jurisdiction requirements

P’s claim in a well-pleaded complaint must “arise under” federal law

~ask if P is enforcing a federal right~

Removal and procedure for it

D may remove a case from state court to federal court

Steps D must take:

Within 30 days after service of the 1st paper showing case is removable (usually service of process)

1) file “notice of removal” in federal court w/ grounds

• attaching all docs served to her in state court

2) promptly serves copy of the noice of removal to:

• adverse parties

• state court

~all D must join in the removal~

Does federal court have discretion to deny removal

No (?)

Removal Limitations

In Diversity Cases:

• D cannot remove if he is a citizen of the current forum state (state court)

• D cannot remove if more than 1 year has passed since filing in state court

  • relevant if claim against a D preventing diversity is dismissed

How is a court chosen after removal?

The district court “embracing” the state court where the case was filed will be chosen

DOES NOT MATTER if its considered improper

Remand

when fed court decides a removal was improper and sends the case back to state court

• if for reason other than lack of SMJ then it must be within 30 days after filing the notice of removal

Supplemental Jurisdiction

form of SMJ to get claims into federal court

requires a base case that already has SMJ to attach to

NOTE: FED COURT MUST HAVE SMJ OVER EVERY CLAIM

Steps to Check for Supplemental Jurisdiction when you want to add a claim to a case

1) Is there diversity J or federal Q J over this new claim? If no →

2) Is there supplemental J over this new claim?

1. Does it share a common nucleus of operative fact with the base case claim?; and

2. Does a limitation apply? - Diversity; P claim

   • Does the limitation exception apply?

Supplemental J Limitation

A new claim is not allowed in under ONLY Supplmental J if:

• the OG case is here due to diversity

• This new claim is asserted by P

UNLESS:

• P1 meets 75k and P2 does not

Supplemental Jursistion main test

sharing “common nucleus of operative fact” with OG base claim

Does a court have discretion to decline a supplement J claim?

Yes, if too complex or state law issues would dominate the case

Venue

Determined WHICH federal district court a case should be in

Proper Venue

Any district where:

1) ALL defendenats reside- just need to share state not the actual area (“Residential Venue”) ; or

2) Substantial part of the claim arose; or substantial part of the property invovled is located (“Transactional Venue”)

• if non-US resident, then any is ok for residential venue

IF CASE COMES FROM REMOVAL:

• only proper in district embraching the state court it was in

Reside for venue purposes

Humans = domile

Business = all districts where they’re subject to PJ

Venue Transfer when prior was Proper

• only allowed to transfer within the same judicial system

• Allowed to transfer to any proper venue

  • D must bear burden of persuading court weighting private and public factors

    • Private: convenient, facts of case

    • Public: which community burdened, which law applies, keep it local

Venue Transfer when prior was Improper

Court has discretion to transfer OR dismiss

New proper venue’s choice of law applies

Choice of Law when transfer from proper to proper venue

Federal Laws govern the transfer

• laws of prior proper court will apply

• UNLESS transfers was due to a valid forum selection clause → then new court rules

Forum selection clause

Federal Law applies to transfers invovling this clause

Federal Law enforces valid forum selectrion caluses as long as they are not unreasonable

Only consider public interest factors in this transfer

Forum Non Conveniens

if there’s a better court that’s the center of gravity for the case, but it’s in a different judicial system, then the court will invoke FNC which will either (1) stay or (2) dismiss the case so P can go sue in another court

• court can impose conditions on party seeking transfer

• court will weight private vs public factors

• other court must be adequate and available

  • usually always adequate unless P can straight up not get any remedy there

Erie Issue

Looks at which law will apply in federal court → state or federal law

Eries Steps

1) Is there federal law that is on point that directly conflicts w/ state law? (If yes apply fed law b/c supremacy clause)

2) Is the issue to be decided “substantive” or “procedural? (Substantive = state; procedural = fed)

• If unclear which→ judge will weight factors to determine if substantive

How to determine if a issue is “substantive” for Erie purposes?

a) Outcome determinative: would applying or ignoring the state rule affect the outcome of the case? (yes = substantive - use state)

b) Balance of interests: Does either the fed or state system have a strong interest in having its rule applies? (greater interest wins)

c) Avoid forum shopping: If fed court ignore state law on this issue, will it cause parties to flock to fed court? (if yes - use state)

“Substantive Issues” on their face

State law applies when:

1) Conflict/Choice of Law rules

2) Elements of a claim or defense

3) Statutes of limitations

4) Rules for tolling stattutes of limitations; and

5) Standard for granting a new trial based on jury dmgs being excessive or inadequate

Which law governs preclusion?

Federal common law unless it’s a diversity case then state law

Notice

D is entitled to notice and must be served - which includes

summons + a copy of the complaint = “process”

Who can serve process?

Anyone @ least 18 and not a party to the case

When must process by served?

w/in 90 days of the filing of the complaint

which may be extended for good cause

Fed Rules: How is process served? (INDIVIDUALS)

for individuals:

• personally served anywhere

• substitute @ usual place of abode w/ someone who resides there and is of suitable age and discretion

• service on D’s agent if in scope of agency

• state law methods allowed for

  • state where forum sits and

  • state where service occurs

Fed Rules: How is process served? (CORPORATIONS)

for corporations:

• delivering to an officer or managing/general agent

• state law methods allowed for

  • state where forum sits and

  • state where service occurs

Fed Rules: How is process served? (Minors/Incompetents)

ONLY:

• state law methods in state where service occurs

Waiving Service of Process

1) P can send notice w/ request to waive service

• must include 1 copy of complaint; 2 copies of waiver forum w/ prepaid return

2) Waived if D executes waiver within 30 days (60 if outside US)

3) P must then file waiver in court for effectiveness

Effective of waiving or not waiving service

Waiving:

• gives D 60 days to respond instead of ordinary 21 days

Failure to Waive:

• D must pay cost of service unless had good cause

• must respond within 21 days

What commences an action in federal court?

Filing a complaint

Complaint components

must contain:

1) statement of grounds of SMJ

2) short and plain statement of the claim showing that the P is entitled to relief; and

3) demand for relief sought

NOT NEEDED:

• grounds for PJ or venue

Complaint detail requirements

P must plead sufficient facts to support a plausible claim

• can be disputed by D with Rule 12(b)(6) motino to dismiss for failure to state a claim

When does a complaint need special pleading requirements?

fraud, mistake, and special damages require more detail with particularity or specificty

How can/must D respond to a complaint?

Rule 12 requires response by either:

1) by motion

2) by answer

w/in 21 days (or 60) after service of process (or waiver)

Motions as a response to complaint

Rule 12 motions are not pleadings they are requests for a court order

Include:

1) 12(e) motion for more definite statement: complaint too vague

2) 12(f) motion to strike: ask court to remove redundant/immaterial things from a pleading

WAIVED Defenses under Rule 12(b)

These are waived if not put in first rule 12 repsonse (EITHER motion or answer)

MUST PUT THESE IN FIRST RESPONSE IF WANT THEM

• Lack of PJ

• Improper Venue

• Improper Process (problem w/ papers); and

• Improper Service of Process

Anytime defenses under 12(b)

NOT WAIVED issues under 12(b):

• can be made as late as trial:

  • failure to state a claim

  • failure to join an indispensable party

• can be made anytime

  • lack of SMJ

    • if this is true, court must dismiss or remand case

When must D serve Answer

D must serve answer either as first response OR

w/in 14 days after notice of denial of a rule 12 motion to dismiss

Answer MUST

Answer is a pleading

Must:

1) Response to allegations in the complaint; either by

• admit,

• deny, or (failure to deny is admission)

• insufficient knowledge if answer is NOT in her control

2) Raise Affirmative Defenses

• Injects new facts into case like

  • Statute of limitations;

  • State of Frauds;

  • res judicata (claim preclusion);

  • self-defense

• All Rule 12(b) defenses can be pleaded as affirmative defenses

Does a P need to respond to an answer?

No, allegations in D’s answer are deemed denied

Amended Pleadings Options

4 options

1) P and D Right to Amend ONCE

2) Can ask court to Amend

3) Variance (evidence not matching)

4) Amend after Statute of Limitations runs out

P and D’s right to amend pleadings

1) Right to Amend ONCE

• P has right to amend once, w/in 21 days after D’s 1st response

• D has right to amend once, w/in 21 days of serving it

  • if 1st response was answer: can add waived defenses

  • if 1st resonse was motion: out of luck, waived stuff is gone

Court Amending Pleadings

Can ask court to Amend- they will “if justice requires”

• factors: lenght of delay, prejudice to other party, futility og amendment

Variance

right to amend pleading if pleaded X but then @ trial the evidence doesn’t match X pleading BUT can only amend if the other party doesn’t object at trial

Amending after Statute of Limitations runs out

Can amend pleading

1) To join a claim not originally asserted;

• but only for things “relating back” to the original

• if new concerns same conduct, transaction, or occurance as OG

2) To change a defendant;

• only when P sued the wrong D initially AND

• the right D knew or should have known about it w/in 90 days after filing the first complaint

Supplemental Pleadings

Used for setting forth claims/things that happened AFTER pleadings were filed

Rule 11

Signature Requirement that applies to all papers except discovery

• When a L signs documents, she certifies them to the best of her knoweldge and belief after reasonable inquiry that;

  • paper is not for improper purpose

  • legal content warranted and non frivolous; and

  • there’s is or likely to be evidentiary support

• “Continuing certification” : These assertions are also made everytime L presents position in court

Sanctions purpose, to who, and what type

meant to deter not punish

can be imposed against a party, the L or L’s firm

usually non-monetary but if monetary often pay to court

Sanctions Requires

the sanctioned party must have opportunity to be heard

Safe Harbor: must serve party w/ motion 1st then give 21 days to fix before file motion w/ court

Joinder looks at

how many parties and claims can be joined into one case

every claim must be SMJ

Claim joinder by P

P can join any additional claim against the adverse party even if unrelated to OG claim

BUT MUST HAVE SMJ

When can multiple P’s join their claims in one suit?

When can multiple D’s be joined under one suit?

claims by multiple P’s or against multiple D’s must:

1) arise from the same transaction or occurance; and

2) raise at least one common question of law or fact

must all have SMJ though

Necessary/Indispensible Parties

court can force a non-party (absentee) to join a case by asking:

1) is the absentee necessary (or required)?

2) If Necessary, can they be joined?

3) If can’t be joined, can case proceeed anyways?

How to determine if absentee is necessary

Necessary if any of these true:

a) w/out them court can’t accord complete relief among existing parties;

b) their interests will be harmed if not joined; or

c) they claim an interest that subjects a party to risk of multiple oblligations

~ joint tortfeasors are never necessary ~

How to determine if a necessary party can be feasibly joined

Feasible if:

1) there is PJ over them; and

2) fed SMJ over the claim by or against them

PJ can either by traditional or will exist if they are served in the US and not more than 100 miles from court

How to determine how a case will proceed if a necessary party can’t be joined

Proceed or dismiss based on factors:

a) alternative forum available?

b) actual likelihood or harm to absentee? and

c) can court shape relief to avoid that harm

If dismiss a case becuase a necessary party could not fesaibly be joined, what is that absentee called?

indispensible

Counterclaims: define + types

Claims D makes against P

Can be either:

1) Compulsory: when it arises from the same T/O as P’s claim → must file or it’s waived

OR

2) Permissive: does not arise from same T/O as P’s claim

Can choose to join or sue separately

Cross-claims

claim against a co-party

• must arise from same T/O as underlying action

How long does P have to respond to a counterclaim?

P must respond in 21 days of service of counterclaim

Impleader

when D (now a 3rd party P) brings in a new party (now the third party D)

• used by D to shift liability for P to new TPD

• can get TPD to pay for all (indemnify) or some (contribution) of own liability

• permissive; can be separate suit

Impleader Process

MUST DO w/in 14 days of serving answer → or get court permission

1) D files a 3P complaint naming TPD

2) complaint formally served on TPD

3) after TPD joined → P or TPD can assert claims arising out of same T/O as underlying case

SMJ STILL REQUIRED

How can a court have PJ over a TPD?

Either traditionally or served in 100 miles of court

Is a TPD a plaintiff for SMJ purposes?

no~ so limitation won’t apply if they’re asserting something in diversity case

Intervention + types

When a non-party inserts self into the case

• must intervene in “timely” fashion

Allowed under either:

a) “Of Right”

b) “Permissive”

Of Right Intervention

her interests will be harmed if not joined and interests not adequately repped by the current parties

“Permissive” Intervention

her claim/defense and pending case have at least 1 common Q of law and fact

• discretion of court to allow in

Interpleader

when someone is in possession of property (”stakeholder”) and know people think that property is actually theirs → so they can force all those claimants into 1 case

Can either do:

1) Rule 22 procedure

2) Statutory procedure

Rule 22 Interpleader

Can be used when either:

a) the stateholder and all claimants have complete diversity and

b) >75k

OR

Federal Question

Statutory Interpleader

Can be used when either:

a) there’s diversity between ANY 2 claimants and

b) $500 or more in issue

Class Action requirements

Need all 4:

1) Numerosity: there’s too many class members for practicable joinder

2) Commonality: there’s some issue in common all ALL members and a resolution will generate an answer for all

3) Typicality: rep’s claims are typical of the claims of the class

4) Adequate Rep: rep will fairly and adequately rep the class

Types of Class Actions

1) Prejudice: class necessary to avoid harm to either class members or non-class party

2) Injunctive or Declaratory Relief: requested relief not dmgs

3) Common Q or Damages: ex. mass torts

• common Q predominates over indiviual questions; and

• class action superior method to handle the dispute

How court certify a Class

court must:

• define the class and their claims, issues and defenses; and

• appoint class counsel, who must fairly and adequately rep the interests of class

Cert can be appealled right away

when is notice to a class required?

Only for Common Q or Damages class (mass torts)

Notice provides class members:

• can opt out (not allowed for other class actions btw)

• will be bound by judgment if don’t opt out

• can enter a separate appearance through counsel

Settlement of Class Actions

only allowed w/ court approval

ALL 3 types must give notice to members to get feedback on whether to settle or dismiss

Class Type 3: might require second notice for chance to opt out

SMJ Class Actions

Look @ class rep

OR use Class Action Fairness Act

Class Action Fairness Act (CAFA)

gives separate SMJ if:

• at least 100 class members

• any class member is diverse from any D

• aggregate of claims exceed $5 million

Who can remove a class action case?

ANY one Defendant

Discovery

phase of litigation in which parties find out what other parties and Ws know

Initial Required Discovlsure in discovery

w/in 14 days of Rule 26(f) conference:

1) ID of persons w/ discoverable info who party may use to supoprt claims/defenses

2) Documents and Tangible things Party may use to support claims/defenses- including ESI (electronically stored info)

• but if docs and things are not in party’s control no need to disclose

3) Computation of amount of Relief requested supported through docs

4) Insurance coverage that may cover part/all of judgment

What happens for failure to disclose required material?

Party cannot use undisclosed material in case UNLESS failure was substantially justified or harmless

Expert Witness Required Disclosure about

1) ID of EW

2) Written Report prepared by EW- which must include

• opinions EW will express

• bases for opinions

• facts used to form the opinions

• EW’s qualifications; and

• how much EW is being paid

Consulting Expert

expert hired to help prep a case but not going to testify at trial