CIVIL PROCEDURE ESSAY #5. Morgan additionally asserted the following as damages: Blueprints: $20,000 Land Purchase: $20,000 Grading of Land: $20,000

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1 CIVIL PROCEDURE ESSAY #5. Morgan filed a claim in Federal Court in State A where he had his only residence, stating, inter alia, that Builders, Inc. had breached a contract to build his house. More specifically, Morgan asserted that Morgan had paid Builders, Inc., to make specific blueprints, purchase an acre of land, and begin grading of a suitable property. The blueprints were to be done in August, 2004, purchase of the land was to be finished by June of 2004, and the grading of the property was slated to be done by September of Morgan claimed that the above was not done adequately, and that he had been knowingly taken, because Builders, Inc., with foreknowledge, had no intent to complete their assignments, inasmuch as Builders, Inc., had a pattern of behavior to not complete their projects. Morgan additionally asserted the following as damages: Blueprints: $20,000 Land Purchase: $20,000 Grading of Land: $20,000 Builders, Inc. is incorporated in State B, and has manufacturing headquarters in States A and B, the largest being in State A. It has administrative headquarters in States A, B and C, with the largest office located in State C. Builders, Inc. asserted that while Morgan had talked with their representatives in State C in May of 2004, that they had never finalized plans. Builders also asserted that some paperwork was signed in State A in May of 2004, but that it was not pertinent to the present situation. Builders, Inc. was present in State A twice a year at a regional conference, in which they sought new business. After Builders, Inc., served their answer to the complaint, they filed a Motion to Dismiss citing: Lack of Sufficient Statement of Claim, Lack of Subject Matter Jurisdiction and Lack of Personal Jurisdiction. Builders, Inc., does agree, that Venue, Service, and Service of Process, were adequate. Morgan asked the Court if he could add another claim which stated that, Builder should have completed planting of trees by July Seeking damages for Planting of Trees: $20,000. The Statute of Limitations for actions of this type in Statesville is one year, while the Statute of Limitations in Federal Court is three years. Builders, Inc. wants to use the Statesville Statute of Limitations, while Morgan wants to use the Federal Statute of Limitations. Discuss.

2 1. BUILDERS, INC. MOTION TO DISMISS FOR INSUFFICIENCY OF THE COMPLAINT. NOTICE V. CODE PLEADING. FEDERAL RULES OF CIVIL PROCEDURE, 8. A plaintiff has an obligation to provide the grounds of his entitlement to relief in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. Under FRCP 8, a plaintiff must give a short and plain statement of subject matter jurisdiction, a statement of the claim, and their entitlement to relief. SUBJECT MATTER JURISDICTION. GROUNDS OF CLAIM. RELIEF. FRAUD, RULE 9. State with particularity.

3 2. BUILDERS, INC. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION. SECTION FEDERAL QUESTION. A federal courts has original jurisdiction over civil actions arising under the Constitution, laws, or treaties of the United States. SECTION DIVERSITY OF CITIZENSHIP. FULL / COMPLETE DIVERSITY. All plaintiffs and defendants must be domiciled in different states. DOMICILE. True, fixed, permanent residence. CORPORATIONS. State of Incorporation. Principal Place of Business. Corporate Muscle Test or Nerve Center Test. AMOUNT IN CONTROVERSY / JURISDICTIONAL AMOUNT. The amount in controversy must exceed $75K, irrespective of courts costs and interest. LEGAL CERTAINTY TEST. AGGREGATION OF CLAIMS.

4 AMENDMENT OF THE COMPLAINT / RULE 15. As of Right 21 Days After Service. Consent or By Leave of Court. Relation Back Doctrine. Same Transaction, Conduct or Occurrence. Freely given when justice so requires. JOINDER OF CLAIMS. Fine if Same Transaction, Conduct or Occurrence. ERIE DOCTRINE. A federal court sitting in diversity will use federal procedural law, and state substantive law. Statute of limitations, tolling of statute of limitations, choice of law and elements of claims or defenses are substantive law, and state law must be followed. For other issues, it is necessary to follow a process to determine which area of law to apply. Federal Law will Control where it Directly Conflicts with State Law. Where there is No Federal Law On-Point: Outcome Determination. Will applying or ignoring the state rule affect the outcome of the case? If so, it is probably substantive. Balancing of Interests. Does the federal or state system have a strong interest in having their rule applied. Avoidance of Forum Shopping. If a federal court does not follow state law on a certain point, will it cause litigants to flock to federal court? If so, then the federal court should probably follow state law, in order to prevent future litigants from forum shopping.

5 3. BUILDERS, INC. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION. Personal jurisdiction is the process whereby the federal court determines whether or not it may hail a defendant into court. LONG-ARM STATUES. The first step in a determination of personal jurisdiction, is to state whether a long-arm statute applies. States are free to determine the extent to which their long-arm statute will apply, up to a Constitutional standard. TRADITIONAL BASIS OF IN PERSONUM JURISDICTION. The second step is to determine if there is an absolute basis of in personam jurisdiction. In personam jurisdiction will exist where a defendant is domiciled in the state; where defendant is present and personally served with process in the state without fraud, trickery or force; where defendant consents to the suit in the forum state; or where defendant enters a general appearance in the suit. MINIMUM CONTACTS. Without a traditional basis of personal jurisdiction, we must turn to a minimum contacts analysis. CONSTITUTIONAL DUE PROCESS. Where there is no absolute basis of in personam jurisdiction, the Constitutional due process test must be met under a minimum contacts analysis. In other words, defendant must have such minimum contacts with the forum state so that the use of personal jurisdiction will not offend traditional notions of fair play and substantial justice. Over the years, the court has, through its holdings, stated that it will look to several factors in determining whether this principle has been violated. These are the purposeful availment of the party upon the jurisdiction, the foreseeability on behalf of the party that suit would be brought against them there, the relations between the suit at hand and the party's contacts with the jurisdiction, the state's interests in adjudicating the case, and the convenience, or lack thereof, to the party in adjudicating their case in that jurisdiction. QUANTITY AND NATURE OF CONTACTS. Purposeful Availment. Defendant must have purposefully availed themselves of the benefits and protections of the forum state, and it must have been foreseeable that they could be sued in the forum state. Foreseeability of Suit Could defendant have predicted that they might be sued in the forum state.

6 RELATEDNESS OF CONDUCT TO CLAIM. GENERAL. General jurisdiction exists were an out-of-state defendant has had systematic and continuous dealings with the forum state, and defendant may be liable for claims that involve activity outside of the forum state. SPECIFIC. Specific jurisdiction occurs where defendant has had only limited and sporadic contact with the forum state, but the cause of action arose out of that activity or specific act. INTEREST OF THE FORUM STATE IN PROTECTING ITS CITIZENS. A court will also look to how interested the forum state is in protecting the interests of its citizens in such wrongful behavior as was exhibited by defendant. FAIR PLAY AND SUBSTANTIAL JUSTICE. The notion of fair play and substantial justice looks to whether there are unreasonable burdens placed upon defendant in defending the claim in the forum state such that defendant will be at a severe disadvantage in defending the claim in the forum state. This is a judicial determination, and the court may decide that a situation which otherwise meets the minimum contacts standard, should not proceed due to undue prejudice to defendant.