CIVIL PROCEDURE I. Introductory Material Due process requires an opportunity for hearing before a deprivation of property can take place

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1 CIVIL PROCEDURE I. Introductory Material A. Opportunity to be Heard 1. Fuentes v. Shevin Under FL law, Fuentes s stove and stereo were seized by the sheriff when she defaulted after paying $400 on a $600 installment contract Due process requires an opportunity for hearing before a deprivation of property can take place A statute allowing a creditor to obtain repossession of goods before a hearing violates due process where it (1) allows repossession merely on the creditor s conclusory statement that he owns the property (2) provides for a write of possession issued by a clerk rather than a judge (3) does not provide for an immediate post-repossession hearing 2. Mitchell v. W.T. Grant court upheld a LA sequestration procedure that provided for dissolution of the writ upon the debtor s request, unless the creditor could prove his grounds and post a bond No one in the Fuentes majority voted for the result in Mitchell. In LA the creditor at least needs to present reasonable evidence. In FL, a reasonable argument does not need to be put forward. But a statute allowing repossession by a creditor will be valid if it requires presentation of specific facts about the claim, requires that the facts be presented to a judge rather than a clerk, and provides for an immediate post hearing at which the D can present the case 3. North Georgia Finishing, Inc. v. Di-Chem, Inc. a GA garnishment procedure was struck down because there was no hearing, no notice, and the debtor could recover his property only by posting a bon for the debt amount A D s bank account may not be attached unless he is given the right to argue against the attachment either before it occurs or immediately after Mitchell seems to be methodically superior because it recognizes interest on both sides. Gives significant protection and isn t too costly against whom it operates. <<How to think about a procedural question: 1. If feel in my heart this D should get a better deal (not intellectually satisfying). 2. How strong an interest does the P have in receiving this procedural benefit. 3. Is the D s interest being protected? 4. How much good does this enhanced procedural produce better results. >> II. Getting the Defendant Into Court A. Personal Jurisdiction Minimum Contacts Test 1. Pennoyer v. Neff Neff brought suit in federal court to recover possession of a parcel of land purchased at a sheriff s sale by Pennoyer (Old Rule) For a court to obtain valid personam jurisdiction over a D, it was absolutely necessary that the D be served with process with the state in which the court was sitting

2 2. Hess v. Pawloski A former MA statute held that MA had jurisdiction over anyone who operated a motor vehicle within the state, on the grounds that such a person could be said to have impliedly consented to jurisdiction by the act of operating the vehicle 3. International Shoe, Inc. v. Washington (minimum contacts test) state of WA sought to collect unemployment taxes based on commissions paid by the firm to its WA-based salesmen Minimum Contacts Standard Jurisdiction is valid whenever a D s contacts w/in the state are such as to make it reasonable and just and not offensive to the traditional notions of fair play that the D be forced to defends within the state B. Long Arm Statute 1. Gray v. American Radiator Corp. (?) Titan (an OH co) makes valves which it sells to another company which incorporates them into a boiler which it sells to P; the boiler explodes in IL, injuring a P who sues Titan in IL; the IL long arm allows suit in IL based upon a tortuous act within the sate. in law the place of the wrong is where the last event takes place which is necessary to render the actor liable. 2. World-wide Volkswagen Corp. v. Woodson VW manufactured in NY but fatal injury occurred in OK P sue NY, but attempt to sue in OK court Certainly the mere fact that a product made out of state has found its way into the forum state, and has caused injury there, is not sufficient for the assertion of jurisdiction under Volkswagen. However, the majority opinion in Volkswagen noted that jurisdiction in permissible 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. If the defendant in Gray had reason to expect that IL customers would buy a product containing its valves, Gray may survive the Volkswagen decision. Court distinguishes b/t a product being sold in the state (Gray) rather than just winding up there in this case D had done nothing 3. Keeton v. Hustler Magazine, Inc. D s contacts w/ the forum state (NH) consisted solely of the circulation there of from 10-15,000 copies per month of its mag; P who was not a resident of NH and had not other contacts with it, claimed that articles in Hustler injured her reputation in NH and elsewhere The Court found that there was jurisdiction because the cause of action arose out of the very activity being conducted in part in NH. Noted that D s activities in the forum may no be so substantial as to support jurisdiction over a cause of action unrelated to those activities << Must satisfy: 1. Activity (some times referred to as minimum contacts test) Activity relation purposeful 2. Balancing (reasonableness test)

3 >> 4. Kulko v. Superior Court SC held that a father residing in NY does not acquire minimum contacts w/ CA merely by permitting his minor daughter to go there to live with her mother Did not avail himself of the benefits of the state Though CA state interest in making sure minors are provided for, legislation in place to allow wife to obtain NY adjudication 5. Burger King Corp. v. Rudzewicz SC held that the courts of FL could constitutionally exercise jurisdiction over a MI resident who had signed a franchise contract with a FL franchiser, even though the franchise was operated in MI Once min. contacts are established, it is presumed that the forum is fair unless D proves that the forum is fundamentally unfair (BK D failed to do so and had to defend in FL) o D was not unfairly surprised by being required to defend in FL against a suit; both contractual provisions and the course of dealing should have put D on notice that the franchise relationship would be supervised from FL 6. Asahi Metal Industry Co. v. Superior Court Zurcher lost control of his motorcycle while riding in CA, and was seriously injured. He brought a products liability suit in CA state court, claiming that the cycle s rear tire and tube were defective. Asahi made no direct sales in CA, had no offices or agents there, and did not control the system of distribution that carried its products into the state Majority believed that Asahi had minimum contacts with CA because it put its goods into a stream of commerce that it knew would lead many of them to that state Despite MC, it would be unreasonable and unfair for CA to hear the case because (1) the burden to A of defending in a foreign legal system (2) the slenderness of CA s and Cheng Shin s interest in having the indemnity claim heard in CA; and (3) the strong federal and state interest in not creating foreign relations problems by deciding an indemnity claim between two foreign Ds. <<NOTES: In order to consider reasonableness of practicing personal jurisdiction, it has to consider several factors: 1. Burden on the defendant 2. Interests of the forum state 3. Plaintiff s interest in obtaining relief 4. Shared interest of the several States in furthering fundamental substantive social policies>> C. General Jurisdiction and State Long-Arm Laws 1. Perkins v. Benguet Consolidated Mining Co. D was out of state mining company in Philippines, during WWII the president returned home to OH, where

4 he maintained an office and did business on behalf of the co, the P was suing for dividends she claimed the company owed her based on its profits from its Philippine operation (the cause of action did not involve the OH activities) The court held that where the cause of action does not arise from business done within the forum state, Constitutional due process requires that the instate business actually conducted be so systematic and continuous as to make it not unjust that the corporation be forced to defend a suit there. 2. Helicopteros Nacionales de Coombia, S.A. v. Hall- Columbian corp in the business of providing helicopter transportation in South America for oil construction companies signed a contract to provide such services to Consorcio. Ps were estates of employees of Consorcio who were killed when a helicopter supplied by and piloted by D crashed in Peru Single trip to negotiate was not a contact of a continuous and systematic nature The Wrongful death claims did not arise out of the D s in-tx activities; those activities were not of a continuous and systematic nature Establishes that where the claim does not arise out of the d s in-state activities, the mere fact that the purchases been made by the D in the forum state, even if they have occurred regularly will not be sufficient to establish the requisite mere contacts Mere purchases even if occurring at regular intervals are not enough to warrant a State s assertion of in personam jurisdiction over a non resident <<General jurisdiction where you look for the type of contacts that will allow you to sue on extensive contacts; specific jurisdiction only requires an isolated contact>> D. Jurisdiction Based Upon Power Over Property 1. Tyler P argued that a land registration proceeding which registered land in the name of a third person violated P s due process rights, since he was not personally notified; the in rem proceedings in question provided for notification by mail to all persons known to claim an interest in the land, and for newspaper publication announcing the proceedings in the hopes of reaching known claimants Constitutionally upheld b/c must get rid of unknown as well as known claims 2. Harris v. Balk Harris (NC resident), owed money to Balk (also NC resident). Epstein (MD resident) claimed Balk owed him money. Epstein garnished Harris debt to Balk by serving Harris with process in MD. This furnished the MD court w/ quasi in rem jurisdiction to consider Balk s debt to Epstein, and to satisfy a possible judgment in Epstein s favor Obligation of a debtor follows him, court may assert jurisdiction over debtor as long as it personally serves him

5 3. Shaffer v. Heitner P owner of one share of stock in Greyhound, a DL corp w/ principal place of business in AZ, filed a shareholder s derivative suit against Greyhound and 28 officers Overturns Harris requires min. contacts b/t debtor and state for jurisdiction to exist Since P failed to allege any of the types of contacts required by constitutional minimum contacts standards, DL cannot exercise jurisdiction over the case Full Faith and Credit Clause would allow P (in the event D moved assets to where no in personam jurisdiction) to bring an in personam suit where the D resides regardless of the presence of his assets and then after recovering judgment sue to enforce that judgment in the state where the assets are E. Jurisdiction Based on Physical Presence 1. Burnham v. Superior Court P brought suit for divorce in CA state court against her husband D from whom she had been sepatated for 18 months, D a resident of NJ, was served in CA while visiting on business Presence in state is grounds for that state s jurisdiction (b/c doesn t violate traditional notions of fairness) F. Expanding Personal Jurisdiction 1. Milliken v. Meyer Meyer was domiciled in Wyoming and was served in CO, pursuant to a WY statute allowing out-of-state service on a resident defendant who has attempted either to escape his creditors or to avoid being served process DOMICILE IS ALWAYS ENOUGH 2. NOTE: The SC in Shaffer held it would be unfair to make the D personally liable in the forum state merely because he was domiciled there, if he has subsequently moved his residence somewhere else but has not established a new residence. G. Jurisdiction Over Parties or Property (Consent) 1. M/S Bremen v. Zapata Off-Shore Co. Zapata- London-American trae relationship, US can be brought before London jurisdiction as provided in a forum selection clause- jurisdiction by consent It has always been permissible for P and D to consent to jurisdiction in a particular forum state in advance of litigation, provided that there is no overweening on the part of the stronger party. 2. Carnival Cruise Lines, Inc. v. Shute P receive tickets issued by D state that any dispute in connection with the trip shall be litigated if at all in and before a Court located in the State of FL. Injury occurs in Mexico. A dispute forum clause will be enforced when it is reasonable and satisfies requirements of fundamental fairness

6 H. Personal Jurisdiction in Federal Court 1. DeJames v. Magnificence NJ citizen brought suit under the admiralty jurisdiction to recover damages for personal injures suffered while working abrad the vessel was moored at a pier in Camden, NJ Usually fed. Court uses the LAS of the state Rule 4(k) however if ther is not state LAS, then Congress has enacted some statutes that allow nationwide service and effectively supercede R. 4K Rule 4(k)(1) Authorizes the federal court to reach only as far as the forum state could under the Fourteenth Amendment and the state s long-arm provisions. <<Rule 4 (K) (1) (a) Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a D (a) who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located or >> I. Challenging Personal Jurisdiction 1. FRCP 12 (b) Lists the defenses that may be raised either in the answer, or by motion Lack of jurisdiction over the subject matter Lack of jurisdiction over the person Improper venue Insufficiency of processes Insufficiency of service of process Failure to state a claim upon which relief may be granted Failure to join a necessary party under Rule FRCP 12(g) Consolidation of Defenses If a party makes a motion under this rule but omits there from any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) 3. FRCP 12(h) sets out premise of time requirements for defenses; *consult rule but most must be made before trial except defense of a lack of subject matter jurisdiction which can be made after the trial 4. Special appearance = appear to contest jurisdiction only (if you argue merits, you waive right to contest jurisdiction) No equivalent appearance in federal court, however similar to R. 12gmove for defect of jurisdiction as a defense (12b lists lack of jurisdiction as a defect); if fail to do so, you waive this defense R. 12h J. Challenging a Court s Exercise of Jurisdiction Over the Person or Property 1. Baldwin v. Iowa State Traveling Men s Ass n D makes a special appearance in MO DC, loses on his jurisdictional objection, then declines to answer. A

7 default judgment is entered against him. P then sues in IA DC to enforce the judgment. D raises the jurisdictional objection again. Generally, if the D makes a special appearance contesting the jurisdiction of the first forum and he loses he may not later contest the same issue in a later suit. Once you appear before court and contest jurisdiction-the ruling as to jur. is binding. One can choose not to appear, but risk default judgment which will be binding OR appeal to SC and take chances there. II. Notice and Service of Process A. The Requirement of Reasonable Notice 1. Mullane v. Central Hanover Bank & Trust Co Bank administered numerous small trust fund and wished to settle the year s accounts for the funds, which it had pooled together for investment purposes; the court appointed Mullane to represent all those who had an interest in trust funds *the only notice given to the beneficiaries of the trust funds was through a newspaper announcement where the names and address of those effected are known, notice by publication is unacceptable Actual notice is not required: all that is required is notice reasonable calculated under all circumstances, to apprise interested parties of the pendency of the action Court used a balancing test and held that the expense of notification by mail, the availability of names and addresses of beneficiaries, were factors to be taken into account in determining whether publication was sufficient notice 2. Dusenbery v. United States notice arrived at prison, FBI didn t have to make sure inmate actually got it- the method was reasonably certain the court says that actual receipt is not required reasonable means to contact them is enough (even though it might not succeed) 3. FRCP 4 Governs many of the technical aspects of federal court jurisdiction over the parties; note 4f: foreign service is made by whatever means is legal in that nation D. Waiver of Service 1. Maryland State Firemen s Association v. Chaves - Complaint was filed on Jan. 2, on March 4, MSFA filed a Motion for Judgment by Default. March 11,Clerk entered default judgment. They sent by 1 st class mail to the Δ. There was no acknowledgement by the Δ, even though the lawyers spoke to each other, so service was not valid. applies the strict rule; service was improper Service of process must be effective under the Federal Rules of Civil Procedure before a default or a default judgment may be entered against a Δ.

8 A P must strictly comply w/ service provisions, even if D has actual notice of lawsuit C. Service on a Person Residing n D s Dwelling House or Usual place of Abode 1. Rovinski v. Rowe service mailed to his mother s house sufficient Argued it wasn t his dwelling according to FRCP Rule 4 (e)(2), but court s construe the rule liberally. Rule 4 (e)(2) service can be made to the individuals dwelling house or usual place of abode and left w/ some person of suitable age and discretion then residing there Policy R/L everyone must be reachable if you didn t have a reliable address judgment wouldn t be able to be rendered against you, no heroic efforts to contact you are required D. Service on Artificial Entities: Corporation, Partnerships, and Unincorporated Associations 1. Insurance Co. of North America v. S/S Hellenic Challenger US marshal deposited the summons and complain with a claims adjuster at the office of defendant who was not expressly authorized by D to accept process, agent forgot to give it to the appropriate person, but upheld Court says that service was proper b/c 4h does not require rigid formalism, so as long as the individual is in a position to render the service fair and reliable and reasonably calculated to alert Δ to initiation of process, OK. Rule 4(h): service on corporations and associations by delivery to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service o D. Etiquette of Service 1. Wyman v. Newhouse P sued D to recover money loaned, money advance, and damages for seduction under promise of marriage; D was induced to enter the jurisdiction of the court by a letter from the P an old friend of D to the effect that P s mother was dying in Ireland, that P was dropping all charged against D, and that P could not bear to leave the US w/o once more seeing D Court said that inducing someone to enter jurisdiction by fraud is not justifiable and will not be upheld. Note: Courts do not have reservations about the method of service when the D is already within the jurisdiction of the court but is hiding from suit. III. Federal Subject-Matter Jurisdiction A. Federal-question Jurisdiction (Types of Cases Court can Hear) 1. Rule 28 USC 1331 DC has original jur. of all civil actions arising under Con. Laws or treaties of US 2. R. 28 USC 1337 DC also over has jurisdiction over actions arising under any Congressional Act regulating commerce

9 3. 28 USC 1442 against federal officers 4. Louisville & Nashville R. Co. v. Mottley Ps claim in a federal suit that D breached its agreement to give the Ps free passes in return for their release of tort claims against it (federal statute recently passed which prohibites the giving of such passes), Ps anticipating that D will riase the federal statute as a defense, assert in their complain that the statute does not apply to their case, D raises federal statute as a defense No federal question jurisdiction exited, because the federal statute was no essential to the P s cause of action It is not sufficient that the complaint mentions some anticipated defense and asserts that the validity of the defense is governed by federal law 5. Smith v. KC Title & Trust Co. Federal jurisdiction relief from the state depends on the construction or application of the Con. Or laws of the US 6. Moore v. Chesapeake Federal jurisdiction does not extist if the suit is brought under a state statute, requires construction or application of fed. Law, but does not have diverse parties (contradicts Smith, Moore) 7. Merrell Dow Pharmaceuticals Inc. v. Thompson A state law action that also alleges a violation of a federal statute, comes under Fed. Jur. only if Congress intended to provide a federal remedy <<Hypo: Levin and LaPierre bet $20 about whether supreme court will uphold AA in MI. Levin brings suit in LaPierre to recover. No federal question. No diversity of citizenship Does the federal question have to be the central theme? Smith - State created federal action that turns on a federal law (contradicts the Moore case), suggests you would have federal jurisdiction. o Smith didn t follow the Holmes test. >> Holmes test: a suit arises under the law that creates the cause of action B. Diversity Jurisdiction USC 1332: provides for original jurisdiction in federal DC of all court actions that are b/t citizens of different states or citizens of a state and citizen of a foreign state and in which the amount in controversy is more than $10,000 Note: For a court to exercise diverse jurisdiction, there must be complete diversity among the parties; that is, no party on one side may be a citizen of the same state as any party on the other side 2. Mas v. Perry P was treated by the court as still being domiciled in MS, even though she had subsequently moved to LA and then IL, and did not intend ever to return to MS. Break w/ traditional rule- a wife s domiciliary is not necessarily that of her husband, party must be completely diverse, one is still a domiciliary of his home state until one asserts that domiciliary is elsewhere

10 <<What is the operative test to tell you when you have changed your domicile? You would need to physically there and say this really feels like home. * you must have both to establish domicile >> 3. Notes: R no fed jurisdiction when such jurisdiction is obtained improperly or collusively made or joined Only formal parties to the suit must be diverse, nominal members are immaterial R a corporation s home jur is wherever the corp was incorporated and where its principle business is C. Jurisdictional amount USC 1332(b): In addition to diversity, jurisdictional amount requirement of $75K or over 2. Tongkook America, Inc. v. Shipton Sportswear Co case dismissed because though parties thought suit was for $100K, it was actually for $40K, good faith mistake defense not accepted by court Test: If parties made mistake as to amount in good faith, the case may continue, but if there was no way that the claim could have ever been for the required amount- dismissal is proper- penalties for doing so See R settled rule is that whenever you find a jurisdiction error you dismiss 3. Snyder v. Harris P s claim was only for $8K, the total claim for all shareholders was $1.2M decides against the rule- court will not allow aggregation Traditional Rule: multiple parties may aggregate the amounts to make it sufficient for fed. Jurisdiction If it is brought in state court and the D wants to move it to federal court it would be on the D. It would generally fall on whoever wants to invoke federal jurisdiction. 4. McCarty v. Amaco Pipeline Co. Amount in question is determined by P s viewpoint if it originated in fed. Court, by D s account if case removed to fed. Court, either-whichever party estimates at $75K D. Federal and Non-federal claims in Combination 1. Rule 28 USC 1367 (a): same case or controversy provision (supplemental jur.) Pendent jurisdiction- at the discretion of the court- a federal court may hear a P s state law claims, whenever one claims arises under fed. Law and the state and fed claims derive from a common nucleus of operative facts a. Pendent jurisdiction when P in her complaint, appends a claim lacking an independent basis for federal subject-matter jurisdiction to a claim possessing such a basis

11 b. Ancillary Jurisdiction when either a P or a D injects a claim lacking an independent basis for jurisdiction by way of a counterclaim, cross claim, or 3p claim. b. United Mine Workers of America v. Gibbs federal question- fed court properly exercised jur. over both state and fed. Claim since both claims arose out of common facts TEST: the state and federal claims must derive from a common nucleus of operative fact and must be so closely related that usually a P would be expected to try them all in one judicial proceeding 2. Rule 28 USC 1367 (b): no supplemental jur. as to diversity suits; Ancillary jur (formally pendent jur.) a fed court odes not retain jur. based on diversity when the P adds a pendent party D who destroys complete diversity a. Owen Equipment & Erection Co. v. Kroger diversity suit- no discretion for court to hear case once complete diversity (all members of the diverse party must be diverse) has been destroyed federal courts are limited jurisdiction courts and we don t want to expand the jurisdiction P cannot use ancillary jurisdiction to assert a claim against the 3 rd party D even if that 3pd has already been brought into the action by the ancillary doctrine USC 1367, added in 1990, codifies the ancillary and pendent concepts and combines them into a single motion of supplemental jurisdiction E. Removal U.S.C. 1441: Removal Statute D may remove case to federal court if P could have brought suit there originally (P has first choice of jur); 1441 C- If state question is separate and independent it can be removed along w/the federal issue; P cannot conceal the true nature of a complaint through artful pleading 2. Bright v. Bechtel Petroleum case dismissed; also by pendent jur. entire claim both federal and state, was dismissed instead of state matter being remanded, a P cannot sue when D is complying with federal tax law; P here was penalized for bringing a frivolous suit F. Attacks on Subject Matter Jurisdiction 1. Capron v. Van Noorden Capron sued D in federal court for trespass and damage. In his complaint, P alleged that D was from NC, but failed to allege his own citizenship. Diversity of citizenship must be shown affirmatively in the pleadings. Since there was no allegation that either party was an alien, or that the plaintiff was a citizen of a state other than NC, there is no diversity of citizenship.

12 In Federal Ct., a case will be thrown out for lack subject matter jur. even if it has already made it to the appellate stage; strict rules of dismissaljudgment w/o jurisdiction is a nullity-period Direct and collateral attack: Court is not required to decide subject matter jur. before personal jur; Direct attack = challenging jur. during actual trial Hypo: If Capron had let the judgment become final, lost in the first action, and then filed the 2 nd action (i.e. instead of appealing, he files a new suit). o Collateral attack separate law suit o Res judicata once the case is finished, it is over and done with and jurisdiction attaches, but not if it is a collateral suit 2. Rule 12 (h) (3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action o Provides that the parties or the parties or the court on its own initiative can always object to the court s lack of subject matter jurisdiction 3. Collateral Attack The rules allowing collateral attack on the decision of the court of another jurisdiction are generally the same for both subject matter and personal jurisdiction. o It is only where a party to the first action had a default judgment entered against him that he may claim, when he is sued on the judgment in a second court, that the first court lacked subject matter jurisdiction IV. VENUE AND FORUM NON CONVENIENS A. General Principles 1. Venue refers to the place within a sovereign jurisdiction in which a given action is to be brought. It becomes a consideration only when jurisdiction over the parties has been established USC Which federal district court shall try the action? o Suit can be brought only in a district that satisfies both the venue requirements and the personal jurisdiction requirements as to all D o (Federal application only) V is proper in a location where a substantial part of the events or omission giving rise to the claim occurred. 3. Venue in local actions. IN local actions, V is proper only in the district where the property that is the subject of the action is located. If the property is located in more than one district of the same state, the action may be brought in any such district. o Bates v. C & S Adjusters, Inc Venue is proper in cases where a P s home district if a collection agency had mailed a collection notice to an address in that district or telephoned in that district. 4. Federal Transfer of V Transfer on the motion of D may be made only to those districts where P would have had the right, independent of the wishes of the D, to bring the action. This clearly establishes that consent by the D will not

13 permit transfer to a forum where the action could not originally have been commenced. Hoffman. o In the interest of reduction of forum shopping, the SC has rule that in fed transfer of V cases, the substantive law that is applied to the transferee court must be the same substantive law that the transferor court would have applied. This ruling tends to ensure that a transfer of fed V is only a change of courtrooms rather than a change of law and possibly of outcome. o Even the consent by all Ds would not authorize the action to be transferred to that district. 5. Venue in today s law o According to (d) an alien may be sued in any district if the alien does not contest jur. so in Helicopteros there would be jurisdiction o In Burger King venue seems impermissible. o Long arm statute provides for personal jurisdiction but does not apply to venue B. Forum Non Conveniens 1. FNC a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of general venue statute; court s discretion 2. Gulf Oil Corp v. Gilbert (balancing test) There is ordinarily a strong presumption in favor of Ps choice of forum, which may be disturbed only when the private interest (affecting the convenience of the litigants) and the public interest (affecting the convenience of the forum) clearly point toward trial in alterative forum. 3. Piper Aircraft airplane crash in Scotland, but US citizen on board, Scotland not the most convenient forum, but court upheld the forum using Gilbert balancing test, in the interest of the private litigants and public interest to have case in Scotland) The fact that the substantive law of an alternative forum is less favorable to P is not conclusive and should not be given substantial weight in applying doctrine of FNC V. THE ERIE DOCTRINE A. Federal v. State Law in Diversity Cases 1. Erie Doctrine the essence of Erie is that, while federal courts are free to apply their own rules of procedure, any issue of substantive law (other than a federal question) must be determined according to the laws of the state in which the federal court is located. procedure v. substance o Overruled Shift v. Tyson which resulted in forum shopping b/c incentive to get into federal court. 2. Guaranty Trust Co. v. York (Outcome determinative test 1945) Here the running statute of limitations substantially affected the outcome of the litigation.

14 Therefore, it was substantive within the Erie mandate, and state law controlled. Since the state statute of limitations had run before commencement of action, the case was properly dismissed. o Under the ODT, fed courts have been rqd to follow state practice in such quasi-procedural areas as the effect of res judicata, determination of date of official commencement of law suit, sufficiency of minimum jurisdictional contacts, burden of proof, and conflict-of-law rules 3. Byrd v. Blue Ridge Rural Electric Cooperative, Inc. (Court begins to retreat from complete acceptance of ODT 1958) application of state law would deprive P of jury trial upon a major part of his case. Rather the DC must determine for itself, using federal guidelines, whether jury trial upon the issue is proper keeping in mind the strong federal preference for jury trial. The preference for state law must be balanced against the deprivation of federal rights resulting form application of state law, a test that a separate from, and intended to augment, the ODT. o The preference for state law is not binding if application of such a law would deprive one party of a strongly protected federal right, even if the standard ODT is met USC 2072: Enabling Act allowed the SC to prescribe, by general rules the forms of process, writs, pleadings, and motions, and the practice and procedure in civil actions at law for the federal courts 5. Hanna v. Plumer (adherence to federal rules where they do not affect choice of forum) left service process with his wife, D claimed that this service conflicted with a MA statute making special provision for service upon the executor Process must be governed by Federal Rules even though it is outcome determinative because overriding a fed rule would disembowel either the Constitution s grant of power over federal procedure or Congress attempt to exercise that power in the Enabling Act o The modern rule is that in case of conflict between Federal Rules and state law, the Federal Rules control (i.e. such matters are presumptively procedural) 6. Walker v. Armco Steel Corp ( No conflict between federal and state laws) Issue: In diversity action, should the federal court follow state law in determining when an action is commenced for the purpose of tolling the state of limitations? Yes. o Rule 3 is not intended to toll statutes of limitations or displace tolling rules. It governs the date from which the various timing requirements of the FRCP begin to run. It does not replace the policy determination sound in state law: (1) actual service establishes a deadline (2) after certain period of time unfair to require defense to old claim o Hanna v. Plumer does not apply. (Law not intended to overstep)

15 <<In Walker and Burlington the court is making choices about whether to read the federal statute broadly or unbroadly. They will take into account state interest when we construe the scope of our rules and if we think there is an interest that needs to be protected than we can give the rule a more narrow scope, but if we think the rule is stupid we can just say the federal rule has a different scope. >> 7. Stewart Organization, Inc. v. Ricoh Corp. (Diversity and change of venue) where a federal rule covers the point at issue and is valid exercise of Congressional authority under constitution, a fed. Court can follow its own rule rather than state rule- here FL prevails over state disfavored such removals o State law is sufficiently broad to cover the issue 8. Gasperini v. Center for Humanities, Inc. fed court may apply the state s award amount caps; using outcome determinative test and don t want litigants to recover more in federal court than they could in state court- would encourage forum shopping B. Ascertaining State Law 1. Mason v. American Emery Wheel Works A federal law court may apply recent trends in state law over outdated state common law (MS later cases followed Erie though they had not explicitly overturned the earlier Swift-like decisions, they were convinced that if a relevant case had come up, MS would have decided using the modern Erie doctrine, so fed court adopts it as state law o The dominant view is that the court of appeals should try to do what would have happened if this was brought before the state court. 2. Ferens v. John Deere - Across the board rule that says that in a diversity suit, the transferee forum is required to apply the law of the transferor court, regardless of who initiates the transfer VI. PLEADINGS A. The Complaint (and the MD) 1. Definition of complaint initial pleading in a lawsuit, and is filed by the P 2. Legal theory not required P need state only facts, not the legal theory he is relying on a) Dioguardi v. Durning- the court held that P had stated enough to withstand a MD. P did not have to state his legal theory (e.g. that the law recognizes a private right of action for a person aggrieved by a civil servant s berach of duty to conduct a fair auction). - It is sufficient that he gives his adversary enough information about the claim to allow the latter to frame an answer and to commence discovery - Rule (8) (a) (2) says need to submit a plain statement of the claim 3. The SC held that heightened pleading requirements in civil rights cases are improper and federal courts generally have increasingly reached the same conclusion as to complex cases.

16 4. American Nurses Association v. Illinois claim was for comparable worth pay, no legal theory to base relief, but if case were for discrimination, legal relief available, court must determine which claim is pleaded R. 12(b)(6) failure to state a claim for which relief can be granted o One of the purposes of the rule 12 motion is to flush out complaints predicated on unsound legal theory, that decision is right for decision immediately you don t need more facts B. The Answer 1. Generally: D s response to the P s complain is called the answer. D shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies Rule 8(b). Same applies to P s answer to a D s counterclaim to the answer of a TPD to a TPC and other such pleadings. 2. Denials: D is permitted to make various kinds of denials, depending on how much of the P s complaint he wishes to deny, and on the state of his knowledge regarding the truth of the P s claims. Kinds of denials are outlined in 8(b): General denial, Specific denial (denial of allegations contained in a specific paragraph), qualified denial, denial of knowledge or information 3. Zielinski v. Philadelphia Piers, Inc. d improperly used a general denial when the D was really only contesting only one aspect of the complaint There is a legal duty to be specific as to defense pleading, if one intends to deny only part of a pleading, the D must specify what is tru and deny only the remainder C. Amendments 1. Rule 15 sets forth an extremely liberal policy on the amendment of pleadings. 2. Moore P filed complaint for custody, after trial D moved to conform pleadings to the evidence; the court granted the motion and awarded D custody plus child support, separate maintenance, and counsel fees; grant of separate maintenance not justified, but all others could have been inferred when the opposition amends his pleading and adds more complains (such as could rationally be expected to accompany the type of suit in trial) and you do not object you impliedly consent to a finding on that amended issue, however if the amendment is not an element of the initial relief sought and prejudices one party, the Amendment will not be granted) A allowed only by discretion of the judge One impliedly consents to an amended complaint if one does not object You can t come forward with a late claim if the other side doesn t have a fair chance to defend it.

17 3. Beeck v. Aquaslide N Dive Corp More than a year after admission of manufacture of the waterslide, D moves to amend his answer to deny manufacture Since disallowing the A would have been clearly prejudicial to D and since there was no evidence that D s delay in moving to amend was motivated by bad faith, the trial court s ruling was not an abuse of discretion To amend requires leave of the court; can be granted if justice so requires 15 applies when you are amending a claim to sue a different defendant 4. Worthington v. Wilson - man had injured hand and warned officers and they were not sensitive to the area; he therefore sued unnamed officers; replaced the fictitious names with the real names; FR trumped, but modern rule would allow them to recover 15 would only apply if there was a mistake; it was ignorance not a mistake 15 has been amended relate back an amendment of the pleadings relates back to the date of the original pleading when the A changes the party or the naming of the party against whom a claim is asserted D. Affirmative Defenses 1. Ingraham v. United States P sued for injuries caused by the negligence of govt physicians; After entry of adverse judgments, the govt moved for relief from the judgment to the extent that damages exceeded the limit imposed by the TX act FRCP 8 requires that a part plead affirmative defenses when pleading to a preceding pleading Failure to raise an AD timely constitutes a waiver of that defense. <<Reconciling Ingraham and Taylor in Ingraham, the government reopened the case. In Taylor, government raised the issue during the actual trial.>> E. Sanctions 1. Hadges v. Yonkers Racing Corp.- After p and his attorney made incorrect statement in 60(b) motion (relief from judgment or order), they received sanctions with little notice and scant time to respond. They had signed affidavits containing false information and failed to inform the court of state action. neither p nor his attorney were given time to retract misstatements and thereby avoid sanctions. Rule 11(c)(1)(A) provides for 21-day safe harbor period. Pursuant to Rule 11, those facing sanctions must receive adequate notice and the opportunity to respond. VII. PLEADINGS A. Joinder of Claims by Plaintiff 1. Harris v. Avery P met D and in the presence of several other persons called D a thief and said he had a stolen horse; confined him in the county jail D brings an action for false imprisonment and slander and alleges both arose out of the same transaction. Harris demurred to this petition on the ground several causes of action are improperly joined. They should be united because they rise out of the same transaction.

18 Rule 18 a P may join either as independent or as alternative claims as many claims as the party has against an opposing party o The claims ay later be split under Rule 42(b) if the claims are widely divergent 2. Mandatory joinder rule claim preclusion forces P to bring all claims at once a) Rush v. City of Maple Heights tried to bring separate actions for injury and property damage; should have both been brought at same time o Where a person suffers both personal injuries and property damage from the same accident most states follow the rule that P has a single claim, not distinct claims for person injuries on the one hand and property damage on the other. (R/L being that a single tortuous act has caused all the injuries so they could all be litigated together. Also encourages judicial efficiency.) o P has to bring all claims arising from a single transaction from a nucleus of common facts at one time B. Counterclaims 1. Permissive counterclaim Rule 13(b) allows assertion as a counterclaim at the D s discretion of any claim not arising out of the transaction or occurrence that is the subject matter of the opposing party s claim. 2. Compulsory counterclaim If a claim does arise out of the transaction or occurrence that is the subject matter of the opposing party s claim its assertion is compulsory under Rule 13(a). The penalty for failing to state such a compulsory counterclaim is loss of the claim in future litigation. a later suit on that claim by the present defendant will be precluded by the rules of res judicata The counterclaim had to be brought in the initial suit and may not be brought later in a separate suit- cannot spilt a cause of action and use part as defense and other as an offense (Mitchell) Rule 13(a) advocates for efficiency saying that if you have a counterclaim arising out of the same transaction then you have to bring it forward. When a party is used, a judgment in that suit is not conclusive as to an affirmative cause of action which the party may have asserted against the other in a cross-claim (Linderman) When there is a state claim logically related to the fed. claim, the fed court has jurisdiction over the entire matter (Great Lakes) o Rule 1367 supplemental jur. allows fed. court jur. over a nonfed claim when it is joined with a fed subject matter suit C. Cross-claims Rule 13(g) allows a party to make, in certain situations, a claim against a co-party, such as a co-d or co-p. A cross claim is made only against a party who is on the same side of an already-existing claim as is the cross-claimant.

19 A cross claim is valid as long as it bears some logical relationship w/ the transaction or occurrence that is the subject matter of the original action or counterclaim. (LASA) o Advantages or having them all together Discovery all coordinated by one judge Use similar evidence Must arise from same transaction and ask for actual relief. D. Impleader A defendant alleging that a third person is liable to him for all or part of the P s claim against him may implead such a person as a TPD. Rule 14(a) 1. Jeub v. B/G Foods, Inc. While the extent of indemnity between parties should be determined by reference to state law, the right to implead is a procedural matter in the district court and as such is governed by the FRs. Only if the state law had recognized no right to indemnity at all would impleader have been improper the fact that federal impleader procedure is available does not act to create a substantive state right of indemnity. But Minnesota recognized a limited right to indemnity; therefore, federal impleader procedure governed the application of that state doctrine <<Hypo: suppose that the P had this meal in IL and the supplier of the ham was actually located across the border in Gary, IN. o In Rule 14, if you are served not more than 100 miles away then they may join you. >> <<Goodhart v. United States Lines Co. p Should G/B be able to implead the chef who cooked the ham. o S: I don t think so if it is clear to the court that it is manipulation on the part of the D, and there is no way that the chef will pay. o Rule 42 may suggest there should be separate trials. >> <<Revere Copper & Brass v. Aetna Facts: P sued d alleging that builder, F, had breached contract. D impleaded F, F asserted counterclaim against R. R moved to dismiss F s counterclaim on the ground that there was no diversity. Holding: Because the claim fell within the core of aggregate facts upon which the original claim rested, it was within the court s ancillary jurisdiction. Rule : P has to show independent grounds of jurisdiction because p has the option of selecting the forum, not been involuntarily brought to a forum can t suddenly bring claim against non-diverse party because of possibility of collusion between p and d. Rule : 1367(b) takes away from what 1367(a) gives claims by plaintiffs under Rule 14 not in court s supplemental jurisdiction. Rule : Statutory venue limitations have no application to Rule 14 claims. Rule : MUST HAVE JURISDICTION AND JOINDER.

20 Noland and Schwab say that can also sue for lost profits, but must be suing for indemnity also. Schwab says this is allowed by Rule 18. Guaranteed Systems Inc. v. American National Can Company Facts: G filed action in state court against A for failing to pay G for construction work. A removed to federal court on basis of diversity, answered and filed counterclaim alleging negligence. G filed 3 rd party action against H for indemnity. Rule : P cannot implead 3 rd party d when the original action is based solely on diversity unless shows that the 3 rd party d is diverse. But court didn t seem to want to do this. It saw the p as more of a d at this point didn t choose the forum because of removal and has counterclaim against it. But Congress didn t take this situation into account, so must follow the statute and prohibit p from impleading nondiverse 3 rd party d. B. Interpleader U.S.C Interpleader Definition suit to determine a matter of claim or right to property held by a usually disinterested 3 rd party who is in doubt about which claimant should have to property and who therefore deposits the property with the court over ownership; typically initiates interpleader both to determine which claimant should receive delivery or payment and to avoid multiple liability. (a) DC shall have original jurisdiction of any civil action of interpleader filed when worth $500 or more if: (1) 2 or more adverse claimants of diverse citizenship are claiming or may claim to be entitled to such money or property; and (2) p has deposited such money or property into registry of the court. (b) Such an action may be entertained although the titles or claims of the conflicting claimants don t have a common origin, or are not identical, but are adverse to and independent of one another U.S.C Interpleader Any civil action of interpleader under 1335 may be brought in the judicial district in which one or more of the claimants reside U.S.C Process and Procedure DC may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any state or US court affecting the property, instrument, or obligation involved in the interpleader action until further action of the court. Such dc shall hear and determine the case, and may discharge the p from further liability, make the injunction permanent, and make all appropriate orders to enforce its judgment. 4. FRCP Rule 4(k)(1) Territorial Limits of Effective Service Service of summons or filing a waiver of service is effective to establish jurisdiction over to person of a d who is subject to the federal interpleader jurisdiction under FRCP Rule 22 Interpleader Persons having claims against the p may be joined as d and required to interplead when their claims are such that the p is or may be exposed to double or multiple liability not ground for objection to the joinder that claims do not have a common origin or are not identical but are adverse to and independent of one another, or that the p avers that the p is not liable in whole or in part to