CIVIL PROCEDURE OUTLINE FALL 2007 GREINER

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1 NATURE OF THE JUDICIARY I. Judiciary has power to review legislative (and later executive acts) a. Marbury v. Madison 1803 struck down law that gave SC more original jurisdiction than granted in the Constitution; reasoning: need this power in order to decide cases b. Cooper v. Aaron Federal and state governments must comport with what we decide the Constitution says; Reasoning: we re the final arbiter on what the Constitution says LAWSUIT I. Complaint a. Where should it be filed? i. Federal/state court decided by arising under jurisdiction ii. Geographical location en personam jurisdiction iii. Geographical convenience venue b. Content of complaint i. Alleged subject matter jurisdiction ii. Alleged personal jurisdiction iii. Venue iv. Identify parties v. Facts vi. Relief Requested II. 3 stages at which to test plaintiff s case a. Motion to dismiss if every fact in complaint is true, would it still fail? b. Motion for summary judgment if there are no questions of fact, no trial. i. Usually settle if facts are in dispute c. Trial/Verdict relief in law or equity SUBJECT MATTER JURISDICTION ARISING UNDER JURISDICTION I. Federal causes of action a. Concurrent jurisdiction i. Unless otherwise stated, state courts also have jurisdiction over these. b. Exclusive jurisdiction for federal courts i. Copyright and patent litigation II. Statutory grant of arising under jurisdiction is 1331 III. There must be statutory and constitutional grant of subject matter jurisdiction for federal courts to have jurisdiction. a. 28 U.S.C Grants arising under jurisdiction i. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. b. U.S. Const. Art. 3 - The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority c. Louisville & Nashville R. Co. v. Mottley Mottley had passes to ride RR for life; Congress passed law prohibiting these passes; Mottley sued in federal court to get the passes; Supreme Court: lower courts did not have jurisdiction PAGE 1 OF 46

2 IV. CIVIL PROCEDURE OUTLINE d. statutes typically interpreted more narrowly than Constitution, despite having essentially the same wording i. Osborn v. Bank of the United States 1824 very broad interpretation of constitutional grant of jurisdiction; if ingredient of case is raises federal issue, then courts can exercise it. Well-pleaded complaint rule subject matter jurisdiction must be established in plaintiff s complaint; must be necessary to prove her claim; cannot create a federal issue by anticipating a defense Cant include a tangential fed claim ct. will strip it down a. Mottley anticipated D s defense was law prohibiting lifetime passes i. Federal Circuit Court also cannot exercise jurisdiction when federal defense is raised by counterclaim 1. Holmes Group v. Vornado Circulation Systems 2002 b. Exception to well-pleaded complaint rule: Declaratory Judgment i. 28 U.S.C allows courts to issue declarative judgments people have live dispute and bring it to court so they know how to act to prevent further damage ii. With declaratory judgment, court has to examine underlying dispute, imagine who would sue, construct that lawsuit, and decide if that lawsuit arises under federal laws, constitution 1. First Federal Savings & Loan Association of Bowling Green, Kentucky v. H. Early McReynolds 1969 KY bank sued for declaratory judgment against terminated employee; court dismissed because of lack of subject matter jurisdiction; cannot gain federal jurisdiction simply by filing lawsuit first if employee had filed first, would have been irremovable state court claim. V. Courts can (and should) raise jurisdiction sua sponte; no need for parties to raise it a. Mottley never contested until Supreme Court decided that it did not exist VI. Federal law cause of action is neither necessary nor sufficient to establish subject matter jurisdiction, but it helps a. Arising under jurisdiction exists when the plaintiff must prove a proposition of federal law to establish her state law claim (no federal law claim exists). i. Smith v. Kansas City Title & Trust Co suit argued that bank officers violated duty to shareholders of bank by investing in unconstitutionally created federal bonds; state law cause of action because state law creates duty; federal law question necessary to decide case 1. Because real question is the constitutionality of a federal action, jurisdiction exists. ii. Moore v. Chesapeake & Ohio Ry. Co state law defined liability by prohibiting contributory negligence when D violated fed or state statutes; D violated federal act; court: no jurisdiction when state law defined liability and federal statute created duty that was breached 1. [maybe: difference that Smith is a constitutional question, while Moore involves law that established duty] PAGE 2 OF 46

3 b. Federal causes of action dependent on state law and local customs should be heard in state court i. Shoshone Mining Co. v. Rutter 1900 federal statute authorized claimants to sue, but did not establish federal law to govern claims; state court has jurisdiction c. When Congress creates rights, but doesn t explicitly establish right to sue, must decide whether there is implied cause of action. i. Merrell Dow Pharmaceuticals Inc. v. Thompson 1986 Negligence claim based on failure to inform, which was required by FDCA; FDCA creates duties, but no right to sue; Court: no implied right to sue either 1. Different from Smith because there was right to sue 2. Is this a return to which law created claim? 3. Look at federal interests involved* DIVERSITY JURISDICTION I. Questions involving diversity jurisdiction = state law claims; otherwise, arising under jurisdiction a. Jurisdictional Grants i. U.S. Const. Art. III, 2, cl. 1 ii. 28 U.S.C establishes rules for diversity jurisdiction U.S.C no party can be forced to join lawsuit improperly for jurisdiction purposes II. There must be complete diversity all of the plaintiffs must be from different states than all of the defendants a. Strawbridge et. al. v. Curtiss et. al defendant not from MA; all other plaintiffs and defendants were from MA; dismissed for lack of jurisdiction i. Interpreting statute, not constitution 1. constitution only requires minimal jurisdiction (class-actions) III. Citizenship for diversity purposes is party s domicile where you intend to stay indefinitely, not residence a. Mas v. Perry th Circuit - married couple rent apartment that secretly has 2 way mirror that allows LL to watch them; sue in federal court based on diversity; husband is a foreign citizen while wife lived in Mississippi before they lived in Louisiana to go to grad school; because they did not intend to stay in LA after grad school, wife s citizenship remained in MS i. Court also recognized judicial inefficiency that would be caused by allowing husband to sue in federal court and not the wife b. Party asserting diversity jurisdiction has burden of proving its existence c. Citizenship determined at time of lawsuit s commencement IV. Amount in Controversy Requirement a. $75,000 required to be in controversy, not required to be recovered i. Based on P s good-faith complaint, requires near legal certainty that it is actually for less for court to dismiss based on this 1. St. Paul Mercury Indemnity Co. v. Red. Cab Co PAGE 3 OF 46

4 ii. Court must look at circumstances at time the complaint is filed [Stewart v. Tupperware Corp st Cir.], but can look at post-filing events to determine bad-faith [Hall v. Earthlink Network,Inc nd Cir] b. Court must try to put dollar amount on nonmonetary relief i. For injunctive relief, there are 3 options to determine if amount exists 1. value to the plaintiff 2. value to the party seeking to invoke diversity jurisdiction 3. Either viewpoint rule a. McCarty v. Amoco Pipeline th Cir. V. Corporations a. Can be citizens of 2 states under 1332 i. State in which it is incorporated ii. State in which it has its principal place of business 1. 3 options a. Brain where the corporate decision making occurs b. Rest of the body where it does most of its business c. Whole body look at everything b. Courts will not assess business entity s corporate status for jurisdiction purposes Hoagland v. Sandberg, Phoenix & Von Gontard, P.C th Cir. VI. Unincorporated Associations a. A citizen of any state in which it has a member i. United Steel Workers of America, AFL-CIO v. R.H. Bouligny, Inc Corporation suing union for defamation; Union tries to remove it to federal court, but it s trapped in state court because it is a citizen of wherever a member is domiciled. Court would rather allow Congress to determine jurisdiction because it is unsure of where union would be headquartered. b. Different for class-actions VII. Creation of Diversity Jurisdiction a. Prohibited by only relates to creation, not necessarily destruction of diversity jurisdiction (courts split on this) i. Kramer v Caribbean Mills, Inc 1969 sold interest to Panamanian company to create diversity; Court: this is illegal b. Nominal/formal parties cannot be used to create diversity jurisdiction; courts can distinguish between nominal and parties with a real interest in the litigation i. Rose v. Giamatti 1989 Ohio MLB & Cincinnati Reds are nominal parties not to be considered for diversity jurisdiction purposes VIII. Exceptions to Diversity Jurisdiction a. Domestic-relations exception exists for cases involving issuance of divorce, alimony, or child custody decree i. Ankenbrandt v. Richards 1992 b. Also exception for probate matters generally SUPPLEMENTAL JURISDICTION I. 2 types although 1367 does not separate types, court still abides by rules created for each PAGE 4 OF 46

5 II. a. Pendent jurisdiction plaintiff appends a claim lacking an independent basis for federal subject-matter jurisdiction to a claim possessing such a basis i. Can hear state law claims, provided that they (1)arise out of the common nucleus of operative facts and (2)that it makes sense to exercise jurisdiction [1367(c) factors] 1. United Mine Workers v. Gibbs 1966 supervisor of mine frozen out of mining industry because he/company used different union s workers; sued on federal claim Labor Management Relations Act, but also brought state tort claims interference with contractual relations; all based out of same case/controversy so court could exercise jurisdiction b. Ancillary jurisdiction plaintiff OR defendant injects a claim lacking an independent basis for jurisdiction by way of a counterclaim, cross-claim, or 3 rd party complaint i. Extended to cross-claims, intervention, but not to permissive counterclaims c. Must have constitutional and statutory basis for exercising jurisdiction; statutory permission will be determined on case-by-case basis i. Supplemental Jurisdiction 1. Owen v. Kroger 1978 Kroger (IA) sued OPPD (NE); OPPD brought in Owen (IA AND NE); Kroger then asserted a claim against Owen, destroying diversity, especially when OPPD obtained summary judgment; Court: though constitutional, it would violate 1332 (diversity jurisdiction statute) to allow this ii. Pendant Party jurisdiction 1. Aldinger v. Howard 1976 county employee fired; filed suit under 1983 against Howard and other individual defendants & filed state law claim against the county, which could not be sued under 1983; Court: because county was prohibited from being sued under 1983, there is no statutory basis for suing the county 2. Finley v. United States 1989 Finley filed FTCA claim against US in federal court under 1346 and state law claims against other non-diverse defendants; Court: no indication that 1346 conveyed jurisdiction over any claims other than those against the US; thus, case has to be divided into 2 cases 1 in federal court, 1 in state a. Greiner: NO pendent party jurisdiction at all & Post Cases a. Must be part of same case or controversy i. Keeps Gibbs test ii. Allows pendant party jurisdiction! b. If case is in federal court b/c of diversity jurisdiction, PLAINTIFF cannot bring in another party if it would destroy complete jurisdiction i. Original defendant less restricted can bring in non-diverse parties ii. Essentially to preserve restrictions established in Kroger must keep 1332 in tact PAGE 5 OF 46

6 III. IV. CIVIL PROCEDURE OUTLINE 1. Guaranteed System v. American National Can 1994 NC Guaranteed System (NC) sued Nat l Can (DE) in state court, which removed to federal court and filed counterclaim against GS; because of counterclaim, GS files suit against subcontractor HydroVac (nondiverse); Court: cannot do this because original plaintiff is not allowed to destroy diversity c. Can decline to exercise supplemental jurisdiction if (Gibbs factors) i. Novel/complex issue of state law ii. State claim predominates over federal claim iii. District court has dismissed claims over which it has original jurisdiction 1. Gibbs: must get rid of supplemental claims if dismiss federal claims; statute should get rid of them; courts still follow Gibbs iv. Other compelling reasons v. Executive Software v. United States District Court th Cir petitioning for writ of mandamus to make District Court keep pendant claims in federal court; Court factors in 1367(c) restrict ability to remand, and c(4) also restricts our ability must be exceptional to remand 1. Most courts disagree with this; instead, most say that you can remand if you feel like it d. Period of limitations tolled while claim is pending and for 30 days after claim is dismissed unless state law provides for longer period What survived 1367 Owen v. Kroger (expanded), Gibbs, not Aldinger/Finley (which prohibited pendant party jurisdiction) Process to determine if supplemental jurisdiction is allowed a. Constitutional power under Art. III, 2 Gibbs b. Statutory grant of jurisdiction i. Case/controversy, but with diversity concerns c. Does it make sense in light of discretionary concerns in 1367 (c) V. Permissive counterclaim does not need independent basis for jurisdiction a. Jones v. Ford Motor Credit Co d Cir. Constitution and 1367 require sufficient factual relationship to fulfill case/controversy requirement VI. Judicially created jurisdiction a. Kokkonen v. Guardian Life Ins. Co. of America 1994 federal courts have ancillary jurisdiction to enforce their decrees and orders; REMOVAL JURISDICTION I. Governed by 1441, II. Defendant can move to federal court automatically only to federal district court for the district/division embracing state court where action was originally filed a. Venue rules do not change court lawsuit is removed to b. Federal court gets to decide whether to keep or remand the case c. All defendants, other than nominal parties, must join in petition for removal. i. Chicago R.I. & P. Ry. Co. v. Martin 1900 ii. Exception: when removal is on basis of separate/independent claim III a. Only when federal court has original jurisdiction PAGE 6 OF 46

7 IV. CIVIL PROCEDURE OUTLINE b. If arising under jurisdiction is present, citizenship does not matter, but if it is based on diversity, cannot remove if defendant is a citizen of the state in which the suit was originally filed c. When there is supplemental jurisdiction, whole case may be removed; district court can then determine all matters OR remand all matters in which state law predominates d. Any action brought in state court against a foreign state ( 1603a) may be removed; will be tried without jury; time limitations of 1446 may be enlarged at any time for cause shown e. Pg. 272 of supplement f. Can be removed even if state court did not have jurisdiction over that claim All aspects of supplemental jurisdiction apply equally to removal jurisdiction a. Well-pleaded complaint rule applies to removal jurisdiction i. Plaintiff cannot remove a state court action to federal courts because defendant had interposed a counterclaim Shamrock Oil & Gas Corp. V. Sheets 1941 b. Complete diversity applies to removal jurisdiction c. Must act quickly if you do anything in state court, may waive right to remove i. Case can become removable late in lawsuit (nondiverse D drops out, etc.), but 1 year after case is filed is too late V. What plaintiff cannot do to prevent lawsuit from being removed a. Fraudulently joining a defendant against whom the plaintiff has no cause of action b. Cannot disguise federal cause of action that would make case removable i. Doctrine of artful pleading c. Certain causes of action are so exclusively federal in character that even if the plaintiff does not plead them, they will completely preempt any state cause of action and make any cause of action the plaintiff attempts to plead federal (removable). VI. VII. VIII. Erroneously Removed a i. (c) if a case is removed erroneously, a federal court must remand it to the state court. ii. (d) order remanding a case to the state court from which it was removed is not reviewable on appeal or otherwise 1. Only cases remanded on grounds specified in 1447(c) are unreviewable a. Quackenbush v. Allstate Ins. Co Exception to this rule: 1343/1443 preserves appellate jurisdiction in civil rights cases over remanded cases b. If there is no jurisdiction when suit is originally filed in federal court, must dismiss without prejudice, not remand it. If plaintiff dismisses federal claims after removal to defeat federal jurisdiction, district court has discretion to remand supplemental state claims. a. Carnegie-Mellon Univ. v. Cohill applies equally to state claims in removed cases. PAGE 7 OF 46

8 a. City of Chicago v. International College of Surgeons 1997 IX. 1441(c) and 1367(c) a. Can t remand federal questions to state court i. Borough of West Mifflin v. Lancaster d Cir 1. 2 black guys harassed/arrested by mall security cops; sued under 1983 and under state law claims; 2. Court exceeded its authority by remanding claims using 1441(c) claims b. Burnett v. Birmingham BOE 1994 AL i. weren t being paid according to job classification so they sued BOE in state court for writ of mandamus c. Both cases removed to federal court under 1441 / 1443 (civil rights cases) d. Plaintiffs file motion to remand in both cases i. West Mifflin cannot remand federal question claims ii. Burnett must be separate/independent claims for 1441(c) to apply at all 1. What is use of 1441(c) if this is all encompassed by 1367(c)? a. Allows remand of entire case, including federal questions, while 1367 seems only to allow courts to decline to exercise jurisdiction over supplemental claim, which would split the lawsuit. e. 1441(c) only way to remand federal question, and even then, only on particular interpretation f. Is 1441(c) unconstitutional in light of Gibbs same case/controversy constitutional test if 1441(c) requires separate & independent action? X. Process for Remanding what court does a. Do state law claims fit into 1367(a)? Are they part of same case/controversy? i. If no, remand b. If yes, can you send them back because of 1367(b) complete diversity? c. Does court want to exercise jurisdiction under 1367(c) discretion? i. Courts split on strictness of 1367(c). ABSTENTION I. When the court refuses to hear a case that it has jurisdiction over II. Typically appropriate in 3 areas a. Cases presenting constitutional issue, but where a state law issue is determinative b. Cases where federal court s exercise of jurisdiction would interfere with coherent policy that is a matter of substantial policy concern. Burford v. Sun Oil Co. c. Cases where federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings or of collecting state taxes Younger v. Harris d. New factor established in Colorado River: Though very limited, judicial efficiency can allow federal courts to refuse to exercise jurisdiction. i. Because the system is so well-established in state court, would be bad for federal court to exercise jurisdiction ii. Colorado River Water Conservation District v. United States Clark v. Lacy Asking court for stay to allow state case to proceed to judgment; court comes up with 10 factor test that essentially PAGE 8 OF 46

9 allows court to do whatever it wants; stretches Colorado River doctrine in ways never intended; no statutory basis for not deciding case just wanted to hear it all at once. PERSONAL JURISDICTION I. Types a. In rem jurisdiction lawsuit over a piece of property; i.e. In re The Nautilus b. Quasi-in-rem jurisdiction against a person, but limited to a piece of property within the court s jurisdiction c. In personam between two people i. Waivable can agree to be sued in whatever court lawsuit is filed in ii. Defendant bears burden of raising personal jurisdiction question iii. Due process restrictions on state jurisdiction are considerably greater than those on choice of law Allstate Ins. Co. v. Hague II. Must have constitutional and state grant of jurisdiction a. Typically done via long-arm statutes usually grant jurisdiction up to limits of constitution III. Pennoyer v. Neff can exercise jurisdiction over non-resident if you serve D personally overruled a. Good law from P v. N: due process clause dictates when exercising jurisdiction is appropriate IV. International Shoe doctrine a. Court may exercise personal jurisdiction over a defendant if D has such minimum contacts that it would be fair to require her to defend actions in the state. b. Lawsuit must arise out of contacts to state V. Application of minimum contacts standard a. One contact is sufficient when it is substantial enough McGee v. International Life Insurance Co 1957 insurance policy between CA resident and AZ corporation; Court: can be subject to California s courts because contract had substantial connection with that state; focuses more on CA s interest in litigating suit rather than D s due process rights b. Plaintiff s contacts with forum state not required to be minimum Keeton c. Effects test committed an intentional act; expressly aimed at the forum state; causing harm, the brunt of which is suffered and which the defendant knows is likely to be suffered-in the forum state Calder v. Jones 1984 i. No first amendment problems VI. General jurisdiction v. specific jurisdiction a. General jurisdiction requires substantial or pervasive contacts, but suit need not arise out of contacts i. Helicopteros Nacionales de Colombia v. Hall 1984 Peruvian entity being sued in TX, but lawsuit did not arise out of contacts it had with TX; thus, must be general jurisdiction, but court found that there were not enough contacts with the state so that the corporation could be sued in TX under general jurisdiction. PAGE 9 OF 46

10 VII. VIII. IX. 1. Question about if Fair Play & Substantial Justice factors apply to general jurisdiction; 2 nd Court has held that it did Metropolitan Life Insuracnce Co. v. Robertson-CECO Corp b. Specific jurisdiction single act, continuous but limited contacts; must arise out of contacts Purposeful Availment a. Must have purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla 1958 rich lady moved to FL from PA after creating trust; FL tried to exercise jurisdiction over DE bank that was trustee for bank; Court: DE bank cannot be forced to litigate in FL simply b/c lady moved there after creating trust; Cannot be haled into court based on the unilateral acts of another b. Must reasonably expect to be haled into court; did not seek any direct benefit from OK activites World-Wide Volkswagen Corp. v. Woodson 1980 c. Purposeful availment requirement; if met, must present compelling case with other factors (of fair play, etc.) for jurisdiction not to be appropriate Burger King v. Rudzewicz 1985; d. Kulko v. Superior Court divorced parents; father travels to CA for kids; articulates effects test, but does not rely on it; purposeful availment courts regularly use it to decide against jurisdiction against individuals e. Contacts cannot be random, isolated, or fortuitous Keeton v. Hustler Magazine, Inc. 1984; Stream of Commerce contacts a. Typically insufficient to establish minimum contacts i. Asahi Metal Industry Co. v. Superior Court 1987 Asahi manufactured tire valve, last remaining suit in lawsuit against various parts of motorcycle involved in accident that killed rider; indemnification suit left; is it enough to put a tire valve into stream of commerce? Court: Definitely not, but split as to why ii. Courts split on whether they adopt O Connor s purposeful availment test or Brennan s stream of commerce test (which says that placing a product in the stream of commerce is enough) 1. Application of the additional conduct test Parry v. Ernst Home Center Corp UT knew product was going to be sold in western US, but not in Utah, specifically. No other conduct that would establish jurisdiction. iii. Foreign defendants place a stricter minimum contacts requirement Asahi Federal Court Jurisdiction over Foreign Defendants Rule 4 Service of Process a. Originally restricted by state s long-arm statute, which forced defendant to have minimum contacts with the forum state rather than country as a whole Rule 4(k)(1)(A) federal court piggy backs on long-arm statute of state in which it sits i. Omni Capital Int l v. Rudolf Wolff & Co jurisdiction unobtainable over foreign defendants PAGE 10 OF 46

11 ii. This rule incorporates 14th Amendment for federal courts, limiting their exercise of jurisdiction by: 1. state long-arm statute 2. Constitution a. 14 th Amendment Due Process (Int l Shoe) i. When foreign defendant, needs minimum contacts with the country rather than with state. Go-Video, Inc. v. Akai Electric Co th Cir. 1. Sherman 1 Companies not selling necessary parts to prevent movie pirating. 2. Minimum contacts for nation probably kitchen sink approach, like for states. b. 5 th Amendment Due Process b. Rule 4(k)(1)(B) service of process 100 miles from place from which summons issues for parties joined under Rules 14 & 19 c. Rule 4(k)(1)(C) nationwide service of process for defendant subject to federal interpleader jurisdiction d. Rule 4(k)(1)(D) service rule federal court may use when federal statute authorizes jurisdiction i. What triggers national contacts approach 1. federal court 2. federal law 3. Worldwide service of process 4. If Congress gives worldwide service of process to state tort claim, probably national contacts approach ii. What is limit of 14 th amend with fed law cause of action with WW SOP? 1. Supreme Court has not addressed this issue e. Rule 4(k)(2) limited federal long-arm provision that applies to defendants who are not amenable to suit in any one state; reaction to Omni i. For this to apply, 3 things must exist 1. jurisdiction consistent with constitution a. Most courts have not found that fairness factors articulated by Oxford First Corp. v. PNC Liquidating Corp 1974 PA (extent of contacts, inconvenience, judicial economy, locus of discovery, interstate character/impact of D s activities) are required by constitution; if minimum contacts, then 5th Amendment is satisfied 2. federal law subject matter jurisdiction 3. Not subject to service of process in any other state a. Under this rule, question of who has the burden of proving that amenability of D in any of the states. Courts are split. i. One option: burden-shifting framework D must provide evidence that it is subject to jurisdiction in st, plaintiff can then respond. 1. US v. Swiss American Bank st Cir. PAGE 11 OF 46

12 ii. Some courts argue that venue constraints in Section 12 must apply, meaning that defendant must have minimum contacts under long-arm statute or that it must have contacts to satisfy venue provision iii. Under Rule 4(k)(2) foreign defendant must have sufficient contacts with the US as w hole that will satisfy 5 th Amendment 1. Pyrenne, LTD v. Wocom Commodities, LTD IL (but dismissed on forum non conveniens grounds there was a more convenient forum). f. Rule 4(n)(2) gives federal courts original quasi-in-rem jurisdiction i. Must comport with International Shoe requirements when defendants are absent. 1. Shaffer v. Heitner TAG JURISDICTION I. Not all exercise of jurisdiction is subject to the minimum contacts/fair play test. a. Burnham v. Superior Court 1990 Burnham served with divorce papers while visiting child in CA; judgment - jurisdiction established when the defendant is served while in the state Due process requirements are automatically met if he s in the state; Brennan took advantage of CA s resources so that exercising jurisdiction is okay i. May just be that they don t want to punish him for seeing his kids b. Grace v. MacArthur 1959 AR defendant served while in a plane over Arkansas; air above state is territory of the state, despite commerce law providing that air is United States territory; commerce is different from jurisdictional qs INTERNET JURISDICTION I. Griffis v. Luban 2002 MN state court defamatory statements online; no personal jurisdiction over D; wants something more than the effect was in AL, but no inclination as to what that is. II. Interactivity of website can be dispositive factor a. Zippo v. Zippo 1997 PA interactivity of website can suffice for purposeful availment; passive websites do not Advice from Greiner: Think about if you were writing statute/constitutional provision that specified when you could exercise in personam jurisdiction. What kind of factors can you list that a court should consider? Minimum contacts Purposeful availment Specific v. general jurisdiction o See if you can figure out a specified relationship to each other VENUE I. Governing statutes a i. If diversity jurisdiction, venue must be 1. District where any D resides if all in same state a. Typically, residence=domicile, but not always 2. District where events leading to claim occurred a. Can be multiple districts PAGE 12 OF 46

13 II. III. 3. District that has personal jurisdiction over D a. Fallback provision rare! ii. If arising-under jurisdiction, venue must be 1. District where any D resides - if all in same state 2. District where events leading to claim occurred 3. District where D may be found (tag jurisdiction) iii. If a corporation, venue is in district that has personal jurisdiction; if there is more than one, look at contacts with the district as if it were a different state. b i. If you have filed lawsuit in proper place, but it will be more convenient elsewhere, may transfer it to other districts where it might have been brought c i. If you have filed lawsuit in improper place, can dismiss the case or transfer it to any district where it could have been brought ii. Must raise timely/sufficient objection d provides for temporary transfer to one district of related complex cases such as multidistrict antitrust actions. i. Requires panel on multidistrict litigation to remand cases consolidated under 1407 to their original courts for trial 1. Lexicon Inc. v. Milberg Weiss Bershad Hynes & Lerach General Info a. Can waive venue (although courts have been reluctant to allow this) b. Suits apparently covered by 1391 may be covered by other federal law c. Local actions when action relates to interests in land, must be prosecuted in county/district in which land is located d. Plaintiff s choice of venue should rarely be distubed e. What various venue statutes are based on i. Where subject of action or part thereof is situated ii. Where cause of action, or part thereof, arose/accrued iii. Where some fact is present/happened iv. Where defendant resides v. Where defendant is doing business vi. Where d has office/place of business, agent, representative, or where agent/representative resides vii. Where plaintiff resides viii. Where plaintiff does business ix. Where defendant may be found x. Where defendant may be summoned or served xi. In the county designated in complaint xii. In any county xiii. Where seat of govt is located Cases PAGE 13 OF 46

14 a. Can only transfer venue to a district in which the original lawsuit might have been brought, meaning that district must be able to exercise personal jurisdiction i. Hoffman v. Blaski 1960 filed suit in TX; transferred to IL; SC: must have been able to originally bring lawsuit in the district; does not matter that D requested it; b. Can differentiate between residents/nonresidents when making venue rules i. Burlington Northern RR Co. v. Ford 1992 c. In diversity cases, the law applicable in the transferor forum follows the transfer. i. Van Dusen v. Barrack 1964 ii. Some disagreement about whether this applies to federal claims or not since there are deep splits in interpreting federal law d. In diversity suit, the transferee forum is required to apply the law of the transferor court, regardless of who initiates the transfer. i. Ferens v. John Deere Co e authorizes the transfer of an action, even if the transferor court lacks personal jurisdiction. i. Goldlawr, Inc. v. Heiman 1962 FORUM NON CONVENIENS I. court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. a. Gulf Oil Corp. v. Gilbert 1947 lots of factors to consider, but mainly interest of parties II. If moving would be disadvantageous in terms of statute of limitations or witnesses, defendant must waive these issues only applicable to 1404, not to 1406 a. Piper Aircraft Co. v. Reyno 1981 airplane crash Scottish decedents; manufactured in US; owned and operated by UK/Scottish entities; Scottish components that could allow lawsuit to be tried there; Court: not okay to refuse transfer because substantive law is less favorable to plaintiff, but if there s no available remedy, this is a big consideration; has to consider what law would apply and then what result would likely be; before transferring to Scotland, US plaintiffs must allow themselves to be impleaded in Scotland; doesn t care that Scotland will have to apply PA law if issue is with propeller rather than pilot; doesn t want to split case because of different results that are possible. III. Increase in forum non conveniens litigation a. US court system provides attractive institutional option for foreign plaintiffs i. Contingent fee, extensive discovery, etc. b. Internationalization of product-related injury claims against United States companies c. Human rights and incorporation of international law into domestic law created niche for plaintiffs living abroad to file suit in US IV. Must be another more convenient forum where plaintiff can obtain adequate relief a. But see Islamic Republic of Iran v. Pahlavi 1984 NY dismissed case despite lack of another forum, saying this was just the most important factor b. International tribunal not necessarily sufficient to obtain relief PAGE 14 OF 46

15 i. Nemariam v. Federal Democratic Republic of Ethiopia-2003 DC no certainty of getting relief for a meritorious claim, thus no dismissal CHOICE OF LAW I. Only an issue when there is diversity jurisdiction, which is always based on a state law claim II. III. IV. Applicable law: 28 U.S.C Rules of Decision Act (RDA) Original doctrine: general law exists, and judges only say what it is; in doing so, they are not bound by the decisions of other judges in the court system; instead, they look at all sources of law and proclaim what the law is, unless legislature passes a law required to accept this. a. Swift v. Tyson 1842 Tyson gave check to swindler, who signed over check to Swift; Tyson refused to pay Swift since land he originally purchased with check was fraudulently sold; question: does RDA require federal courts to comply with state legislative acts and judicial decisions? Court: just the statutory laws. b. Problem with Swift i. People manipulate the system to get the best law for them 1. Black & White Taxicab C. v. Brown & Yellow Taxicab Co one taxi company had contract with train station not to allow other taxi company to be at train station; to sue the disfavored taxi company, the favored company reincorporates in another state and sues under diversity jurisdiction so that general law will apply and the contract will be enforced. ii. Despite efforts at uniformity, if legislature in one state passed the law and legislature in another state passed a different law, there would be conflict. State judges also continued to interpret the law as they wished. Erie Doctrine: there is no distinguishing between statutes and state common law; there is no general law (or federal common law); Constitution granted power over tort, contract, etc. law to states; thus, allowing federal common law to govern it would be unconstitutional a. Erie R. Co. v. Tompkins 1938 Tompkins on parallel path to railroad, when train came by with something protruding from open door and severs Tompkins arm; sues for negligence based on open door; PA law would make Tompkins a trespasser with no duty owed to him; general law would allow him to recover. b. Rule: federal courts must apply the state law of the state in which they sit. c. How to choose between federal and state law i. Substance vs. procedural? ii. Right vs. remedy? iii. Vitally vs. formally/negligibly iv. Alters result vs. doesn t matter v. Is there a conflict? vs. Can both apply? V. Post-Erie Case History a. Substantive versus Procedural i. If the procedural rules affect how case will turn out, must apply state law. 1. Guaranty Trust Co. v. York 1945 Guaranty got people to buy stocks for their bonds, making them the last to recover after it goes PAGE 15 OF 46

16 VI. bankrupt; sued, but statute of limitations different in state/federal; must use state limitations statute a. not constitutional compulsion, but matter of policy 2. Problem: when do procedural rules not affect outcome? b. Administrative efforts to eliminate suits in federal courts merely to avoid state rules i. Rule 3 (filing complaint = statute tolled) not to govern questions concerning tolling of statutes of limitations; thus, state law would determine in diversity when the statute was tolled. 1. Ragan v. Merchants Transfer & Warehouse Co lawsuit filed within 2 year statute of limitations, but not served until after; KS law dictated serviced must be made within 2 year period, but Rule 3 said that suit was commenced by filing of the complaint. ii. Federal court must apply state statute requiring security-for-expenses bond, even though federal rule does not require bond. 1. Cohen v. Beneficial Industrial Loan Corp 1949 Court: Rule did not contradict NJ statute, but was addressed to independent concerns. iii. If state courts closed to corporation, then it cannot maintain a diversity suit in that state. 1. Woods v. Interstate Realty Co may have been overruled There are different tests based on how the federal rule was promulgated. a. Hanna v. Plumer 1965 Mass requires service in person, but Rule 4(d)(1) allowed service to be made by leaving summons/complaint with wife; Court: federal rule applies; distinguished from Ragan based on intent to govern b. Types of rules i. If a constitutional rule, then it applies regardless of any state law. ii. If it is a conflict between a federal statute and a state law, the issue is whether Congress had the authority to enact the federal statute. 1. If arguably procedural, federal statute must be applied. a. Stewart Organization, Inc. v. Ricoh Corp upheld application of 1404, which mandates case-by-case consideration, over a state practice that refused to enforce forum selection since 1404 is arguably procedural. i. Heavy presumption that federal statute will apply 2. Based on Rules of Decision Act (?) as interpreted in Erie? iii. If it is a conflict between a Federal Rule and state law, the federal rule will apply since Rules Enabling Act gives them authority, as long as they do not abridge, enlarge, or modify a substantive right; should not construe rules narrowly to avoid conflict 1. Hanna 2. If it does not abridge, enlarge, or modify substantive rights in the guise of regulating procedure, rule is within ambit of congressional power. a. Sibbach v. Wilson & Co PAGE 16 OF 46

17 b. Procedural rules which incidentally affect substantive rights are permissible i. Burlington Northern R.R. Co. v. Woods 1986 Appellate procedure rule 38 okay because it affects only the process of enforcing litigants rights and not the rights themselves. iv. If it is a conflict between a federal judicial practice and state law, state law should apply if the issue is outcome-determinative or if it concerns substantive law. 1. Hanna c. Courts can avoid these types of considerations by denying that there is a direct conflict between the rules. i. Walker v. Armco Steel Corp no conflict between Rule 3 service requirement and Oklahoma s law requirement because Rule 3 only prescribed point for calculating various time requirements under Federal Rules, not statute of limitations ii. Contradicts what Hanna says about not interpreting rules narrowly CHOICE OF LAW BETWEEN STATES I. Procedural rules of the forum will always apply. Always have. a. Neumeier v. Kuehner NY II. Originally: State where injury occurred is the state whose law would apply. a. Alabama Great Southern R..R Co. v. Carroll 1893 AL RR company s employee injured by another employee s negligence in AL, but injury did not occur until train was in Mississippi; Court: MS law applies, even though every other relevant event took place in AL i. Important distinction because MS has fellow servant doctrine, which does not allow employee to sue employer for fellow employee s actions while AL does allow this. III. Can apply different state s laws to different questions that arise in lawsuit a. Babcock v. Jackson 1963 NY NY residents riding to Ontario, accident there kills Jackson; Ontario law prevents guest in car from suing driver; NY: we might apply Ontario law to determine if there was negligence, but we are not using Ontario law to tell us if there can be a lawsuit at all. IV. Apply law where accident occurred unless both driver and passenger are from the same state. (Another holding?) a. Neumeier v. Kuehner 1972 NY - NY Driver, Ontario passenger, Ontario accident zero interest case - neither NY nor Ontario has an interest in prosecuting this case. V. No constitutional limits on choice of state law. PLEADING I. Rule 8 General Rules of Pleading a. Claims for relief - jurisdiction; entitle dot relief, demand for relief b. Defenses admit/deny averments; if not enough information, say so; etc. c. Affirmative defenses d. Effect of failure to deny when not denied, considered to be admitted PAGE 17 OF 46

18 II. III. IV. CIVIL PROCEDURE OUTLINE e. Pleading to be concise and direct; consistency i. Can set forth multiple grounds as basis for lawsuit, etc., even if they contradict each other f. Construed to do substantial justice. Rule 84 forms are sufficient under the rules. Pre-1938 Code pleading a. Lots of details, used to weed out baseless lawsuits i. Gillispie v. Goodyear Service Stores 1963 insufficient connection between facts and law/relief 1938 Federal Rules of Civil Procedure change to notice pleading a. Complaint is not the time to weed out complaints; it s a notice device; need to ensure that people get their day in court i. Dioguardi v. Durning d Cir. almost incomprehensible complaint; court bends over backwards to allow the lawsuit to proceed ii. Conley v. Gibson short plain statement suffices iii. Can dismiss for having too much information (?) Deyo v. Internal Revenue Service 2002 CT ANSWER TO COMPLAINT I. Rule 8 a. Defendant can admit, deny, or plead insufficient information in response to each allegation in the complaint. b. 8(b) allows general denial, but this is generally discouraged. i. Can be used effectively Ways v. City of Lincoln Neb denied since not specifically admitted as described in terms of the general denial. c. 8(d) - All averments to which defendant does not specifically respond are deemed admitted. II. III. When D admits to part of complaint that is later discovered to be false, he can be held responsible. a. Zielinski v. Philadelphia Piers, Inc forklift case; admits to being the company that operated forklift, but says later that it is not, after statute of limitations has run. Court: must allow the case to proceed because to do otherwise would deny plaintiff his day in court. i. Compare to Beeck v. Aquaslide N Dive Corp When a defendant denies something that is obviously true, it is likely that the court will deem it admitted anyway. a. Biggs v. Public Serv. Coordinated Transp d Cir. denied it was a New Jersey corporation via general denial. AMENDMENTS I. Rule 15 Amended and Supplemental Pleadings a. Generally: to provide maximum opportunity for claim to be decided on its merits, not procedural technicalities; only to provide notice of nature of the claim/defense and transaction. b. Amendments may amend pleading; if after 20 days, may have to get permission of court, but permission should be freely given. PAGE 18 OF 46

19 II. CIVIL PROCEDURE OUTLINE c. Amendments to conform to the evidence may be made at any time, but failure to amend does not affect result of trial of those issues. d. Most of the time, amendment of a pleading relates back to date of original pleading e. Can file a supplemental pleading setting forth events that have happened since date of original pleading. Allowing amendment to pleading when facts show it to be true is not an abuse of discretion. a. Beeck v. Aquaslide N Dive Corp th Cir admitted to making aquaslide repeatedly, but when inspected by company, it was determined that they did not manufacture the product in question. Appeals Court ruled that district court did not abuse its discretion (standard of review for amendments to pleadings). MOTION FOR DISMISSAL (ON THE PLEADINGS) I. Rule 12 (b) a. Defenses other than the ones listed below are made in responsive pleadings. i. Lack of jurisdiction over subject matter ii. Lack of jurisdiction over the person iii. Improper venue iv. Insufficiency of process v. Insufficiency of service of process vi. Failure to state a claim upon which relief can be granted 1. if this motion is made and there are matters outside the pleading presented, motion should be treated as a motion for summary judgment (rule 56) vii. failure to join a party under rule 19 b. Standard: a judge must treat all factual allegations in the complaint as if they were true and draw all reasonable inferences in favor of the plaintiff; no evidence, only pleadings II. III. Rule 12 (c) a. Can make a motion to move for judgment on the pleadings, but if it involves matters outside the pleadings, it should be treated as a motion for summary judgment (rule 56) b. Usually filed after or at the same time that answer is filed while 12(b) is filed prior to answer. c. Standard: a judge must treat all factual allegations in the complaint as if they were true and draw all reasonable inferences in favor of the plaintiff; no evidence, only pleadings Cannot dismiss a case because the facts establishing a prima facie case are not included in the complaint. a. Swierkiewicz v. Sorema N.A Title VII discrimination case, but facts are not all established in complaint; SC: do not need to provide prima facie case, just need have short & plain statement of the claim showing that the pleader is entitled to relief. Can be no heightened standard for pleading rule allowing heightened pleading standards articulated in rule 9(b) so that must mean that that standard is not to be applied elsewhere. PAGE 19 OF 46

20 IV. Combining improper complaints with proper complaints does not render them all invalid. a. American Nurses Association v. Illinois th Cir. - pleading gender discrimination based on the fact that predominately male professions make more than predominately female jobs; comparative worth accusation; Posner: need more than this, but because there are other allegations that could be viable, we ll let the suit proceed. V. Focus may be shifting to showing claim to relief rather than short & plain statement a. Bell Atlantic Corporation v. Twombly 2007 alleging Sherman 1 violation between major telephone companies that would prevent local phone companies from establishing themselves; allegation of parallel conduct without any evidence of specific agreement; Court: without agreement, nothing is illegal; letting this suit go forward would require too much discovery, etc. PRELIMINARY INJUNCTION I. Rule 65 a. (a)(1) - Notice must be given; b. (a)(2) - This hearing can be consolidated with trial on the merits, and even if it is not consolidated, all evidence submitted for it is on the record, need not be admitted again. c. Security must be given by the applicant for the payment of losses suffered by party who is found to have been wrongfully enjoined/restrained (but not by US). d. Order - i. Must include specific reasons for issuance, without reference to documents ii. Is binding only upon parties to the action, their agents, etc. who receive II. actual notice Requirements to obtain preliminary injunction a. Likelihood of success i. Includes jurisdictional issues b. Irreparable harm c. Balance the equities d. Not harmful to public interest TEMPORARY RESTRAINING ORDER I. Rule 65 a. (b) can be given without notice if immediate and irreparable injury will result before opposition can be heard, along with efforts to give notice and reasons why notice should not be required. b. Time requirements, not to exceed 10 days, etc. application for preliminary injunction should follow, and if it does not, court will dissolve TRO NOTICE I. Due Process Clause requires a. Notice of commencement of the action and the issues involved in it. b. Adequate opportunity to present their side of the case to the court. II. Cases decided before Mullane s reasonable effort standard PAGE 20 OF 46