CIVIL PROCEDURE Prf. Staszewski Fall 2017 I. Attack Sheet... 2 II. Outline... 8 Chapter 1: Persnal Jurisdictin... 8 Chapter 2 Subjective-Matter Jurisdictin... 14 Chapter 3 Erie Dctrine... 17 Chapter 4 Litigatin... 19 Chapter 5 Summary Judgement / Directed Verdict / JNOV... 29 Chapter 6 Preclusin... 33 Chapter 7 Jinder f Claim and Party... 35 III. Anntated Rulebk... 37 IV. Imprtant Case Brief... 61 Use Attack Sheet fr usual essay questin, Outline fr mre cmplicated ne r yu frget the rules. Use Rulebk (mainly the translatin part) fr related multiple-chice questin. Use Imprtant Case Brief fr case cmparisn, if needed.
I. Attack Sheet 1. Persnal Jurisdictin (including SJ) - Based n physical presence (why? Cntemprary fairness; traditinal practice) - If nt physical presence Fairness: minimum cntact (cntact, hw related, fair service) svereignty established way: 1) purpseful availment; 2) knws will cause harmful effects within the state; 3) D s cnduct arise ut f r relate t P s claim Arguably stream f cmmerce with cnsideratin by the vlume, the value, and the hazardus character f the cmpnents. ratinale r fairness : 1) vluntarily and knwingly; 2) subject t state fr the benefit they received. Nt by freseeability. Reasnableness: fair play and substantial justice Burden f Defendant; Interest f plaintiff; Interest f frum state; Interest f federal system (internatinal cmity) - Service: Physical presence/in persnam: 1) persnally served with prcess in the state (Pennyer, Burnham); traditinal practice r fairness 2) Serving summns r wavier f service (Fed. Civ. Pr. Rule. 4) In Rem: (Pennyer) Attach prperty + cnstructive ntice: usually adequate (Mullane) Due Prcess Inquiry: abve is true, if P abandn r has caretaker But nt, if the caretaker 2. General Jurisdictin: Nt in sme way but SO cntinuus and systematic cntact with frum state Sense at hme; The curt refused t expand the traditinal limitatin, nly applies GJ t places where it is incrprated and principle place f business. Limited applicatin nt by parent cmpany 3. Subject Matter Jurisdictin: 1. Federal Jurisdictin: Federal Questins - cases that "arise under" federal law Art. III (judicial pwer, certain cases, nly SC and Cngress t lwer federal curts and their jurisdictin), 1331 (all civil actins arising under federal law) It has t be P s riginal cause f claim, nt affirmative defense. Diversity Jurisdictin, 1332 State f United States: Citizenship fr the purpse f diversity jurisdictin is based n dmicile, 1) physical presence AND 2) an intent t remain. Freign state/natin: A resident is NOT citizen f a freign state. Crpratin: The phrase principle place f business in 28 U.S.C. 1332 refers t the place where a crpratin s high-level fficers direct, cntrl, and crdinate the crpratin s activities. never center test 2. Supplemental Jurisdictin a. Efficiency cmmn nucleus f perative facts b. Exceptin: 1) a nvel r cmplex issue f State law; 2) state law predminates ver the claims f federal law claim; 3) dismiss the federal law claim, nly left state law claim; 4) exceptins 3. [Prcedural] Remval 2
a. Exceptin: Defendant cannt remve t federal curt in his hme state. b. Caterpillar: efficiency Under Erie, cnsideratin f finality, efficiency, and ecnmy becme verwhelming At the time f judgement is entered. 4. Erie: state law claim filed at federal curt due t diversity jurisdictin a. Fr substantive law (cause f actin / elements f claim): has t be state law; b. Fr prcedural law, federal law generally gverns c. Questins presented: 1) What is substantive law, what is prcedural law? 2) Fr the prcedural part, when shuld the curt use federal law, when shuld they use state law? d. Framewrk fr analysis: 1) Questin 1: Is it a substantive law r prcedure law questin? 1. Apparent substantive law: elements f the claim state law 2. Prbable prcedure questin r grey area? (Erie) Questin 2 2) Questin 2: Des a federal rule f civil prcedure / a federal statute gvern the situatin NOT a federal practice? 1. Yes Questin 3 a. Questin 3: 1) Is it permissible under Rule Enabling Act: they cannt abridge, enlarge r mdify any substantive right + 2) Is the federal r statute cnstitutinally permissible? i. Yes. Federal law ii. N. state law 2. N Questin 3.1 r 3.2 a. Questin 3.1, Byrd Test: federal practice v. likelihd f different result in state curt i. Balancing Test: State law r federal law b. Questin 3.2, Hanna: Wuld disregarding state law prmte frumshpping r inequitable administratin f the laws? i. Yes, State law ii. N, federal law 5. TRO r PI test: A plaintiff seeking preliminary injunctin must establish: a. that he is likely t succeed n the merits; b. that he is likely t suffer irreparable harm in the absence f preliminary relief c. that the balance f equities tips in his favr; d. that an injunctin is in the public interest. e. Reasning: 1) 1) + 2) factrs: reject balancing test: fr 9 th Circuit, if the likelihd f the merits is very high, then just a pssibility f irreparable harm suffices. 2) Balancing Equities: interest f natinal securities v. prtect marine mammals and envirnment. 1. Navy: depends n prfessinal s judgement; used fr 40 years; the nly reliable technlgy fr that purpse; ideal lcatin fr exercise 2. Animal: Curt nly lks at the interest f P (prtectin rganizatin), nt animals themselves. 3) Public Plicy: Curt did nt lk at them, fr bth parties represent Public Interest; if there was any, they did it at 3). 6. Pleading Prblem: a. Nte: all raise under abuse its discretin claim. b. Pleading: 1) legal and factual sufficiency (plausible, nt mere legal cnclusin) 2) Sme specific requirement fr Fraud r misrepresentatin 3
3) Mral Litigatin: evidential supprt/nt changing the law/nt fr imprper purpse + curt s discretin f granting sanctin c. Pre-Answer: 1) mtin t dismiss (4 waivable + 3 nn-waivable) 2) judgment n the pleading (delay MTD); strike a mtin t strike d. Answer: 1) Denial: partial denial must be specific + lack inf (deny) + nt deny (admit) 2) Affirmative Defense: e. (Amending Pleading): 1) Befre trial: time requirement; r ther party s cnsent; r curt s rder 2) During and After: 1) curt s rder(bjectin): help n the merits + n prejudice; 2) cnsent: as if this is raised at the utset. 3) Relatin Back: 1) same cnduct; 2) within 120 days; 3) ther party shuld have knwn + n prejudiced. 7. Factual Sufficiency f Claims: a. Disregard mere legal cnclusin (cntra Cnley v. Gibsn) We begin ur analysis by identifying the allegatins in the cmplaint that are nt entitled t the assumptin f truth. b. Assess whether remaining ( well-pleaded ) factual allegatin plausibly give rise t an entitlement t relief ( We next cnsider the factual allegatins in respndent s cmplaint t determine if they plausibly suggest an entitlement t relief. ): 1) Is it mre likely than nt that defendant is liable based n the well-pleaded facts? 2) Is there a (significantly?) mre plausible, alternative explanatin? c. Special Requirement: Rule 9 1) In alleging fraud r mistake, a party must state with particularity the circumstances cnstituting fraud r mistake. Malice, intent, knwledge, and ther cnditins f a persn's mind may be alleged generally. 8. Pleading and mtin: first stage a. (b) representatin t the Curt: (f pleading) 1) nt fr imprper purpse; 2) legal cntentins that are warranted by existing law, r by nnfrivlus argument fr (extending, mdifying, r reversing) existing law r establishing new law; 3) factual cntentins have evidentiary supprt (r have it after discvery); 4) denial f factual cntentin is based n the evidence, r lack f inf. b. (c) sanctin: within the curt's discretin t decide if they want t impse sanctin n ne party 1) mtin by D: 1) separate/independent mtin; 2)21 days safe harbr: 2) nature f sanctin: nnmnetary directives; penalty t curt; payment t D's lawyers' fee. c. (d) nt applicable t discvery 9. Relatin Back: a. Same "cnduct, transactin, r ccurrence" as riginal cmplaint b. The new D has received sufficient "ntice f the actin" within the Rule 4(m) perid (i.e. 120 days frm filling f suit) 1) received such ntice f the actin that it will nt be prejudiced in defending n the merits; and 2) knew r shuld have knwn that the actin wuld have been brught against it, but fr a mistake cncerning the prper party s identity. 10. Discvery: Unless therwise limited by curt rder, the scpe f discvery is as fllws: Parties may btain discvery regarding any nnprivileged matter that is relevant t any party s claim r defense and prprtinal t the needs f the case a. Relevance: 4
1) make a material fact mre r less likely t be true 2) directly relate t the claim (e.g. temper management is irrelevant t sexual harassment claim) b. Privilege: 1) Attrney-client privilege: 1. crpratin s lawyer = emplyee s lawyer 2. bss s lawyer emplyee r victim emplyee s lawyer 2) Wrk Prduct privilege: qualified privilege 1. in anticipatin f litigatin. Nt discverable UNLESS: a. They are therwise discverable due t relevance and prprtinality; and b. Substantial need + cannt get it frm ther way 2. Lawyer's cmments (mental impressin, cnclusins, pinins, r legal theries cncerning the litigatin) are nt subject t disclsure. c. Prprtinality: 1) Imprtance f the issues at stake in the actin 2) Whether the burden r expense f the prpsed discvery utweighs its likely benefit 3) The imprtance f the discvery in reslving the issues 4) Parties' relative access t relevant infrmatin 5) The amunt in cntrversy: mnetary damage P sued fr 6) Parties' resurce: hw much mney they culd spend n this case d. (Burden f Discvery: if burden fr bth parties are same) 1) Specifying the recrds that must be reviewed 2) Giving the interrgating party a reasnable pprtunity t examine and audit the recrds and make cpies --> aka, let the P t examine themselves risk f discvery ther ptential lawsuit. 11. Summary Judgement: a. The curt shall grant summary judgment if the mvant shws that there is n genuine dispute as t any material fact and the mvant is entitled t judgement as a matter f law. b. Mvant party shws that the material cited d nt establish the absence r presence f a genuine dispute, r that an adverse party cannt prduce admissible evidence t supprt the fact. c. weigh the evidence in the light mst favrable t nnmving party 1) assuming nn-mvant s testimny is true, whether a reasnable jury wuld render a judgment favr f P. 2) Awful evidence, even if that is true, will nt preclude mving party frm winning. d. Nte: 1) Burden f prf is the same; mving des nt need t negate the claim. 2) Credibility f witness is a factual issue. 3) General evidence cannt disprve specific evidence. 12. Directed Verdict / JNOV + new trial a. If a party has been fully heard n an issue during a jury trial and the curt finds that a reasnable jury wuld nt have a legally sufficient evidentiary basis t find fr the party n that issue. 1) If apple v. range --> range wins (this case, nt s sure evidence v. direct eyewitness) 5
2) If range v. range --> jury questin (e.g. there are ther direct eyewitness t shw there was a cllisin, then jury t decide) b. JNOV and/r new trial 1) JNOV means that there was n evidence wuld allw a ratinal jury t favr ne party --> but there is evidence frm P and his witness 2) New trial: (trial curt) the jury is against the weight f evidence 1. T crrect law prcedure (wrng jury instructin r evidence) 2. T crrect what the judge viewed as flawed verdict issue f credibility and discretin. 13. Preclusin a. Claim preclusin: "res judicata" 1) were r prbably culd be decided at the previus lawsuit. 2) Everyne shuld have his wn day in curt 1. Traditinal Apprach: ne suit precludes a secnd where the parties and the cause f actin are identical mutual parties and claims 2. Restatement f Judgement: actins invlved the same cmmn cre f perative facts and the same transactin. 3) Exceptin: adequate representatin 1. Interests are aligned. 2. Party understd herself t be acting a representative capacity (in case fr prtectin f class actin) r the riginal curt tk care t prtect the interest f the nnparty. 3. Ntice given: prcess service b. Issue preclusin: cllateral estppel 1) The issue that has been actually decided. 1. When 1) an issue f fact r law is 2) actually litigated and determined by 3) a valid and final judgment, and 4) the determinatin is essential t the judgment, and the determinatin is cnclusive in a subsequent actin between the parties, whether n the same r a different claim. 2) Preclude the re-litigate f certain issue (nt barred the issue) 3) Defensive nn-mutual Cllateral Estppel: 1. Culd plaintiff have easily jinted the prir actin? 2. Were the stakes in the first lawsuit sufficiently high? (incentive t argue against) 3. Wuld the secnd lawsuit prvide additinal prcedural safeguard? (jury) 4. Are there already incnsistent judgments n the issue? 5. Are there ther reasns t questin the reliability f the prir judgment. 14. Jiner a. Test 1) whether the claim is under civ pr statute? 1. rule 18 (a): jinder f claim (independent r alternative) 2. rule 13: cmpulsry(related) r permissive (unrelated) cunterclaim 3. rule 20(a): jined defendant r plaintiff all abut arises ut f the transactin r ccurrence cunterclaim: that is the subject matter f claim parties: questin f law r fact cmmn t all parties. 2) whether there is jurisdictin? 1. federal questin, 2. diversity citizenship, 3. supplemental jurisdictin: cmmn nucleus f perative facts -- n if there is n cmplete diversity 3) Exceptin (prtectin): embarrassment, delay, expense, r ther prejudice. b. Cnslidatin and Separate Trial: avid delay, t expedite and ecnmize (but n prejudice) 6
c. Third party claim: 1) Only applies t party that is legally required t reimburse fr prtin f liability 1. Fr indemnificatin in cntract r cntributin in trt. 2) CANNOT if the D seeks t shift blame t smene else (it was him nt me! ) 7
II. Outline Chapter 1: Persnal Jurisdictin Specific Jurisdictin 1. Pennyer v. Neff: a. persnal service and persnal jurisdictin: hw t serve b. in rem (including quasi-in rem) and in persnam jurisdictin c. (Handut): Lack f jurisdictin because he was neither persnally served with prcess in the state (in persnam jurisdictin) nr was his prperty attached prir t the initiatin f the lawsuit (in rem jurisdictin). 2. Internatinal She: a. Persnal Jurisdictin: Minimum Cntact nt quasi-in rem b. General Jurisdictin c. Reasnableness: fair play and substantial justice d. (Handut) Due Prcess requires nly that D have certain minimum cntacts with the frum state such that the maintenance f the suit des nt ffend traditinal ntins f fair play and substantial justice. e. (Handut) Tw categries f in persnam jurisdictin i. General Jurisdictin: when the cntacts are s substantial and f such nature as t justify suit against D n causes f actin arising frm dealing entirely distinct frm thse activities. ii. Special Jurisdictin: 1. Minimum Cntact: 2. Related t the claims: 3. Reasnable frm f ntice: f. EE Nte: i. minimum cntact: lk at the quality and nature f the cntact a single cntact may suffice t PJ. ii. privilege and benefit f frum state respnd t lawsuit the case/claim must arise frm D s cntact with the frum state. 3. Hansn v. Denckla: a. (Handut)Purpsefully avails itself f the privilege f cnducting activities within the frum state, thus invking the benefit and prtectin f its law bligatin requires t respnd t a suit brught t enfrce them. 4. Shaffer v. Heiner: absrbing in rem jurisdictin a. N minimum cntact attach unrelated prperty des nt render jurisdictin (but under Pennyer rule, that is kay) b. D nt rely PJ n persnal service c. (Handut) Exercise f quasi in rem jurisdictin vilated due prcess because D did nt have minimum cntacts with state. All assertins f state curt jurisdictin must be evaluated accrding t the Internatinal She standard. 5. Wrld-Wide Vlkswagen v. Wdsn: stream f cmmerce a. Freseeability is nt a benchmark fr jurisdictin b. Minimum Cntact: i. Purpsefully avail itself fr the privilege f cnduct activities in the frum state ii. Deliver its prduct in the stream f cmmerce with expectatin be purchase. find ut why c. (Handut) Freseeability alne has never been a sufficient benchmark fr persnal jurisdictin under Due Prcess. Rather persnal jurisdictin exists if D purpsefully avails itself f the privilege f cnducting activities in the frum state r delivers its prducts int 8
the stream f cmmerce with expectatin that they will be purchase d by cnsumers in the frum state. 6. Asahi v. Superir Curt: a. Majrity: vilatin f reasnableness fair play and substantial justice i. Burden f Defendant; Interest f plaintiff; Interest f frum state; Interest f federal system (internatinal cmity) ii. Balancing Test iii. (Handut) persnal jurisdictin in this case wuld vilate traditinal ntins f fair play and substantial justice because the exercise f jurisdictin wuld be unreasnable, even if minimum cntacts existed. b. Dispute: minimum cntact i. Have t be purpsefully avail itself fr privileges f cnduct activities; (hand ut) purpseful actin by D directed twards the frum state. ii. stream f cmmerce is enugh put the prduct int the stream f cmmerce with expectatin that prduct will be purchase at frum state; (handut) injecting gds int stream f cmmerce with freseeable destinatin. iii. Steven Factr: (handut) by the vlume, the value, and the hazardus character f the cmpnents. c. New Questin: whether exercise f persnal jurisdictin will vilate Due Prcess (fair play and substantial justice)? 7. Burger King v. Rudzewicz a. Sliding Scale: Minimum cntact v. reasnableness (fair play and substantial justice) b. (Handut) fair play and substantial justice: i. Once it has been decided that a D purpsefully established minimum cntacts with the frum state, these cntacts may be cnsidered in light f ther factrs t determine whether they cmprt with fair play and substantial justice. ii. These cnsideratins smetimes serve t establish the reasnableness f jurisdictin upn a lesser shwing f minimum cntacts than wuld therwise be required. iii. Where a D wh purpsefully has directed his activities at frum residents seeks t defeat jurisdictin, he must present a cmpelling case that presence f sme ther cnsideratin wuld render jurisdictin uncnstitutinal. 8. J. McIntyre v. Nicastr a. (4 justices, handut) Due Prcess = lawful pwer = traditinal practice, nt free fall ntin f fundamental fairness i. P s cnsent (waive); ii. citizenship r dmicile/knwingly and cnsistently engage in activities targeted at frum state (general, physical presence); iii. persnal service within the state (physical presence); and purpseful availment (minimum cntact? privilege=respnd t suit) iv. In this case (handut): D did nt take purpse actin that was directed at the frum state (r knwingly and intentinally target its activities at the frum state ) b. (3 dissents) i. (handut)due Prcess = cntemprary ntin f fairness and reasnableness; Nt Svereign Pwer (r Traditin Practice) ii. D was subject t persnal jurisdictin because it puts its prduct in the stream f cmmerce, knwing that it wuld be sld there (irrespective f its use f a natinal distributr). 9. Abduch v. Lpez: a. Sliding Test Interactivity and nature f the cmmercial activities cnducted ver Internet Psitive: knwing and repeated transmissin f cmputer files ver Internet; clearly ding business at the frum state n the Internet Middle: exchange infrmatin with the hst cmputer 9
Level f interactivity and cmmercial nature f the exchange f inf Negative: merely pst infrmatin which is available fr view b. Calder Effects Test Rule: [A] defendant s trtius acts can serve as a surce f persnal nly where the plaintiff makes prima facie shwing that the defendant s acts (1) were intentinal, (2) were uniquely r expressively aimed at the frum state, (3) caused harm, the brunt f which was suffered and which the defendant knew was likely t be suffered [in the frum state]. Distinguish: In Calder, it wasn t just the plaintiff s CA residence that mattered, but the phne calls t CA surces fr the stry and the substantial sales f the tablid in CA. In Fire, by cntrast, the nly link t Nevada was the D s knwledge that Nevada was ne f the states in which P resided nt enugh. Hyp: thrw baseball at smene utside the state. c. (Handut) D was nt subject t PJ at Neb because their internet-related business activities in the state were nt related t P s claim. Mrever, the advertisement at issue was directed at the entire wrld, rather than aimed specifically at Neb, and Lpez did nt knw that Abduch was a resident f Neb. d. (EE Nte): D wh cmmits an act utside the state that she knws will cause harmful effects within the state, she may be subject t minimum cntacts jurisdictin there fr claims arising ut f that act. General Jurisdictin 1. Precedents: a. Perkins v. Benguest: Sued a Philippine crpratin at OH, where the cmpany's affairs (GM, stckhlder) were verseen during Wrld War II --> General Jurisdictin b. Helicpters: helicpter wned by Clmbian crpratin crashed in Peru crpratin's helicpter purchases and purchase-linked activity in Texas were insufficient t subject it t Texas curt's general jurisdictin 2. Gdyear Tires v. Brwn a. the crpratin's affiliatins with the State in which suit is brught are s cnstant and pervasive "as t render it essentially at hme in the frum State." b. nly if they designed, manufactured, marketed, and distributed the prduct --> general jurisdictin c. (Handut): Eurpean subsidiaries f Gdyear USA were nt subject t general jurisdictin because they were in n sense at hme in NC. Their attenuated cnnectins t the State, fall far shrt f the cntinuus and systematic general business cntacts necessary t empwer NC t entertain suit against them n claims unrelated t anything that cnnects them t the State. d. (EE Nte): The curt rejected the argument that cntinuus sales int the state suffice t supprt general jurisdictin Places that crpratin fairly regarded as hme; the curt identifies dmicile, place f incrpratin, and principal place f business as paradig[m] bases fr the exercise f general jurisdictin We dn t knw if there culd be third place subject t general jurisdictin. Nte: apprach t decide general jurisdictin is different frm the apprach f deciding crpratin s citizenship, which is nerve center. 3. Daimler AG v. Bauman: 10
a. (Handut) Nt subject t general jurisdictin because it was in n sense at hme in CA. The exercise f PJ ver Daimler in CA wuld als be unreasnable based n the risks t internatinal cmity that the 9 th Circuit s expansive view f general jurisdictin psed. b. We have declined t stretch general jurisdictin beynd limits traditinally recgnized General jurisdictin has cme t ccupy a less dminant place in the cntemprary scheme [, which are] the place f incrpratin and principle place f business. c. In sme sense "cntinuus and systematic" is nt enugh, it must be s "cntinuus and systematic" as t render it essentially. 4. Burnham v. Superir Curt a. Scalia (4): Pennyer was decided arund the adptin f 14 th Amendment articulated at Pennyer persnally served within the state (Handut) bright line rule: amng the mst firmly established principles f persnal jurisdictin in American traditin (and ne cmmnly accepted at the time the Furteenth Amendment was adpted) is that the curts f a state have jurisdictin ver nnresident wh are physically present in the state. b. Brennen (4): Independent inquiry int fairness; critical insight frm IS: all rules abut jurisdictin must be subject t cntemprary understanding Take advantage f CA law/privilege, like purpseful avail itself f the privilege in the frum state invking benefit respnd t lawsuit. Vluntarily and knwingly present at the State (Handut) Case by case Inquiry: 1. Due Prcess generally permits a state curt t exercise jurisdictin ver a D if he is served with prcess while vluntarily and knwingly present in the frum. 2. It is necessary t undertake an independent inquiry t the fairness f the prevailing in-state service rule. 3. The critical insight f Shaffer is that all rules f jurisdictin, even ancient nes, must satisfy cntemprary ntins f due prcess. 4. [3 judges] criticizes the subjectivity, and hence, inadequacy, f Justice Brennan s apprach. c. Stevens (1): (Handut) Traditin + Fairness + Cmmn Sense = Easy Case. d. Nte: this rule des nt apply t crpratin s PJ (lwer curt split n agency test) 5. BMS v. Superir Curt f Califrnia a. Minimum Cntact state cercive /svereignty (defeat efficiency) They are a cnsequence f territrial limitatin n the pwer f the respective States. The states retain many essential attributes f svereignty, including, in particular, the svereign pwer t try causes in their curts. The svereignty f each State implies a limitatin n the svereignty f all its sister State. The Due Prcess, acting as an instrument f interstate federalism, may smetimes act t divest the State f its pwer t render a valid judgment. b. (New Questin) Related t the claims: hw clsely the relatin shuld be? U.S. Supreme Curt: fairly related C.A. Supreme Curt: sliding scale the weaker the cntact, the tighter the relatin. Acknwledged ways: 1. Purpsefully avails itself f the privilege f cnducting at frum state. 2. Intentinally and knwingly targeted at the frum state. c. (Reasnable frm f ntice/service) d. Reasnableness: fair play and substantial justice Burden f Defendant: (the mst imprtant) Interest f Plaintiff Interest f Frum State 11
Federalism; internatinal cmity e. (Handut) BMS s activities in CA were nt sufficiently related t the claims: What is needed and what is missing her is a cnnectin between the frum and the specific claims at issue. Other way f establishing PJ 6. Carnival Cruise Lines v. Shute (Cnsent-Efficiency) a. Benefits: Designate the place, prviding certainty, saving mney; Cnsumer als saved mney frm this; Nature: Passengers cmes frm all ver the wrld. b. Test: Cnsent-t-jurisdictin clause is subject t judicial scrutiny fr fundamental fairness. c. [Handut] Fundamental Fairness did nt preclude the enfrcement f a frumselectin clause cntained in tickets issued by a cruise line t its passengers when there was n bad faith, fraud, r verreaching (i.e., Flrida was a sensible place t cnduct the litigatin) and plaintiffs essentially cnceded that they had ntice f the prvisin. 7. Mullane v. Central Hanver Bank & Trust C. a. [Handut] (Landmark Principle): An elementary and fundamental requirement f due prcess in any prceeding which is t be accrded finality is ntice reasnably calculated, under all the circumstances, t apprise interested parties f the pendency f the actin and affrd them an pprtunity t present their bjectins. b. Pennyer: attach prperty + cnstructive ntice adequate but nt reliable c. Ratinale: CS is just supplementary. Attachment f prperty is the main way t deliver infrmatin. Yet the P neither abandn their prperty, nr their agent within the state culd deliver it. (Their agents are adversary.) Peple wh wns prperty will care abut the prperty if it is attached. --> reasns why this way is usually kay "A state may indulge the assumptin that ne wh has left tangible prperty in the state either has abandned it, in which case prceedings against it deprive him f nthing, r that he has left sme caretaker under a duty t let him knw that it is being jepardized. 8. Federal Civ Pr Rules: Rule 4 a. Tw Questins needs t be answered: Did P cmply with the rule? If nt, the D culd dismiss the case fr insufficiency f the prcess. Whether reasnable under the circumstance? (due prcess cnsideratin) b. Waiver f service is substitute fr persnal service --> inexperience, mst frequent way t d this; c. (e) ptins t serve individual within U.S. (1) fllw state law, r (2) (A) persnal service (like Pennyer); (B) leaving a cpy at its residence t sme respnsive adult; (c)delivering a cpy f t an agent authrized by law. d. (h) crpratin: (A) state law, fllwing (e)(1) (B) fficer, managing r general agent/r agent authrized by appintment r by law. (c) if it's utside the U.S., fllwing (f), except (f)(2)(c) (i) e. (1) Serving summns r wavier f service establishes persnal jurisdictin: (A) fllw the state rule (B) fr Third-Party practice and Required Jinder Parties within U.S. and nt mre than 100 miles frm where the summns issued. --> wrks fr defendants near NY, DC r DE, they usually are acrss a river frm these districts. 12
9. Self-Impsed Regulatins: nt tested at fall 2017 1) Lng-arm statute: Jurisdictin ver persns must be authrized by the state r federal gvernment in additinal t Cnstitutin Every state authrizes persnal jurisdictin if the D is persnally served within the State. (Pennyer rule) Many State authrized the persnal jurisdictin as much as the Cnstitutin allws. Minrity rule: lng-arm statue e.g. Fla. Engage in substantial and nt islated activity within this state, whether such activity is whlly interstate, intrastate, r therwise, is subject t jurisdictin Requires mre activities r cntacts t allw service f prcess than minimum cntact Test: 1) des the lng-arm statute in this state allw its curts t assert jurisdictin? 2) due prcess questin: is asserting jurisdictin n the facts f this case cnstitutinal? 2) Venue: Lcated litigatin nt just within state, but als which federal judicial district in a state. 2011, Cngress, Clarificatin Act; 28 USCS 1391 If all defendants are the residents f a same state, any district curt If there's nn-resident, the law suit filed at the place where it happened. (a substantial part f the events r missins giving rise t the claim ccurred; r a substantial part f prperty that is the subject f the actin is situated) If bth f them des nt wrk, pick any f them Certain rganizatin r freign individual (a defendant nt resident in U.S.) culd be sued anywhere Failure t cmply --> dismiss under 12(b)(3), lack f persnal jurisdictin/subject matter/inapprpriate venue. 3) Transfer: Frm ne district t anther within the same judicial system Fr the cnvenience f parties and witness, in the interest f justice E.g. Cruise Line Case: Federal WA --> Federal FL, 1404 Als exist in the State. 4) Frum nn cnveniens: incnvenient frum Cmmn law dctrine Dismiss fr frum nn cnveniens --> transfer t a different judicial system, Prduct by freign citizens based n accidents at Sctland, will be mved t Sctland -- >freign plaintiff, happened at freign cuntry Use Pennyer as the way f giving ntice, nt establishing persnal jurisdictin --> usually kay, but nt very reliable. 13
Chapter 2 Subjective-Matter Jurisdictin 1. Federal Jurisdictin: Federal Questins - cases that "arise under" federal law Art. III (judicial pwer, certain cases, nly SC and Cngress t lwer federal curts and their jurisdictin), 1331 (arise under federal law) The district curts shall have riginal jurisdictin f all civil actins arising under the Cnstitutin, laws, r treaties f the United States -- 1331 Diversity Jurisdictin, 1332 E.g. citizen f different states 2. Supplemental Jurisdictin 3. [Prcedural] Remval Federal Jurisdictin 1. Luisville & Nashville Railrad v. Mttley: what is arise under federal questin. a. What is arise under? Well-pleaded cmplaint "A suit arises under the Cnstitutin and laws f the United States nly when the plaintiff's statement f his wn cause f actin shws that it is based upn thse laws r that Cnstitutin." An essential element f a claim r defense rests n federal law. b. Prbable Test: The questins is, des a state-law claim 1) necessarily raise a federal issue, 2) actually disputed and substantial, 3) which a federal frum may entertain withut disturbing any cngressinally apprved balance f federal and state judicial respnsibilities. Nt tested: 1. Federal statute authrizing riginal jurisdictin is mre narrw/strict than Cnstitutin Art. III. a. Cases based n state law but invlving federal issues, ges t state curts, fr Cngress des nt want t swamp federal curts. 2. Article III authrized federal curt including SC n appeal t hear issues under federal law. If the state curt did nt interpret federal issue well, the federal curt culd fix them. 3. Cngress culd amend 1332, giving federal curts riginal jurisdictin ver wellpleaded cmplaint AND just invlving federal issues. Shuld they d that? a. Hw des a curt decide whether the issue is under federal law? just by reading the face f well-pleaded cmplaint. 4. If they amended it, then the rule will be hard t apply, since a curt cannt decide by many direct r indirect claims in the pleading c. [Handut] A suit arise under the Cnstitutin and laws f United States fr purpse f 28 U.S.C. 1331 nly when the plaintiff s well-pleaded cmplaint is based upn federal law. d. [Handut] Here, there was n federal subject matter jurisdictin because issues f federal law wuld likely arise nly as an affirmative defense and in addressing plaintiff s reply t that defense, nt in plaintiff s riginal claim (which was fr breach f cntract under state law). 2. Redner v. Sanders: persnal citizenship a. Test fr citizenship: State f United States: Citizenship fr the purpse f diversity jurisdictin is based n dmicile, 1) physical presence AND 2) an intent t remain. Freign state/natin: A resident is NOT citizen f a freign state. b. Applicatin CA+NY v. NY+NY, N, cmplete diversity (d)(2) Mexic v. Japan, N, n prvisin abut nly freign citizens. 14
CA v. JP+MX, Yes, (a)(2) CA+MX v. NY+MX, Yes, (a)(3)-partial aggregatin t diversity, it waives the cmplete jurisdictin Only under judicial interpretatin f federal statute, nt under Art. III CA+MX v. JP, N, n(a)(2) and n (a)(3), literally interpretatin f statute. CA v. NY @ federal CA ver divrce. NO, fr divrce is state law issue. 1992, family case falls ut the diversity scpe, even thugh P and D cme frm different states. c. [Handut]: The federal district curt dismissed a case against New Yrk defendants fr lack f subject matter jurisdictin because there was n diversity f citizenship. The plaintiff was neither a citizen f France (which wuld have authrized diversity jurisdictin under 1332(a)(2)) nr a citizen f Califrnia (which wuld have established diversity jurisdictin under 1332(a) (1)). 3. Hertz Crp v. Friend: crpratin s citizenship a. [Handut] The phrase principle place f business in 28 U.S.C. 1332 refers t the place where a crpratin s high-level fficers direct, cntrl, and crdinate the crpratin s activities. never center test b. Nte: efficiency Old test: where the crpratin des a lt f business --> SC reject this apprach shuldn t be mre cmplex than half f grss incme. It's the price we have t pay t avid verly cmplex jurisdictinal administratin while prducing the benefits that accmpany a mre unifrm legal system. Supplemental Jurisdictin 1. Histry: a. Prmte efficiency: b. United Mine Wrker v. Gibbs: It exists whenever there is a claim within the cnstitutin jurisdictin and utside the cnstitutinally enumerated jurisdictin f the federal curts. c. U.S.C. 1367, Supplement Jurisdictin (a), "are s related t claims", whether it's under cmmn peratin facts cmmn nucleus f perative facts "can" questin (b), cannt vilate cmplete diversity jurisdictin: if the riginal suit was established by diversity, if a jinder claim will break it. NO jurisdictin (c), exceptin, "shuld" questin: 1) a nvel r cmplex issue f State law; 2) state law predminates ver the claims f federal law claim; 3) dismiss the federal law claim, nly left state law claim; 4) exceptinal circumstance (ther cmpelling reasns) d. Quality rather than quantity requirement fr adding state law questins. 2. In re Ameriquest Mrtgage C. Mrtgage Lending Practices Litigatin a. Class Nte: Whether the state claims can be reslved r dismissed withut affecting the federal claims They cmbine t tell the same stry, because he did nt knw her right, did nt cancel, mrtgage verstated, she cannt affrd. b. [Handut] The district curt denied defendant s mtin t dismiss plaintiff s state law claim fr lack f supplemental jurisdictin because the state and federal claims were cnnected by cmmn and perative facts (they were, in fact, inextricably intertwined), and there was n cmpelling reasn fr the curt t decline t exercise supplemental jurisdictin. 3. Szedrey-Rams v. First Bancrp a. [Handut] The district curt granted Defendant s mtin t dismiss plaintiff s state law claims fr lack f supplemental jurisdictin because the Puert Ric [state] law claims 15
predminated ver plaintiff s federal claim under Title VII and there were nvel and cmplex issues f Puert Ric law. b. Illustratin: Predminated state law claim: D fired P nt mainly fr sex r natinal rigins, but fr her whistle blwer. Nvel r cmplex claim f state law: cncerns attrney-client privilege, the P.R. law remains silent abut it This is an issue f Puert Ric law that has yet t be addressed by the Puert Ric curts and which is imbued with imprtant cnsideratin f public plicy. Remval 1. Remval is Defendant s mtin t remve the case frm state t federal curt; Remand is Plaintiff s mtin t remand the case frm federal t state curt as a reactin fr remval. 2. Fed. Civ. Pr. Rule: a. U.S.C. 1441: Remval (a) applies t all civil actins (b) limitatin fr diversity cases (may nt be remved) 1) Defendant cannt remve, if the suit is filed at a defendant's (r any f defendants') hme state 2) <-- ratinale behind federal trial is t avid discriminatin at state curt, but here D cannt have discriminatin in state curt. (c) (1) (b) + (2) meaning 1) If a case cntains federal and state law claims, D culd remve the whle case t federal curts. But the federal curt culd nly keep the federal issue and remand the state law issues. b. U.S.C. 1446: prcedure fr remval (b) (2) all defendants must jin in r cnsent; (c) requirement; based n diversity f citizenship. (1) A case may nt be remved if (3)'s situatin happened mre than ne year after cmmencement f the actin, unless the P acted in bad faith. c. U.S.C. 1447 Remand (c) time limitatin: 1) If remand n basis f any defect besides (ther than) SJM, 30 days 2) If remand fr lack f SJM, n limitatin until the case enters a final judgement. (d) an rder t remand a case back t state curt --> Nt reviewable n appeal (Defendant cannt appeal fr a granted remand rder) unless there is civil right claim r regarding U.S. fficial. 3. Caterpillar, Inc. v. Lewis: efficiency a. [Handut] A district curt s errr in failing t remand a case imprperly remved is nt fatal t the ensuring adjudicatin if federal jurisdictin requirements are met at the time judgement is entered. Once a diversity case has been tired in federal curt, with rules f decisin supplied by state law under the Erie dctrine, cnsideratins f finality, efficiency, and ecnmy becme verwhelming. b. Illustratin: Under Erie, if the case were decided at state curt, KY state law; if at state curt, still KY state law same substantive law. Cngress s main theme; expeditius superintendence. 16
Chapter 3 Erie Dctrine 1. Test if there is cnflictin a. Questin 1: Is it a substantive law r prcedure law questin? Apparent substantive law: regarding elements f the claim state law Prbable prcedure questin r grey area? (Erie Prblem) Questin 2 b. Questin 2: Des a federal rule f civil prcedure / a federal statute gvern the situatin NOT a federal practice? Yes Questin 3 1) Questin 3: 1) Is it permissible under Rule Enabling Act: they cannt abridge, enlarge r mdify any substantive right + 2) Is the federal r statute cnstitutinally permissible? Yes. Federal law N. state law N Questin 3.1 r 3.2 1) Questin 3.1, Byrd Test: federal practice v. likelihd f different result in state curt Balancing Test: State law r federal law 2) Questin 3.2, Hanna: Wuld disregarding state law prmte frum-shpping r inequitable administratin f the laws? Yes, State law N, federal law 2. Erie Railrad v. Tmpkins a. Whether state substantive psitive law include state cmmn law? It used t be just be rules and enactments prmulgated by the legislative authrity theref. Yes: federal gvernment f limited and numerated pwer nly d what Cngress authrize them t d nt general cmmn law in Cnstitutin uncnstitutinal t exercise federal cmmn law. b. [Handut] The Cnstitutin requires federal curt t apply state cmmn law in diversity cases. It was already clear that state psitive law applied in diversity case and as Justice Reed s cncurring pinin recgnized, n ne dubts federal pwer ver prcedure. 3. Guaranty Trust C. v. Yrk a. Questins: (state) statute f limitatin v. (federal) equitable tlerance This is prcedural questin (thugh n ne dubts federal pwer ver prcedure) Plicy cncerns b. [Handut]Outcme Determinative Test Federal curt sitting in diversity shuld apply a state law that cnflicts with federal practice when disregarding the state law wuld significantly affect the utcme f the litigatin. c. [Handut] The lwer federal curts therefre erred by refusing t apply the state statute f limitatin based n a cntrary federal practice. 4. Byrd v. Blue Ridge Rural Elec. C-Op., Inc. a. Questin: (state cmmn law) bench trial v. (federal) jury trial It s arguably prcedural questin Cnstitutin-inspired federal practice f jury trial > state cmmn law Thugh the result is mre likely t be different. 17
b. [Handut] The federal curt was nt required t fllw a state supreme curt decisin hlding that the trial curt, rather than a jury, shuld determine whether the plaintiff was a statutry emplyee wh was cvered by the state wrkers cmpensatin statute. c. [Handut] The requirement appeared t be merely a frm and mde f enfrcing the immunity, and nt a rule intended t be bund up with the definitin f the rights and bligatins f the practice (prcedural questin), and the imprtance f the federal practice utweighed the likelihd f a different result in state curt. 5. Hanna v. Plumer a. [Handut] Service f prcess in a diversity case in federal curt is gverned by Rule 4 f the Federal Rules f Civil Prcedure b. Framewrk fr Analysis fllwing Byrd and Hanna 1. Substantive rules f state law apply under Erie. If, hwever, state-law rule r practice is ratinally capable r classificatin as either substantive r prcedural, then: 2. Des FRCP r federal statute gvern the situatin and cnflict with state law? a. If s, is FRCP permissible under the Rules Enabling Act (i.e., rules f practice and prcedure )? b. If s, is FRCP r statute cnstitutinal? c. If s, federal rule applies under Hanna 3. If answer t (2) is n, curt shuld a. Balance t the imprtance f a cnflicting federal practice against the likelihd f a different utcme in state curt under Byrd; and/r b. Examine, under Hanna, whether disregarding state law wuld: i. Encurage unseemly frum-shpping, r ii. Lead t inequitable administratin f the laws c. If s, curt shuld apply state-law rule; If nt, curt shuld apply federal practice. 18
Chapter 4 Litigatin I. Incentive t litigatin: Damage and TRO 1. Backgrund: a. Cmpensatry (substitute) damage: P bears the burden f prf b. Punitive damage: punishment r determent functin after cmpensatry damage --> cannt be grssly accessible r will be uncnstitutinal, usually nine (9) times f cmpensatry damage: (statutry damage: minimum damage awards decreed by legislatin, used when cmpensatry damage is hard t prve) (liquidated damage: An amunt cntractually stipulated as a reasnable estimatin f actual damages t be recvered by ne party if the ther party breaches.) c. Specific relief: perfrmance f cntract, injunctin fr ding r refraining ding smething The mst cmmn cmmanding is injunctins; thers like replevin. In equitable relief, the curt will lk at the adequacy f the relief. d. Declaratry judgement: prtective nature, like the cpyrights lawsuit Usually used in insurance and patent litigatin, but als in ther claims except tax disputes Federal Declaratry Judgement Act, 28 U.S.C. 2201 1. Seeking frm a curt a declaratin f their rights withut seeking r being in a psitin t seek any cercive such as damages r an injunctin. 2. Prcedure fr declaratry judgment in the federal curts is gverned by Rule 57. But because the cases r cntrversies d nt really happen, s it might be a hypthetical case, nt a cncrete factual cntrversy (federal curt has limited jurisdictin ver them) 2. Trupe v. C&S Whlesale Grcers, Inc. a. [Handut] The federal district curt denied plaintiff s mtin t remand because the defendant has carried its burden f prving that, if plaintiff prevails, her damage will mre likely than nt exceed the minimum jurisdictinal amunt (i.e., > 75,000). b. Rule fr assessing damage: If it's apparent, then just remve; lng-term medical expenses, mental and physical pain and suffering, lss f enjyment f life, lss f wages and earning capacity and permanent disability and disfigurement r ther serius injuries if nt apparent, require the party wh brings this mtin t prvide mre relevant evidence Defendant s Burden 1441 (c) (2) in diversity case D s burden t prve c. Reasning: Lng-term medical expenses (pain cntinuing mre than a year), lss f wages and earning capacity (huse cleaning service, reducing the number f huses that she culd clean due t her injury) 3. Fed. Civ. Pr. Rule. 65 a. R. 65 (B) TRO: Temprary Restraining Orders TRO can be issued withut nticing the ther party; The reasn why it shuld be rdered withut ntices must be stated by curt and the btaining party, therwise it will vilate the due prcess Expiratin: nt exceed 14 days; the curt culd extend anther 14 days; r/and if the adversary agrees, it culd extend mre. "14 days + 14days + what the adversary agrees" b. R. 65 (A) PI: Preliminary Injunctin A PI cannt be issued withut hearing If it fails, the adversary culd appeal it immediately, as an exceptin f "final judgement rule", which usually requires the adversary party waits the final judgement f the case, and then appeal. 4. Winter v. Natural Resurce Defense Cuncil, Inc. a. [Handut] A plaintiff seeking preliminary injunctin must establish: that he is likely t succeed n the merits; that he is likely t suffer irreparable harm in the absence f preliminary relief that the balance f equities tips in his favr; that an injunctin is in the public interest. 19
b. [Handut] Sliding Scale fr the first and secnd factrs: In Dicta The Curt suggests, in dicta, that the Ninth Circuit s standard, which nly requires a pssibility f irreparable harm in sme circumstances, is t lenient, and that plaintiff must demnstrate that irreparable harm is likely in the absence f a preliminary injunctin. c. [Handut] Hlding: [E]ven if plaintiff have sme shwn irreparable injury frm the Navy s training exercises, any such injury is utweighed by the public interest and the Navy s interest in effective, realistic training f its sailrs. A prper cnsideratin f these factrs alne required denial f the requested injunctive relief. d. Reasning: 1) + 2) factrs: reject balancing test: fr 9 th Circuit, if the likelihd f the merits is very high, then just a pssibility f irreparable harm suffices. Balancing Equities: interest f natinal securities v. prtect marine mammals and envirnment. 1. Navy: depends n prfessinal s judgement; used fr 40 years; the nly reliable technlgy fr that purpse; ideal lcatin fr exercise 2. Animal: Curt nly lks at the interest f P (prtectin rganizatin), nt animals themselves. Public Plicy: Curt did nt lk at them, fr bth parties represent Public Interest; if there was any, they did it at 3). II. Pleading: Sufficiency; Ethical Limitatin; Cmplaints Legal & Factual Sufficiency 1. Rule 8: A pleading which sets frth a claim fr relief shall cntain: a. A shrt and plain statement f grunds upn which the curt s jurisdictin depends b. A shrt and plain statement f claims shwing that the pleader is entitled t relief; c. A demand fr jurisdictin fr the relief the pleader seeks. 2. Haddle v. Garrisn: frm district curt t Supreme Curt a. [Handut] The district curt errneusly dismissed plaintiff s cmplaint fr failure t state a claim upn which relief can be granted, because interference with at-will emplyment may give rise t a claim fr damages under Civil Rights Acts f 1871. b. Reasning: Rule 12 (b): fur defenses must be raised in pre-answer stage, r regarded as waive. Lack f persnal jurisdictin, imprper venue, insufficient prcess; insufficient service f prcess. Emplyment at will is nt prperty fr purpses f the Due Prcess Clause, des nt mean that lss f at-will emplyment may nt injur[e] [petitiner] in his persn r prperty fr purpses under 1985(2) c. The plaintiff culd petitin fr rehearing En Banc: re hearing the previus case If the majrity f the circuit agrees t re hear the case, then they culd re hear the case withut binding cases. 3. Bell Atlantic Crp. v. Twmbly t expensive a. Backgrund: Cney v. Gibsn, a cmplaint shuld nt be dismissed frm failure t state a claim unless it appeared beynd dubt that the plaintiff can prve n set f facts in supprt f his claim which wuld entitle him t relief. b. [Handut] Plaintiff cmplaint did nt state a claim fr relief under 1 f the Sherman Act because stating such a claim requires a cmplaint with enugh factual matter (taken as true) t suggest that an agreement was made. (i.e., plausible factual allegatins are required). c. Nte: requiring enugh factual matter taken as true that the claim was made --> plausible factual allegatin f a cnspiracy --> plausibility pleading "gate keep functin f pleading" 20
Eliminate really weak cases at the pleading stage in rder t avid causing(expense) at the discvery stage. Be cautius t eliminate the case + the cst is expensive 4. Ashcrft v. Iqbal t burdensme a. [Handut] T survive a mtin t dismiss, a cmplaint must cntain sufficient factual matter, accepted as true, t state a claim fr relief that is plausible n its face. b. [Handut] Apparent Analytical Framewrk Disregard mere legal cnclusin (cntra Cnley v. Gibsn) ( We begin ur analysis by identifying the allegatins in the cmplaint that are nt entitled t the assumptin f truth. ) Assess whether remaining ( well-pleaded ) factual allegatin plausibly give rise t an entitlement t relief ( We next cnsider the factual allegatins in respndent s cmplaint t determine if they plausible suggest an entitlement t relief. ): 1. Is it mre likely than nt that defendant is liable based n the well-pleaded facts? 2. Is there a (significantly?) mre plausible, alternative explanatin? c. Nte: Rule A claim has facial plausibility when the plaintiff pleads factual cntent that allws the curt t draw the reasnable inference that the defendant is liable fr the miscnduct alleged --> mre than a sheer pssibility Interpret Twmbly: 1. Threadbare recitals f the elements f a cause f actin des nt suffice. It has t be mre than cnclusin. 2. a cmplaint that states a plausible claim fr relief survives a mtin t dismiss <-- by curts' judicial experience and cmmn sense. Tw Steps: 1. Cmplaints that are n mre than cnclusins, are nt entitled t the assumptin f truth. 2. If there are well-pleaded factual allegatins, then decide whether they plausibly give rise t an entitlement t relief. a. Is it mre likely than nt that defendant is liable based n wellpleaded fact? r b. Is there a mre plausible lawful explanatin? d. Critics: Credibility determinatin: based n judge s judicial experience and cmmn sense. Impracticability: hard fr judge t decide 1. Rule maker s sample: "n (date), at (place), the defendant negligently drve a mtr vehicle against the plaintiff." cannt satisfy Iqbal 2. Pssibilities: a. Only the wrd "negligently" is cnclusin, thers are facts b. Under the judge's discretin, it culd be said that there is mre likely than nt that this cllisin is the reasn that P gt injured (Res Ipsa Lquitur?) c. Or just let the P t amend the pleading. Have nt been adpted by any federal statute r practice. 5. Stradfrd v. Zurich Insurance C. pleading special matters a. [Handut] Defendant s cunterclaim failed t plead the circumstances cnstituting fraud with sufficient particularity under Rule 9(b) because it did nt specifically identify plaintiff s alleged lies, but the district curt granted leave t amend the pleading and cncluded that defendants subsequently satisfied the requirement f the rule. b. Rule 9: 21