Civ Pro Outline 2.0

Supplemental jurisdiction

- - Amount in controversey for diversity=over 75,000...75,000.01 Legal certainty rule: amount in controversy is determined from allegations of complaint; as general rule, if plaintiff alledges ability to recover over 75,000...defendant has to say with legal certainty that, based on the applicable law, they cannot recover 75,000 even if all the facts are true Ex. Alleges 40K in actual damages + 40,000 in punitive damages...but law that applies to case doesn't allow for punitive damages Law of aggregation: Relevant when it comes to diversity claims (state law claims tha happen to be in federal court) plaintiff alleges multiple claims or plaintiffs join up to alledge multiple claims. This law tells us that when plaintiffs can add up claims to be over 75K. If one plaintiff sues one defendant with multiple claims...3 different state law claims each for over 30K....this works. Separate and distinct claims (uallly not expect for over joint property): If two plaintiffs, each having claims over single defendant, P1 (40k) vs defendant. Plaintiff 2 (40 k) vs same defendant....neither claim by either plaintiff is over 75K...cant add them up to get over 75K. Separate and distinct rules...cant add up there claims if they're separate and distinct (almost all plans are separate and distinct). Exception...if join owners to property...ex, Two spouses join owners to 100 K house...house is burned down by negligent electric repairs...a rare claim thats not separate and distinct...each can claim the whole 100K Claim not separate and distinct... husband and wife in same car crash. Its this join property catergory that usally falls under seperate and distinct Suppleental jurisdiction: Two plaintiffs, P1 (80K) and P2 (25K)...and PN (75 K); If cases arise from the same body of facts...the rest make it in. CNOOF(Common Nucleus of Operative Fact...two claims or cases that arise out of the same fact...said to arise from a common nucleus of operative facts). This happens under law of supplemental jurisdiction. Supplemental jurisdiction: Cases with multiple claims and may have multiple partie; can we bring in Gibbs v. UMW: plantiff and defendant over same state.Plantiff brought claim against defendant under federal labor act. Plaintiff wanted to add state law claim of assault. If we looked at state law claim alone...not arising under federal law and no diversity either...no SMJ. Principle: With plaintiff with multiple claims, look at each claim independently and ask whether or not it has SMJ (fedral question or diversity claim). Before this case would have said "see ya" if no to both...this case established pre-cursor to supplemental jurisdiction...if as a matter of constitutional law 2nd case could ride in with first one and form "one consituonal case" (CNOOF [sometimes called STO]...arise form nucleus of same facts)...court called this pendant jursidicont, then ancillary jurisdiction, and now they're merged under "supplemental jurisdiction." Supplemental jurisdiction is all statutory now. If we have a case wit multiple claims, ask ourselves if any of these 3 ways to win: (1) F q? (2) Diversity (complete diversity +amount in controversy) (3) supplemental jurisdiction (only get to this if you have to...if you look at claim and determine not federal question or proper diversity...then ask yourself if you can use supplemental jurisdiction...can it go in riding along with proper federal claim?) 1367 Supplemental Jurisdiciton: Read A first...does court have power to accept supplemental claim (is there a claim that is indpenetly federal [diversity or Fed q]...if there is an "anchor claim," and determine if supplemental claims arise out of CNOOF. (b) Read B next. Does B take it away? B needs to be read only if there is no federal question anchor claim in case...apply B if and only if there is no federal question claim in case and only diversity. Ignore B if federal question claim. B excludes a list of claims: (talk about later); if B applies and no federal question claim serving as anchor claim...ask if supplemental claim **look up rest** (c) District courts can decline, in their discretion, supplemental claims if: Claim raises a novel or comlex issue of state law Supplemetnal law predominates over the federal anchor claim District court hs dismissed all claims over which it has jurisdiction In expcetionlal circumstances, there are other compelling reasons for declining jurisdiction Ameriquest: Federal truth and lending act specifies the form for loan transactions, including mortgages. Plantiffs and defendants...one claim under federal truth and lending act saying forum was inadequate because it overstated appraised value of house...says homeowner got phony appraisal and induced them to borrow more than they needed to borrow; made two other claims under state law from the same facts. Under 1367, court says arises under CNOOF (arise under the same loan transactoin). A is satisfiied. Does B apply here at all? No..this is a federal question anchor claim. C..is there any reason why court would want ot reject it? No complex or novel issue of state law..no; state tail wagging federal dog? No...claims at worst are coequal...TILA is really driving everything else. Everything else also checks out under C...so nothing for judge to say persudaes them to reject it. Some judges havent ruled this way; Some judges say TILA and operative fraud aren't same operative facts. This can boil down to how the judges view policy and want claims brought under TILA. Szendrey v. Frist Bancrop: Plantiff filing title 7 claim and saying fired for whistleblowing and being a woman. Also sued under a number of claims (whistleblowing, defamation, tortious inerfecne) under Puerto Rican law. Puerto Rican claims relate factually to firing...but go in different directions Could come out either way. Rooted in firing but claims branch quickly...federal claim has gender as an issue but the rest don't B doesnt apply...title 7 federal question Rejects in its discretion. Predominatees of state law claim and novel and complexity of state law claim. Says this is mostly a wrongful discharge case in relatiatnon under state law...appears title 7 thrown in to get it to federal court. - Quimbee: Where a federal court's sole basis for jurisdiction is diversity jurisdiction, § 1367(b) prevents a plaintiff, or a party who has joined or seeks to be added as a plaintiff, from adding claims via supplemental jurisdiction against certain parties, if the claims are not consistent with the requirements for diversity jurisdiction (either because the parties are not completely diverse or because the amount in controversy is not met). The U.S. Supreme Court has concluded that a court may exercise supplemental jurisdiction over a claim brought by a plaintiff, even if the claim does not meet the amount-in-controversy requirement, if (1) the claim is made by a prospective plaintiff seeking to join the suit under Rule 20, (2) against an original defendant, from whom (3) the prospective plaintiff is otherwise diverse. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005). However, the Supreme Court's holding in Exxon does not apply if the prospective plaintiff asserting the claim is not diverse. To hold otherwise would do away with the requirements for diversity jurisdiction entirely. Id. at 566-67. - Only use supplement jurisdiction unless you have to, meaning, with a multiclaim case look at each claim like a freestanding case...look at amount in controversey or regular diversity...if good its in, if not look at federal law...if good its in..if neither of these look at if its supplemental to some other claim in case you do have federal jurisdiction for it.

Judgement as a Matter of Law (JMOL)

Judgement as a Matter of Law: Pennsylvania Railroad v. Chamberlain Federal civil juries are between 6-12...often 8 to have two spares. Judge screens for jurors; then lawyers ask questions get to screen for cause ... and get a couple of prelimtory challenges (strike someone for no disclosed reason....can't discriminate against constitutionalty protected classes) Case timeline: Complaint....12(b)(6)..denied...discovery...summary judgement...denied..trial (pick a jury)...opening statements (preview what your evidence is gonna show)...P's case...P rests...D's case...D rest...P's Rebuttal (suppose to be new to meet new evidence in D's case)....Close of Evidence...Closing Arguments (can not only summarize what's in evidence but can also draw all reasonable inferences from the evidence, suggesting what jury should conclude)...Judy instructions given...jury deliberates...verdict announced (and they fill out a form that comes in 3 varieties...general (who won, P or D. If P, how much?), special(requires jury to go through element by element each part of P's claim and only if get pro P answer do they continue...in contract case: did they enter into contract case? No..end of case, yes....did they breach? No..end of case, yes...did they suffer damages, etc), general with interrogatories (hybird. Ask general verdict questions and has interrgoritoes that ask both....if inconsistent, interrogitroes tend to prevail). P's lawyer wants general...."don't overthink this jury...just have sympathy and transfer some money." 12(b)(6): take facts as alledged in complaint, read them in light most favorable to P, if they still cant win with all facts true...dismiss SJ: Know all of the facts after discovery...parties can forecast what can happen at trial; at this point, no genuine issue of material fact....jury would have to find this way...therefore no need to even go to jury. Rule 50, Judgement as a Matter of Law (JMOL)...use to be DV and JNOV: Can be made against a party when it has submitted its evidence on whatever the issue is.....in the old DV form, could come after P rest (D says we have seen what we have predicted, P has no created a jury issue on at least one essential element of its claim...no evidence that if believed would allow jury to find that there was a contract)...motion by defendant or after close of evidence (both parties can make a JMOL motion...difficult for P to make due to burden of proof reasons....D makes same case it made after P rest; either side, even without a chance of winning, should make this motion after close of evidence...be on the record of making this motion; after jury reaches verdict, both parties can make a JMOL (use to be called JNOV) motion....ask judge to flip verdict....to be eligible, due to reexaminatin clause, has to be on record that you made the motion after close of evidence; legally viewed as a rexamaination of that motion JMOL is only granted when the P's evidence will fail to raise an issue of fact. - JNOV: Judgement not withstading the verdict can only be granted once the jury has given a verdict and the moving party has previously made a JMOL motion; judge is allowed to "reconsider" the prior JMOL and rule the other way. It is NOT a reexamination of the jury verdict (and thus does not violate the 7th amendment). You can make a JNOV and condition new trial (new trial if JNOV is rejected. Like a backup plan. Also, new trial can be on a piece of the trial (i.e. damages) - If there is speculation, then driected verdict. Judge cannot weigh evidence or credibility of evidence (jury does that). No evidence=JMOL. Some evidence, but not "great weight"=new trial. Rule 49: Special Verdict; General Verdict General Verdict: jury states four lines (either for P or for D—preferred by P) Special Verdict: jury must answer a series of sequential questions before deciding who wins (ex: negligence case); jury must go through sequentially and only continue if thy find for the P in the previous step; if they find for the D at any step, then the verdict is for the D (more common—preferred by D) Hybrid Verdict: general verdict with written questions; court can enter judgment if it finds the answers to the questions to be consistent with verdict, or the judge can look to the answers to the special questions and send the jury back to make the verdict consistent with the answers Rule 59: New Trial (comes after jury's verdict, and can come as late as 28 days after) Ex: Allowed evidence that I shouldn't have=flawed procedure "Do-over" not a final judgment appeal New trial can be reversed on only abuse of discretion grounds Flawed procedures, Flawed verdicts, 59(d)=judge grants new trial but no party asked for it - Class notes: Rule 59: New Trial Two types of new trial motions (1)Flawed procedures: judge says I blew important evidence call (2) Flawed verdicts: where judge find even though more than chinchilla of evidence favoring P win jury gave P more credit than it was titled to...not a 7th amendment violation because remedy is a do over Pennsylvania Railroad v. Chamberlain (pp. 643): π has the burden of proof and π's evidence must not be speculation Facts: Witness' angle of accident is in question; man falls off middle train car—question of whether the third train car rear ended the second train car, which would make the Δ negligent; Δ's theory was that there was no collision and it was entirely π's fault for falling off the train car; directed jury to return a verdict for Δ due to Δ's stronger evidence. Holding: the evidence is insufficient to go to a jury not because Δ's evidence is stronger but because the π's evidence is impermissibly speculative since their witness could not see the accident (3 degree angle & he heard it, didn't see it); the strength of the Δ's case should be irrelevant in determining a directed verdict (since the π still has the burden of proof)Note: directed verdict is allowed in times where the jury is being invited simply to speculate and not to infer. Need a preponderance of evidence to defeat directed verdict. It was a coin flip here...not enough Lind v. Schenley Industries (pp. 653):Facts: π (secretary) alleges Δ (executives) (orally) promised π huge bump in commissions which would have made him second highest paid person in all of company; Δ moves for JNOV and new trial conditionally—district court grants BOTH. Evidence was P and his own secretary testified that the promise was madeHolding: Court of Appeals reverses JNOV and new trial (even though it usually grants one or the other). Note: The court is stressing that when the sole reason for the district judge to overturn a verdict has to do with his own assessment of the evidence, the original verdict should be reinstated because it is the jury's sole province to assess the weight of evidence. Obviously, jury believed the testimony, which is still evidence (albeit not a lot) Peterson v. Wilson (pp. 665): no reexamination of jury verdictsFacts: π claims his property interest was damaged when he was arbitrarily fired; Δ renews motion for JMOL and supplements with alternative motion for new trial; district court grants motion for new trial because based on the jury verdict, the jury basically disregarded the court's instruction. Judge questioned the jurors after trial, and they told him (impeached them)Holding: the district court cannot grant a new trial based on things that the jury members said to the judge about their process of arriving at a verdict—this is a violation of the 7th amendment's reexamination clause

Constituoinal analysis: - McGee v. Internaional Life Insurance - Hanson v. Denkla - World Wide Volkswagon v. Woodson - J Mcintyre v. Nicastro: - Abbaduch v. Lopez:

MC standard met with life insurance policy that was long-term, had continuous payments, all for long-term relationship that was important to plaintiff; relationship came from company soliciting business from the plaintiff, a CA resident. To see if contract meets MC standard, 1. Is it a big deal or relatively trivial deal to one of the parties? 2. Is it a one time, one shot thing or a longterm relationship? 3. How its made is also a important factor...in this case defendant solicited business plaintiff Manifest state interest: life insurance was an interest closely regulated by the state, so state has a manifest intereest in insurance; manifest interest helps tip the balance in a close case. Manifest interest is NOT giving forum just because a citizen of that state is invested in the suit - Neither MC was satisfied. Trust company didn't do business in FL or even advertise or solicit it there; untileteral contact with a forum state because of a 3rd party's actions isn't enough to satisfy the personal availment contact. - Foreseeability feeds into personal avilment side of minimum contacts....but its not defined as "could you see your product ending up in the forum state?" its "Could you reasonably see your car being in a legal dispute in the forum state?" Important for liability contact purposes: did they intend to be selling products in forum or was it just foreseeable that product might end up there because of someone else's activity? - Just isolated sales in forum state without specific efforts there...Nicastro, a NJ man became injured while using a machiene manufactored by J. McIntyre (English company). NJ Supreme court ruled that even though they had never marketed their goods or shipped them there, they had personal availement because of the stream of commerce argument....should have known their products could end up in any of the 50 states, including NJ. SCOTUS said J Mcintyre didn't engage in any activity purposefully directed at NJ...so personal availment contact not met. - Lopez was a bookseller who sold a book that was autographed and inscribed by a famous person and stolen. They were HQ'd in MA and owned no real estate in Nebraska, 2 of the 1,000 people on its mailing list were in NE, did not advertise in NE, and had only $600 out of $3.9 million sales in NE. Abduch discovered that the inscription was posted on their website and sued for an invasion of privacy. Trial court dismissed for lack of PJ over Lopez; appealed to NE Supreme Court...they said Sliding test is used to asses personal jurisdiction from internet business. Post info....->Interactive....-> Does business (A)If it involves entering into contracts and the knowing and repeated transmission of computer files over the internet, personal jurisdiction is proper. (B)If it simply post info, thats not enough for PJ (C) If falls between these two categories, level of interactivity and nature of website must be examined. Here, the website was interactive and allowed customers to browse and purchase books. However, level with interaction of NE was minimal and no evidence presented makes it appear that website was directed towards NE. Factors to consider in conjunction with scale (1)Nature of conduct: relatedness to issue/claim (2)Quantity of conduct: % of business in forums

Venue: Piper v. Reyno

Plane crash with Scottish citizens and pilot. Case filed in CA state court. Reyno is representative of victim's estate. Sues both companies. No connection to CA other than just wanting it because of sympathetic juries. - Piper has lots of planes in california with probably a lot of Hartzell propellers; if this is general jurisdiction, not gonna work because they aren't incorporated there or have nerve center there under at home doctornien. If specific..probably works with all the private planes in CA. - Then goes to CA federal court; then defendant ask for it to be moved to the middle district of PA under 1404. THEN defendants ask for it to be dismissed under FNC under pretense of it going to Scottish courts - UNDER 1404: If CA state court had kept this case, had plantids and defants for out of state and out of country...would whip out CA choice of law rules and applied those. CA federal district judge would look at this diversity case and would say "as far as choice of law, I'll do what a CA state judge would do..." When case is transferred, PA district juge was suppose to apply choice of law rule that CA federal district judge would do....so PA choice of law rules don't matter in this situation. What's the point of transferring? Fact-based, not a law-based thing - Standard of review: how much deference do you give to the original decision? Two basic standards of review in law: Use of discretion standard (factual): lower court decision stands if there's any reasonable basis for it De Novo (legal conclusions): ignore the lower court and do what you the appellate court thinks is reasonably correct; reveral is much easier here. Problem SCOTUS detected...PA court conducted reasonable analysis of gilbert factors. 3rd circuit applied de novo. SCOTUS reinstates PA court's finding on Gilbert factors...reversing 3rd circuit. Biggest think court of appeals did wrong...added something to gilbert factors...changed law of FNC by evaluating as a factor change in substantive law...SCOTUS said this was simply wrong. Rule most courts have taken from this: If anticipated new forum is "rule of law" country with ordelerly independent judicial system and provides any remedy in a case like this...its enough, more or less favorable law dosn't make a difference. In Scotland, you can get pilot brought in who defendant claims is really responsible; can't in PA because can't get personal jurisdiction to do in PA...this favors Scotalnd. As far as public interest, with public law analysis wherever this case applies will have Sctotish law probably apply...which means a jury would have to be instructed on Scotish Law...complicated and confusing...would be better to just do it in Scotland. Interest of Sctoland in the litigation: had citizens killed and could support policy change in Scotland. On balance factors favored Scotland. Court can impose conditonis on dismissal that it can be bright back in (ex. You're coming back here if you play around and let Scottish statute of limitations run)

Discovery

The process whereby parties find out about each other's cases. There should never be a piece of evidence that pops up that neither party has seen. Only limits on discovery are "privledge" (confidental info; more iron clad in that it is not easily overcome), work product immunity (more iron clad in that it is not easily overcome), work product immunity (lawyer files; more easily overcome than privledge); and proportionality...proportion the discovery to the signfiicane of the issue. Rule 26: General Discovery (a) Inital disclosures: at start of case, each party turns over names, adresses, documents, etc of evidence they expect to use (b) Discovery scope and limits (1) Sets general standard for what is discoverable (a) Much broader than what is admissible at trial (b) Hearsay may be kept out of trial, but it is discoverable (2) Proportional to needs of case - Added to keep cost and time down - prevents wealthier parties from bleeding out other parties (3) You may now object that it will exhaust all the party's resources - New rule, don't know exactly how this plays out (4) New electronic info treated like paper info (5) 26B3 - Generally, you can't appropriate the other lawyer's work Rule 26, Required Discolusre: Each side is required to turn over the evidence they have to other side. This includes name and adress, copies of all documents, computation of each catergory of damages claimed by the other party. for inspection and copying Rule 27-32, Deposition (Rehersal of in-court testimony) - Can compel a party to show up, take an oath to tell the truth, and take testimony as though in court. - Can ask about hearsay and other things - Can be taken in a foreign country - Can be taken with or without leave - Objections: parties should not interrupt or derail the deposition expect when they need to protect a privledge; objections in a deposition should be for projecting privledge and for the form of the questions stated (leading, etc). Other objections should be resrved until time of trial. You can use depositions at trial Rule 33: Interrogitories - Written questions under oath that can only be directed at parties. No more than 25 interrogitores per party to another party. Admissible. Rule 34, Document Production Request (inspection and copying of tangible objections) - Extended to electronic documents - Penalties for electronic document destruction - Spoilation (destrction of evidence) may lead jury to assume evidence was bad for other party Rule 36: Request for Admissions (written statement that must be admitted or denined under oath) - Related to interrgogitories - Only for parties (not witnesses); can be used on basic facts - Useful for authenticating other evidence. - Response to request for admission must be within 30 days after being served or silence if admission Rule 35: Physical and Mental Exam - Compel other party to comply with exam by your doctor if the other party has claimed physcial or mental disability Rule 37: Sanctions - 2nd stage of discovery; first is to compel Rule 45: Subponeas - Non-party witnesses turn over other evidence

Joinder

When you go beyond the realm of one P, one D, one claim...you're in joiner territory - For very joiner that you try to make, have to have: (1) Joiner Rule (2) SMJ: Federal Q, Diversity (including 75K requirement), ....and if neither of those applies, Supplemental Rule 13 (a) - Compulsory counterclaim rule. When P files complaint against D, D must assert any counterclaims it has against P that arise out of same STO as complaint. MUST means assert them in a counterclaim accompanying answer or be barred from asserting them later in that suit or another suit. Obligation accrues to any party defending any claim... ex. 3rd party defendant must evaluate its potential counterclaims against the D. - Almost always gets SJ if needed Rule 13(g) - Cross-claims. Claim between two parties on the same side of the V. ...between two D's almost always, and could possibly be between two P's. Must arise out of same STO as original complaint. Note: One D can use this rule to assert a contribution or indemnity claim against another; woulnd't have to use rule 14 to do that if party is already in case. - almost always get SJ if needed Rule 14: Impleader. D is brining IN a new party on a very specific theory: "If I, the D, have to pay P....you, TPD, have to reimburse me." Can't use rule 14 to say, "not me but them." ...aka saying P sued wrong party. Also, rule 14 is merely procedural....right to reimbursement depends upon statw law...right is called "contribution" in a tort case. This right is called "indemnity" in a contracts case. One a TPD is impleaded, rule 14 generally authorizes any party to claim against any other -Δ can bring in a Third Party (derivative liability) a) treat as a free-standing lawsuit when considering the burdens and duties of the third-party defendant -Δ must assert that if Δ is liable, then third party (TPD) is also liable for all or part of the claim against Δ through either: -Contribution among joint tortfeasers: tort theory Indemnification: K theory -π may bring in a new party when a Δ would be allowed to do so -Must be same transaction or occurrence -Supplemental jurisdiction in diversity case: Δ against TPD: always gets SJ. b) TPD against P: always gets SJ c) π against TPD in a pure diversity case: nevergets SJ Rule 18: The rule with no standards. When a party has asserted one claim against another party (ex. P v. D in complaint), claiming party may assert any other claims it has against defending party Rule 19: Rule used only be D's. The D gets into R. 19 by making a motion to dismiss the complaint under R. 12b7. The motion identifies an absent party and says that the case should be dismissed because it can't be fully and fairly litigated in that party's absence. The court turns to R. 19 and proceeds in three steps: 1. Is the absent party a R. 19a party? 2. If not, stop and deny the motion. If yes, then try to join that party. Whether the party is joined as a D or an involuntary P depends on facts and logic. Because a party joined as a P would be an involuntary P, the court must have personal jurisdiction over that party. 3. If you can't join that party because of a problem with personal or subject matter jurisdiction, then go to R. 19b to decide whether to dismiss the case (as in the Navajo/Hopi case in the notes; the Hopi claimed sovereign immunity, which means no SMJ over them) or go ahead without the R. 19 party (as the court did in Helzberg's) Persons Required to be Joined if Feasible. Required Party. D says there is an indispensable party out there, and the case cannot proceed unless they are joined. Indispensable party if: (A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (1) as a practical matter impair or impede the person's ability to protect the interest; or (2) expose an existing party to multiple inconsistent judgments -If court agrees that party is indispensable, then they bring the party in if: (a) Court has PJ through consent or MC (b)Court has SMJ (1)FQ: usually SuppJur under §1367(a) (2) Complete Diversity: NO SuppJur under §1367(b) ***if joined party objects to venue and joinder would make venue improper, that party must be dismissed What to do when joinder is not feasible Court uses the following factors to determine whether they should dismiss the case or proceed without party 1. Extent the third party or current parties would be prejudiced by a judgment made in absence of third party 2. Extent prejudice could be lessened by protective provisions in the judgment, shaping the relief, etc. 3.Whether judgment in person's absence would be adequate; and 4. Whether the plaintiff could get an adequate remedy if the case were dismissed for nonjoinder Rule 20: Rule P's use to sue multiple D's or join up with other P's at outset of case. Use STO test (a)(1) Parties MAY be joined as plaintiff if asserting right to relief arising out of STO (a)(2) Parties MAY be joined as defendant if asserting right to relief arising out of STO Rule 24: Intervenor. R. 24: Intervention. R. 24 and R. 19 parties are first cousins, if not siblings. A R. 24 party (like a R. 19 party) has an interest in the case that could be practically impaired in its absence. The difference is that the R. 24 party volunteers to come into the case, whereas the R. 19 party is joined whether it wants to be in or not. In deciding whether to grant a motion to intervene the court applies the three-step test recited in NRDC v. NRC. As I said, it's very hard to prove that an existing party provides adequate representation. Intervention of Right. Court must allow a third-party to intervene if: (A) they have an unconditional right to intervene by a federal statute; or (B) they (1) claim an interest relating to the property or transaction that is the subject of the action, (2) would be practically impaired if the action was disposed of, and (3) their interests are not adequately represented Permissive Intervention. Up to court when: see rule NO SJ in pure diversity case **NOTE: Under §1367, claims by PLAINTIFFS against parties under Rules 14, 19, 20, or 24, OR claims by persons proposed to be joined as PLAINTIFFS under Rule 19, OR seeking to intervene as PLAINTIFFS under Rule 24 are NOT GIVEN supplement jurisdiction in PURE DIVERSITY CASES. Applying 1367 in Joinder Situations Every joined claim requires subject matter jur: FQ, diversity, or—if and only if neither of those applies—supplemental. So, when you use one of these rules to add a new claim, whether or not it involves a new party, that claim requires SMJ. If you need supp jur over that claim, you turn to 1367. Here are some principles about how 1367 applies to the rules summarized above. - A test: same transaction and occurnace test. If multiple anchor claims, pick one that helps. Always pick Fed4eral Q claim if has one First, see if (a) will allow supp jur at all. It requires that the proposed supp claim be part of the same constitutional case as the original claim that has federal jur--which some cases call the "anchor claim." Despite a few exotic cases that suggest otherwise, the practical rule is that the supp claim must pass the CNOOF/STO test--same factual basis as the anchor claim. The 1367(a) test should always apply to a proper claim under any of the rules listed above (except R. 18, which has no standards; there you'll have to look at the facts case-by-case). The reason is that each of those rules embodies a CNOOF/STO standard, either directly or indirectly. If there's a FQ anchor claim, you can skip (b) and go to (c). If it's a diversity-only case, you have to apply (b) and see if your new claim is barred from supp jur. The only way to do this is to read through (b) closely and methodically—no shortcuts. The excluded claims are: (1) A claim by the original plaintiff in the case against a party joined under R. 14. Read it closely—it's only this claim (the so-called Kroger claim) that's excluded, not any other claim by or against a R. 14 party. (2) Any claim by or against a party joined under R. 19 or intervening under R. 24. In other words, in a pure diversity case, the claims of R. 19 and 24 parties don't get supp jur, whether they're joining as Ps or Ds. (3) Claims by a plaintiff against additional defendants joined under R. 20. It's not symmetrical: claims by additional R. 20 Ps against the D aren't excluded. Warning: This grant of supp jur shouldn't be read as overriding the complete diversity requirement of Strawbridge. It can be used to overcome amount in controversy deficiencies, but not complete diversity problems. (4) Even if (a) and (b) are satisfied, the court still has discretion under (c) not to take the supp claim. I don't think a court would ever use (c) to decline supp jur over a compulsory counterclaim. It's also extremely unlikely with a R. 14 impleader claim (an original impleader claim, not the subsequent ones that R. 14 allows). With other supp claims, work through the factors listed in (c). The two cases in the book are good examples. Note that both courts found that (a) was satisfied--CNOOF--and that (b) didn't apply, since there was a FQ. In the mortgage case, the court goes through the (c) factors and decides that none applies, so there's no reason to refuse the supplemental state claims. In the whistleblower bank case, the court finds ((c)(1)) that there are novel, unresolved issues of PR law better handled by the PR courts and ((c)(2)) that the PR claims are dominant, the real heart of the plaintiff's case. So it refuses to exercise supp jur over those PR law claims, even though it had the power under (a) and (b)

Subject tatter jurisdiction: Which court system can take this case? - What we evaluate wthi PJ vs what we evautale with SM - Deso this oucrt have federal SMJ? - Two big caterogires of cases for which federal courts have SMJ according to Article 3? - 1331 "arising under" vs article 3 "arising under" - Motley - Well-pleaded complaint rule -

Which court system can take the case? - Authroity of federal courts to hear certain types of cases derives from Artilce 3 of the US Consitution. Congress has extended most of the authoirty granted in article 3 to lower federal courts through statute. To have jurisdiction in the federal courts, you must have a consitutonal grant of power and a congressional statute (i.e. 1331, 1332) - State courti s persumed unless federal law tkaes it away (almost alawys by using eth word "exclusive") - Fedreal has limited SMJ....not to have smj nuless givento it by cognress. Federal courts have two types of smj: (1) exculsive(P has no choice but to file in federal court): patnet, copyrigth, antitrust....all excluivse to fedearl courts (2) Conucrrent(P has choice between federal and stte court): ex. trademark, civil rghts claism, diversity (can filed in eitehr federal or state court ...plantiffs' choice) - Evaluate PJ by focusing on the defnedant...whree they are and what hety have done and intend to do. SM focuses on the case - Does this court have federal SMJ? (1) Start with article 3....enumerates caterogries of cases which congress has authorized to create federal SMJ....two biggest are federal questions (1331..."arising under" ...does it arise under federal law? Key case is Motley and well-pleaded complaint rule) and diversity (1332..."complete diversity of citzenship...strawbridge v. Curtis) - Article 3 "arising under" vs 1331 "arising under": 1331 has been interpreted much more narrowly. - Motley: Family injured on a railraod given lifetime passes. Congress passes a statute saying "no more railorad passes" and the company doesnt renew their passes. They say we got these for injury and sue under federal question, alledging breach of contract. In an effort to get ahead of an objection that says breach of contract isn't a fedreral question, in their complaint they say will say an act of congress made them do it, and if congress did this it violated the due process caluse of the 5th amendment. SCOTUS said this isn't really a question arising under federal law and that the court doesn't have have SMJ...cites "well-pleaded complaint rule," ...hypothetical contruct used to decide if cases arise under fedreal law. (1) What is the basic cause of action that the plantiff's are asserting (breach of contract...arises under state law...anticipating the D's defense of having to do it because of a fedral statute and their planned rebuttal that it violates the 5th amendment doesn't matter) - Well-pleaded complaint considers the bare-bones legal theory and ask if it needs to be resolved under federal law....disregard any potential rebuttals or defenses - Motley 2 :After being thrown out of federal court, Motley goes to state court....goes back to SCOTUS on appeal (there's an apellate statute that allows SCOTUS to take a case from a state's highest court if a substantial federal law question is to be decided. This time SCOTUS takes it...because on the 2nd, borader arising under arising under article 5; said 1331 is very narrow and interpreted by application of well-pleaded complaint rule. In 2nd trial, looked at "arising under" under article 3 and the apellate statute. Decided what does this statute mean and does it violate the consitution. - WPC rule applies to 1331 "arising under" but not article 3 and other appellate statutes. - First time they filed under Artilce 3 and 1331 they didn't comment on the article 3 part and said WPC is how 1331 is interpreted. In Motley 2, filed under Artilce 3 and apellate jurisdiciton statute....said this time we'll take it because article 3 is broade - 1331 is about jurisdiciton of federal district courts...this has no application for cases filed in state court and tkane up under apellate jurisdictions under state courts.

Rule 15: Covers amending and supplemental pleading

Zelenski could have done this if rule 15 was avaliable. You might want to amend to change to admit, deny, or vice versa. Might want to change party (i.e. Sue correct party) A. Before Trial - Any pleading within 21 says of serving or within 21 days after being served with response is fair game for reeling it back in and amending. - If you can't becuse its too late, file a motion in court and get permission to amend or get other party's written permission - If amendment promotes fairness, court should grant it. Court starts with presumption that amendment should be allowed and requires opposite party's opposing amendment to persuade them otherwise. B. At Trial - Someone might ask to make amendment at trial (ex. file case for malpractice and want to raise new claim based on informed consent after something witness said....judge should favor this amednment, presuming that they're entitled to it, and the burden's on the D to prove that they shouldn't....basically saying it isn't fair because we haven't prepared for this....sometimes judge will grant and say, "we'll be fair to defense by extending trial by two weeks." B2: If you raise issue not covered in pleadings, D consents by not objecting to it C. Relationback: Only if you want to amend claim b adding new theory and/or party and its past statute of limitations. - If claim against new D or new claim against exsisting D, that claim was barred by statute of limiations in Zelenski...now 15C offers some ways around statute of limitations. Judge first applies B to see whether an amendment is allowed at all and then C to see if there's a way around the statute of limitations. - Amended claim filed after statute has run has to be related back to original filing (amanded claim will legally be deemed to have been filed at time of original complaint) - C1A: Look back at statute of limitations law...if state relation back (original filing date) law allows it, you can do it if this relation back law lets you do it but federal relation back law doesn't. Might have situation where federal relation back law 15C isn't as generous. - Check state relation back law...may use it but not required to. If its worse, ignore it. Only use it if its better than the amendment. - C(1)(b)-(c): First requirement of 15C is arising from the same facts...and if adding a claim against an exsisting party, this is the only requirement. If they are changing the party (Zelenski) or are renaming the party (i.e. Sued corporation based on brand name and not corporate name)...C(1)(B) has to be satisified (same transaction or occurance test) AND make sure new party should have known -When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: (A) The law providing the SoL allows relation back (B) Claim or Defense arises out of STO of the original pleading (C) Changing Parties: They need to amend the complaint to add or substitute a new party in circumstances where the claim against that new party is time-barred and the new party either received enough notice to avoid prejudice (due to SoL) or should have known the action would be brought against them (see Zielinski) Must be STO and satisfy Rule 4(m) below -Within the period provided by rule 4(m) for serving summons and complaint When you file the complaint, you must serve within 90 days Normally, if you're served with notice, you get it within 90 days of the filing Look at when they would have gotten notice if they had filed Then ask whether, within this period, the following two things are true Received such notice so no prejudice Should have known that the action would have been brought against them if not for the mistake Zielinski Today Rule 15(c)(1)(C) didn't exist back then Within 90 days pursuant to Rule 4(m) prejudice won't occur if: The party knew or should have known the action should have been brought against them In Zielinski, both above would be true CCI wouldn't be prejudiced because their insurance companies are the same CCI should have known because their insurance company told them - Beck v. Aquaddive: Injury on waterslide. : P injured on waterslide and sued D; D's inspections believed that D was the Manufacturer of the waterslide, but after complaint and answer (where D admits fault) D realizes they were not manufacturer; D realizes this after SoL runs, and wants to amend the answer to deny fault (which would effectively create the SoL problem for P). Holding: D acted in good faith and P did not provide sufficient evidence to show that there is prejudice in the court's decision to grant leave to amend Note: This is a 15(a) case (it is before trial and the defendant is amending) and not a 15(c) case because in a 15(c) case, the party in the plaintiff posture is the party that wants to amend; instead, this is a case where the party in the defendant posture (who admits/denies) wants to amend (to create the statute of limitations problem)Following this suit, π could use a 15(c) relation back of amendments if the real manufacturer had practical notice and should have known the action would be brought against them within the first 120 days of original filing (like Zielinski) **15(a) = essentially means that (1) amender should have a good reason for not getting the pleading right on first time, & (2) allowing the change shouldn't hurt the other side too much** Moore v. Baker (pp. 450): in order to relate back, an amendment must arise from the SAME TRANSACTION AND OCCURRENCE as the original complaint. Facts: π files complaint, suing Δ (surgeon) because of informed consent law; π motions to amend complaint to negligence after statute of limitations runs; district court refuses to grant the amendment to the complaint Holding: upheld district court's refusal to amend the complaint because π's new claim did not arise out of the same conduct, transaction, or occurrence as the claims in the original complaint Note: The original claim asserts that Baker did not adequately inform Moore of alternative treatment options prior to the surgery, but the amended complaint alleged negligence in the conduct of the surgery itself, which involved actions that occurred at different times and involved distinct conduct from the acts alleged in the original complaint. Bonerb v. Richard J. Caron Foundation (pp. 452): in order to relate back, an amendment must arise from the SAME TRANSACTION AND OCCURRENCE as the original complaint. Facts: π sues Δ for negligently maintained basketball court; after statute of limitations runs, π motions to amend complaint to include "counseling malpractice"; trial court grants amendmentHolding: upheld trial court's grant to amend complaint because essentially, the complaint is within the scope of negligence such that the Δ received enough notice to avoid prejudice and should have foreseen the action Note: Moore and Bonerb, unlike Zielinski, must only meet the 15(c)(1)(b) test (same transaction or occurrence) Notes: Compromise for Rule 15 is usually to grant it & issue continuance. If adding new party with 15(c), did it have notice? To amend a PLEADING (R. 15 only applies to pleadings) is to change it after it's been filed. If you want to do that, follow these steps prescribed by Rule 15: 1. First, see if you're still within the time limits set by 15(a)(1) for amending as a matter of course--i.e., you can just do it without the court's permission. If you're not, you have to make a motion for leave to amend, attaching the proposed amended pleading. 2. R. 15(a)(2) is the generic rule, meaning that it applies if you're not in one of the specialized situations described in (b) or (c). The (a)(2) standard creates a strong presumption in favor of allowing the amendment. A court will usually deny it only if it finds some combination of bad faith or inexcusable delay by the party seeking to amend or serious prejudice to the party opposing the amendment. As Beeck illustrates, this is a hard standard to meet if you're opposing the amendment. 3. 15(b) applies in a very specialized situation: You're at trial and a party seeks to introduce evidence that doesn't conform to (deviates from) the relevant pleading. E.g., a plaintiff introduces evidence in support of a legal theory that's not stated in the complaint or a defendant seeks to support an affirmative defense not identified in the answer. If the opposing party doesn't object to this evidence, then the relevant pleading is deemed to have been amended to conform to the new evidence as of that moment. If there is an objection, the party offering the evidence should move to amend the pleading, and the standard for granting that motion is like the one in 15(a)(2)--presumption in favor. Note that the court can continue (suspend) the trial to give the opposing party time to prepare to deal with the unexpected evidence. 4. 15(c) deals with the specific situation of a claimant (typically the plaintiff, but it could be a counterclaimant, etc.) wanting to amend a complaint to assert a claim that would be barred by the statute of limitations. The amendment might (Zielinski hypothetical) or might not (Moore/Bonerb) bring in a new defendant. The claimant needs the amended claim to relate back to the filing of the original complaint--i.e., the new claim will be treated as if it had been filed on that original date, thus avoiding the SOL. The first thing to do is to check the law that provides the statute of limitations--in a diversity case, the state law. If it's more favorable to the amendment than FRCP 15(c), you may--but needn't--use it. (Not anything you need to know, but in some situations NCRCP 15(c) may be more generous, for example.) If that doesn't help you, see if the amended claim arises out of the STO as the complaint. I.e., does the new theory arise out of the same body of facts as the original one? If it doesn't, forget it. If it does, and you're not trying to add or change a defendant, you're done. Thus, this is the rule that controls in Moore and Bonerb. If you are trying to change a party, read on-- 5. If you're changing a party, first calculate date of filing + 90 days. Within that period, the new defendant must have received some practical notice of the original lawsuit such that (1) it won't be prejudiced in defending and (2) it knew or should've known that the wrong party got sued and it should've been the defendant. These two things are closely related: if I know that I should've been sued, then I'll figure out that I might end being sued and start organizing my evidence and will notify my insurer. Again, see Z (under the current rule) as a very easy case: CCI (new, correct D) knew about the claim from the date of the accident and notified its insurer. PPI (original, incorrect D) got the complaint and immediately sent it to the same insurer. Given everything that went on, it is inconceivable that CCI didn't know about the lawsuit as well as the claim, within the 90 day period. CCI can't possibly argue prejudice since its insurer (also PPI's) had been defending the case since day one. So under current R 15c, Z would surely b able to amend, substituting CCI for PPI, and have that new claim relate back to the original filing date.

Personal Jurisdictions: Long-arm statutes - What does a longarm statute do? - What if you have a federal question case in federal court? - How to use long-arm statute with the facts of your case (what if you can't) - 3 categories of long-arm statutes: - Gibbons v. Brown...example of the long-arm statute shutting things down before it gets to the consitutoinal analysis

"First, does the state long arm statute fit these facts and allow service?" Answer is yes/no/close call. Party is a nonresident who allegedly (cause of action) a (state) resident by acts outside of (state). (Party) does/doesn't regularly do (business) in (state). It comes down to...." - Long-arm statute: statute authorizing court to, under certain circumstances, assert jurisdiction and assert process on someone outside the state - If you have a federal question case in federal court, check and see if there is a federal long-arm statute that applies to your case...if so, this is easier to use. If there isn't use the state long-arm statute. Whenever long-arm statute you use, constitutional test for a fed case will be MC with US. Rest of analysis applies to state and diversity cases: - Find a provision of forum statute long-arm statute that fits your facts...if you can't, you cannot file in that state. If long-arm statute does apply, then follow state law concerning mechanics of seving process. Even if long-arm statute doesn't fit...still go onto constitutional analysis for the exam - 3 caterogires of longarm statutes: (1)State long arm statute in effect says "do the constitutional analysis and the long arm statute works;" This is the case in CA and NE (2)State long arm statute claims less reach than it could consitutonally: Florida and NY; long arm statute dones't claim all the reach that the constitution allows (3) State long arm statue allows long arm statute to go beyond constitutional limit - Gibbons v. Brown: Gibbons may or not have minimum contacts with Florida (but this question was never answered). Court concludes that there is only one provision of long arm statute that might apply. FL long arm statute: Plaintiff has to show Defendant is engaged in substantial and not isolated activity in the forum state (in this case FL). Activity in FL=filed a lawsuit in FL....but defendant "IS" engaged in at the time the suit was filed...don't know if its substiaonal and is IS isolated activity (so fails that part too) In this case the long-arm statute KO'd this case at step one; never even got to constitutional test

Clauses that give consent to PJ

(1) Forum Selection Clause: Limits forum to a single location. Court in Carnival said as long as reasonable relationship between forum and dispute. These are usually enforceable unless choice of forum was designed solely to make it impossible for defendant to litigate. Florida was reasonable in FL. (2) Consent to Jurisdiciton clause: "I submit to personal jurisdiction in...." These are enforceable most of the time, as long as specified forum has reasonable relationship to contact and wouldn't make it impossible for plaintiff to litigate. (3) Choice of Law Clause: "Wherever the case is litigated, court will apply law of ___(insert state or country." This clause is independent of forum...judge applies law of chosen jurisdiction. Courts will enforce this if reasonable...not gonna apply Khazistan's law if it has nothing to do with the case. Federal district courts and state courts will see what their home state's choice of law clause says (ex. Florida judge will check Florida's books and see what Florida choice of law rules are and use it to pick appropriate tort law to apply). (4) Arbitration dispute clause: Says can't go to court but rather some private dispute resolution agency (provide private court-like but not an actual court binding resolutoin) Having one of these clauses doesn't apply any of the others; if you want one, you have to explicitly put it in the contract.

Right to Jury Trial

- 7th amendment=right to jury trial (in common law) - If both sides want a jury trial, they get it, and vice versa - If one side ask for one, and its a case where parties are entitled to juries= yes jury - Court of law are usally juries; equity is usally a judge. Steps to take: (1) First, look and see if cause of action was present at 1791 at court of law or court of equity (2) If course of action didn't exsist in law in 1791, courts will try to analogize that to something they did. If like law: money damages Jury If like equity: Injunctions, SP, etc. No Jury Ambiguities decided in favor of jury trial Hybrid Claims Try all law claims first by jury (1) jury is first factfinder Then judge asks whether there was anything in the first claim that relates to the equity claim If evidence findings are also relevant to equity claim, then the court is bound by the findings Class Notes: 7th amendment: Right to jury trial preserved in civil case in federal court if: Suit at common law (historically lawsuits brought to seek damages, as distinguished from equity...typically seek conduct-based remedies like injunctions...if just an injunction, no right to jury trial; if unclear go back to 1791 and see what this case would have been..common law or equity...what the word "preserved" was been interpreted to mean...gets sticky when its something like a union case, environmental, civil rights, or some other case type that didn't exist in 1791...courts generally handle this by analogizing...find some vintage 1791 legal theory thats as close as possible to what you've got now...close calls usually get decided in favor of jury trials; another wrinkle: hybrid case...commonlaw and equity clearly in same case..court invokes Doctorine of Equitable Clean Up..."what I have to avoid is anything i decide in the equity part of the case binding on the jury's part...do the jury part first...jury binds judge, not judge binding jury...that would violate 7th amendment) Involves more than $20 If you want a jury trial, demand it. Do it in your complaint if P or in your answer as D. If either side demands a right to jury trial and qualifies under 7th amendment, it will be granted. If it does have a right to jury trial, if they don't want it, they either have to not assert it or both waive it.

28 US Code 1441: Removal based on diversity of citzenship; 28 US 1446: Procedure for Removal of Civil Actions; 28 US Code 1447: Procedure after removal generally

- Can't file a motion to remove to state courts...file motion to dismiss for lack of subject matter jurisdiction. (a) Any civil action brought in a state court of which federal courts have jurisdiction, may be removed by the defendant(a), to federal court ∙ if π could have filed in federal court, Δ can stand in their shoes and remove (b) (2) For pure diversity cases, a case cannot be removed if one or more D's are citizens of the f.s. (c) If claim that could arise under federal law is joined by state law claims not under federal SMJ and that fail 1367, the whole case can be removed, but state law claims would be remanded to state courts 28 US 1446: Procedure for Removal of Civil Actions (a) D who wants to remove civil action from state court can file in U.S. district court (b) (1) notice of removal (to P) must be filed within 30 days after initial pleading made by P (within 30 days of process being served on most recently served defendant) (2) (A) all Ds who have been joined must consent to the removal of the action (3) If a non-removable case becomes removable, from that time forward, the D has 30 days to remove it (c ) Diversity cases can NOT be removed more than 1 year after the action commences. 28 USC § 1447: PROCEDURE AFTER REMOVAL GENERALLY (c) Motion to remand must be made within 30 days after notice of removal. If at any time before final judgement it appears that the DC lacks SMJ, case shall be remanded to state court (d) An order remanding a case to state court is not reviewable on appeal. Removal itself is appealable, but the remand is not appealable. - Caterpillar: P Lewis is injured in a bulldozer incident and sues CAT (incorp in DE and nerve center in IL) and Whayne (both in KT). Liberty Mutual comes in and brings a "subrogation" (claim almost always brought by insurance company that they made payments to Lewis and are now entitled to come as plantiff and recover from defendant what they paid to Lewis..claims are against CAT and Wayne) - timeline: Lewis filed on June 22nd of 1989 (at some point in here, Lewis settles with Wayne...reaches settlement agreement)...on 6/21/90 Cat removes (this date because they only have one year to move based solely on diversity). Lewis moves for court to remand it and send it back to state court, and on 9/24/90, his remand is denied. On 6/93, Lewis dismisses Wayne from the case offically (even though he had already been "out" in a sense). July of 93: trial and judgement..CAT wins...Lewis wants do over in state court, saying court never had subject matter jurisdiction in the first place...focusing on the Caterpillar removal in 6.21.90...says at that time Wayne was technically still in in a legal sense and this shouldn't have been a case that was removable....didn't become removable before one year deadline...when it was 6/93 that Lewis was dismissed ..too late by then. - Questin for SOCTUS: Does this judgement in favor of CAT count? Judgement stood on grounds of practicality. Bad removal is in hindsight okay because district has gone through trouble of going through the case and it the time it was a proper diversity case. This is an OUTLIER case...valauble for application of rules but still kinda ignores fundamental rule

Jurisdiction Overview: - Jurisdiction defined - Two main types of jurisdiction:

- Jurisdiction= ability of a court to render a judgement that other courts and governments will recognize and enforce - 2 main types of jurisdiction: (1) Subject matter: Which court system (state or federal) can hear this case? (a) State: presumed to have subject matter jurisdiction over all lawsuits expect where there is a statute taking it to federal courts. (b) Federal: limited SM jurisdiction. Cases arising under federal law and diversity (between citizens of different states) cases (2) Personal: 2 types (1) In Rem (against the thing): Attach in-state property at the beginning to get jurisdiction over it; (2) In Personam (against the person): After getting judgement, can execute against property in forum state for 20 years

Peronsal Jurisidction - What is it? - What are the two steps to assert personal jurisdiction? In Rem Jurisidiction Quasi In Rem Jurisdiction

- Personal jurisdiction: authority of a court to assert authority over persons and enter a binding judgement in civil cases. Also called "In Personam" jurisdiction. A court with personal jurisdiction can charge the full indebtedness upon a defendant to the full extent of whatever wrong the plantiff is trying to pursue. - Two main steps to asserting PJ: (1) Determine whether longarm statute confers PJ (2) Constitutional analysis: was due process met? In Rem jurisdiction: Focuses not on the peson of the defendant but on some of the defendant's property located in the foruim state. don't need person to be in-state and the real estate itself satisifies both aspect of minimum contacts rule. Must be a relevant attachment statute; attachment must occur at the outset of the case. Quasi In Rem: Operates on property located within the forum and not directly against the person of individual defendants. Like In Rem, only binds the parties only with reference to their interests in the property upon which jurisdiction is based. Like Personal jurisdiction, can be used to adjudicate personal obligtions. Ex. Maryland P sued nonresident defendant Balk by serving one Harris to garnsih a debt owed by Harris to Balk. The land was the debt, deemed present whereever the debtor could be found. P prevailed and recovered the land. Thereafter, Balk sued Harris .n NC on the debt. Harris argued that he had

Diversity Cases....applying state law in federal courts (kinda)[federal law applies in federal Q cases] Rules of decison act (1652); Rules enabling act (2072). Erie: In a diversity case, state law (common or statutory) provides the rules of decision

- Rule of Decision Act (1652): "The laws of several states, except where the Constitution or treaties of the US or Acts of Congress otherwise require or provide, shall be regarded as the rules of decision in trials at CL in the courts of the US, in cases where they apply." - Rules enabling act (2072): 2072: "The Supreme Court shall have the power to prescribe, by general rule, the forms of process, writs, pleadings, and motions, and the practice and procedures of the DC of the US in civil actions. Such rules shall not abridge, enlarge, or modify any substantive right and shall preserve the right of trial by jury..." -** Must relate to procedure and must not determine substance** In classic choice of law situation (i.e. Piper), you have a forum state and judge looks for factual issues that involve or implicate states (or countries). Question for judge: "should I apply my own law or law of other state?" Rule is go to forum state choice of law rules...they will tell what laws to use; this should also be the case in diveristiy cases...state law case that happens to be tried in federal court. - Note: No federal law problem in federal question cases...because federal law applies. Federal rules of civil procedure apply in all cases, including federal diversity....state law appplying means substantive law (torts, contracts, etc). - Erie is not about which law applies but whether state or federal on a particular point ...in federal diversity cases, despite being governed by substantive law will sometimes apply federal or state law, depending on the issue. This all started with the Erie case. Key statute: "laws of several states expect where congress or acts of congress say otherwise shall be regarded as rules of decision in civil action in the courts of the US, in cases where they apply (aka diveristy cases) ERIE: - Rule: Federal courts are to respect the substantive law of the states whether made by legislatures or courts. - Erie was in federal court because it was a diversity case. Before Erie, was a thing called federal common law (federal judges created their own body of judge-made law when no statute controlled...applied in cases like this...diversity case with no state statutory law that governed...created their own commonlaw and applied it - State law said Wanton negligence only...easier for the company. Federal common law said orindary neglince...not favorable to company. They assumed PA law would apply (today judge would say what do my choice of law rules say) - Reinterpreteed 1652: "laws of several states" interpreted to mean all states...statute and commonlaw...does away with federal commonlaw. - MAIN POINT: In a diversity case, state law, whether statutory or commonlaw, has to provide the rules of decison

Venue of district courts: "If you make it into this state as a forum, where can you file the lawsuit within this state?" - What does venue analysis do and when does it happen in the process? - Rules that govern which venue, 1391. - Thompson v. Greyhound (when the venue is wrong) - 1406: Claim is disitrict is wrong - 1404: Another district/venue would be better (use Gilbert Factors) - Piper v. Reyno: Is more favorable law a convience factor? - FNC - Venue and residency

- When filing a lawsuit, you wanna do jurisdiction analysis first to determine the state then choose a district using venue rules Unlike PJ, venue flows solely from statutory sources -Unlike personal jurisdiction, venue locates litigation not just in a state but a particular federal juridical district within that state -Within the state that we've chosen, venue tells us which district or distircts you can bring the case. - Venue rules apply to any federal case ; If federal question with own venue statute, use that statute. If not, use 1391 - 28 code 1391 tells us venue rules; Civil action may be brought in: (1) judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located (2) district in which a substantial portion of the events giving rise to the claim occured or substantial portion of the property that is the subject of the action is situated (3) If no district in which an action can be brought as otherwise provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action (Look at all the districts and pick the district which any of the defendant has minimum contacts) - 1406: statute that applies when defendant says venue or wrong. Case can be moved or dismissed for improper venue - Thompson v. Greyhound: Greyhound moved to have a case dismissed, arguing the southern district of Alabama was improper venue. 1391 1 and 2 don't work...but Southern miss district would satisfy 2...so moved it there - 1404: venue is correct and defendant isn't saying venue is wrong...but another district would be better...from correct venue to another correct, reportedly better venue. This is evaulated by convience with "Gilbert Factors." - Gilbert Factors: Private interests 1. Access to evidence and witnesses (willing and unwilling) 2. Expense and difficulty of trial Public factors 1. Local interest in controversy 2. Court congestion 3. Problem with applying foreign law (state or country) 4. Conflict of law problems 5. Administrative difficulties Burden on citizens - Chioce of law: Transferee, wehn considering choice of la,w is suppose to make chocie of la wthat transforer judge would have applied. I.e. Piper - FNC (Forum non-convience): Similar to 1404. A commonlaw doctorine..between systems...rather than a transfer...this contemplates dismissal (never transfer) in contemplation that plaintiff refiles in another system. Venue is good orignallly but better in another system. Most of these cases are those that are asked to be dismissed from US Federal system with the expectation that they will be filed in another country; another possibility is that its dismissed from Federal system with expectation of being filed in some state. When evaluating whether other system is better, Gilbert factors govern here too. (vs 1404....move within federal system or kick it out). Courts can also impose conditions that can bring the case back in "If you're planning a scheme where you let the Scottish statute of limitations run out, we're brining you back!!" - Piper v. Reyno: If anticipated new forum is "rule of law" country with ordelerly independent judicial system and provides any remedy in a case like this...its enough, more or less favorable law dosn't make a difference. If the Gilbert factors point to moving it to a new venue, less favorable law won't stop it from being move - Residency 1. Natural persons including lawful aliens are deemed to reside in the judicial district where they are domiciled 2. Corporations are deemed to reside in a district where they have PJ Treat district like state and do MC analysis (purp avail & fairness) If corporation is P, use district where principle place of business is 3. Foreign Defendants: no venue rights and can be sued in any court with US Jurisdiction

Subject matter jurisdiction analysis flow chart:

1. Did plantiff file claim in state or federal court? - Federal: Diversity (1332) or Federal Q? (1331)...if neither can't sue in federal court - State: Does defendant want to remove if to federal court? - Yes...1441, 1446, 1447...diversity or federal question? If neither, can't sue in federal court. IF it is, are all claims under federal SMJ? If yes, admissible in fedeal court. If no, common nucleus of operative facts (1367)? If yes, is it a fedeal question issue? Yes...admissible in federal court.. If no to federal question issue...see if rules for excluding diversity cases apply...if they dont, its admissible in federal court. If they do, only state claim is not admissible in federal court. If no to common nucleus of operative facts, only state claim not admissible in federal court - No...sue in state court.

Burden: Pleading, Production, Persuasion

3 related burdens are operative in every case: 1. Pleading: - P has the burden of pleading the elements of the claim and D has the burden of pleading the affirmtive defenses 2. Production (of evidence): - P was burden of producing elements to support elements of their claim - D has burden of producing evidence to support their affirmative defenses 3. Persuation: - In civil cases, burden is "more likely than not." (51%) - Burdened party is party who loses if the jury comes back 50-50 - If either side just slept and nothing was presented, D wins Jones v. Bock - Prisoner claims constituional rights violated when forced to work under conditions injurious to health. Question is, where the administrative remedies exhausted? If not, his federal lawsuit is barred. Prison claims rule 8 affirmative defense (maybe we did or didn't abuse prisoner, but administrative remedies is an out.). Court rules administrative remedies not being exhausted is, in fact, an affirmative defense. If an affirmative defense, buren is on defendat; element of claim, burden on P. Burden of showing administrative remedies were exhasuted was a burden for the prison. Also have burden of production and burden to plead ("P3"). Rule 11 says you can't make stuff up. For party to put in a pleading, they must investigate and have evidence to support whether or not they exhausted administrative remedies; in this case, D loses and it assumes P did exhaust administrative remedies. If jury can't decide either way and isn't persuaded...then burdened party loses. If nobody pleads, nobody produces and nobody persuades...unburdend party wins.

Constitutional Analysis ("If the state statute does fit, would it be unconstitutional to use it against the party?") - Neff v. Pennoyer - International Shoe - 2 parts to minimum contacts rule:

Absent consent, waiver, or pesonal service in the forum, minimum contacts between the forum and the defendant are necessary to make P's choice of forum constitional, per the 14th amendment. c - Neff v. Pennoyer: Due process is satisfied if defendant is served while physically present in forum state (still good)...gives you jurisdiction over anything you serve them with; Dues process isn't satisfied if defendant isn't physically present in forum state (no longer good - International Shoe v. Washington: To satisfy due process, defendant must have minimum contacts in the forum state. (A)Minimum contacts=satisfies notions of "fairplay and substantial justice." (b) Salesman that solicited business for a company that was HQ'd and incorporated and two other states that weren't the forum state was enough to satisfy minimum contact rule; no manufacturing plant or brick and mortar stores; just salespeople with limited powers working directly under superior in Missouri - 2 parts to minimum contacts (both required): (1) Fairness to defendant contacts: anything that shows its not fundamentally unfair to make defendant defend in forum state...sales, employees, real estate, etc. Consider wealth and resources and whether or not its fair to make them defend there. Consider wealth and resources of plantiff and whether or not its fair to make them defenend there. Manifest state interest (liscening, protecting citizens, public safety) (2) State sovereignty contacts (personal availment): those contacts that reflect defendant's intent to take advantage of the forum..advertsiing, soliciting, knowingly sending products into the forum, having distributor in the forum, or, in case of individual, driving into the forum. Forseeability (ex. Selling polutry equipment...NH was a big poltry state....foreseeable that there product might end up there and get into litigation)

Diversity based on amount in controversy being over 75k

Amount in controversey for diversity=over 75,000...75,000.01 Legal certainty rule: amount in controversy is determined from allegations of complaint; as general rule, if plaintiff alledges ability to recover over 75,000...defendant has to say with legal certainty that, based on the applicable law, they cannot recover 75,000 even if all the facts are true...otherwise P's claim is taken at face value. Ex. Alleges 40K in actual damages + 40,000 in punitive damages...but law that applies to case doesn't allow for punitive damages Law of aggregation: Relevant when it comes to diversity claims (state law claims tha happen to be in federal court) plaintiff alleges multiple claims or plaintiffs join up to alledge multiple claims. This law tells us that when plaintiffs can add up claims to be over 75K. If one plaintiff sues one defendant with multiple claims...3 different state law claims each for over 30K....this works. Separate and distinct claims (uallly not expect for over joint property): If two plaintiffs, each having claims over single defendant, P1 (40k) vs defendant. Plaintiff 2 (40 k) vs same defendant....neither claim by either plaintiff is over 75K...cant add them up to get over 75K. Separate and distinct rules...cant add up there claims if they're separate and distinct (almost all plans are separate and distinct). Exception...if join owners to property...ex, Two spouses join owners to 100 K house...house is burned down by negligent electric repairs...a rare claim thats not separate and distinct...each can claim the whole 100K Claim not separate and distinct... husband and wife in same car crash. Its this join property catergory that usally falls under seperate and distinct

Diversity Jurisdiction: - article 3 meaning of diversity - 1332 diversity - citzenship for diversity purposes

Article 3 authorizes federal questions based on diversity of citizenship between the parties. Referred to as minimal diversity. Congress took this up and enacted it in 1332. Like 1331, this meaning of diversity is narrower than whats in teh constitution. Called "complete diversity"....came from strawbridge v. Curtis - Courts decide cases on these topics so as to narrow their jurisdiction. Diversity jurisdiciton has been narrowed over the years - 1332 catergories of diversity: (1) Citizens of different states (2) Citizen of state and citizen of foreign country (3) Between citizens of different states and in which subjects of a foreign state are additonal parties (4) Foreign state as plantiff and citizen of a state or different state, etc - Citzenship: (A) Corporate: where incorporated and where nerve center's at (B) Natural person: non-us citizen (citizen of another country, alien whose permenant residence is in the US). Citizen of state=us citizen...state of domicile..two parts: (1) Present residence (2) Intent to remain indefinetely (dont have any immediate plans to go anywhere else...not necessairly permenantly)for someone like Alex who's last place where he was residence and intended to remain indefinitely was Texas...work back in person's biography and find the most recent place where these two coincided. Everyone has one domicile - Examples: Plaintiff is citizen of NC...sues citizen of Va....defendant 2 is a citizen of SC; Diversity? Yes. What if another defendant is citizen of WV? Yes. Add a defendant who is citizen of Poland? Yes. Add a plaintiff who is citizen of WV? Now you don't have diversity jurisdiction. What if the Polish citizen was a permanent resident alien of NC? Now no longer a diversity case under 1332. What if polish citizen vs french citizen? No diversity. What if polish citizen permanent resident of NC vs citizen of France...no diversity (don't use permanent resident to create more diversity...only destory it) - Redner: If he's a citizen of Cali, a pretty clear diversity case. State of domicile: present residence is France and weakly, indeciviely claims he doesn't intend to remain indefinitely. If it is his domicile, he's in the category of US citizen who's domicile is abroad. Doesn't provide court that he has permemant intend in France. In Cali, gave evidence of permanent intent of law practice there, drivers license there, law license there, visits 4 times per year, was raised there. Court says you havent given enough proof and by default we're gonna assumie your intent to remain is in France. Subject standard....evidence for Cali looks pretty strong but didn't provide enough evidence according to the court. Hypothetically, if they caught him in NY and served him they'd have him.

Claim Preclusion

Bars the claim from being relitigated. Bars not only claims previously litigated but some claims closely related to litigated claim. Difficult problem in most preclusion cases lies in defining HOW closely related the claims are. Claim preclusion will almost certainly be the party that lost the first case trying to preclude the winner from winning more damages. - Also called "Res Judicata" or "Estoppel by judgement" - Usally used by defendant Claim can be precluded if its: 1. The same claim 2. by the same parties that was (a) Asserted or (b) Could have been asserted 3. Final judgement on the merits Article 4, Section 1: Full faith and credit caluse - "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the congress may be general laws prescribe the manner in which such acts, records, and proceedings shall shall be proved, and the effect thereof." - 28 USC section 1738, Full faith and credit statute: Records and judicial proceedings of any state court shall be proved or admitted in other courts within the US and shall have the same full faith and credit in every court within the US. How do federal courts determine contents of state law? 1. First look at state statutes 2. Absent that, look at state supreme court 3. If no decision by SC, ask how they would have decided this? - Look at apellate court decision and ask would they agree or disagree with that? Frier v. City of Vandalia (pp. 717): federal courts must respect the judgments of state courts in terms of preclusion. Frier's claim is precluded because Illinois has the broad view of "could've asserted, and Frier could have asserted his DP claim in the first state law case. Facts: Case 2 is a due process claim (1983 civil rights/service of process claim) in federal court; Case 1 is a replevin case (getting property back that was wrongfully taken) in state court; Δ claims these cases involve the "same claim or cause of action" Holding: the claim should be precluded because the full faith and credit clause/statute holds that federal courts must give preclusive effect to past court judgments - Note: Always look to the first court's jurisdictional statute to determine preclusion Process for finding whether a federal question claim can be precluded. -Federal statute Process for finding whether a diversity case claim can be precluded: Go to the federal preclusion law, which tells you to go to the state preclusion law Some state preclusion laws have a broad view, and others have a narrow view The broad view: any claim asserted on the same core of facts arising from the ST&O is precluded (more strict—you will essentially be barred from litigating another claim arising from the ST&O) The narrow view: any claim that is proved by the same elements/facts is precluded (less strict—in Frier, preclusion would not have been upheld) RULE 13(a) is a FEDERAL PRECLUSORY rule because state that you MUST assert compulsory counterclaims (CNOOF) in pleading o "Use it or lose it" o Motion for summary judgement for preclusion WHOSE LAW GOVERNS? ∙ "A subsequent court gives the same preclusive effect to an earlier judgement as the jurisdiction that rendered it would." ∙ 1st STATE 🡪 2nd FEDERAL o Use preclusion law of the state law used in #1 ▪ Does that state have "could have" standard like Rule 13? ∙ 1st FEDERAL 🡪 2nd STATE o "If the judgement is a federal diversity judgment, the preclusion law of the original forum state controls." o If 1st case = FQ then federal preclusion law applies o If 1st case was diversity, then preclusion law of that state that provided the law of 1st case should be adopted Gargallo v. Merrill Lynch, Pierce, Fenner & Smith (pp. 745): always look to the first court's claim preclusion statute to determine if the claim can actually be precluded given the context Facts: Case 2: Gargallo sues Merrill Lynch regarding federal securities law in federal Court. Case 1: Merrill Lynch sues Gargallo for $17k in unpaid debt in OH state court; Gargallo counterclaims for fraud and misrepresentation in violation of federal securities law (which OH has no jurisdiction over)—the counterclaim was dismissed for failure to follow the court's discovery ordersMerrill Lynch motions for claim preclusionHolding: court decides that there was a final judgment rendered upon the merits even though OH had no jurisdiction over the federal counterclaim; when the court looks to the Ohio state claim preclusion statute, it finds that Ohio does not give preclusion to judgments that the court had no power to render—so it cannot be precluded in this case Can't give preclusive effect here, asked Ohio, & they said they don't becasuee of lack of SMJ. They could have said yes, but they didn't

Limits to serving process in person

Burnham (nothing in opinion has majority..so nothing in text has force of law; judgement is unanimous..only way to account for judgement is to say judgement form Neff v. Pennoyeris good law..still better to cite this than Pennoyer because this is more recent): If you told someone in SC to come to NC because they won the lottery...then hit them with a "serving"...not valid because tricked them into coming. If defendant is voluntairingly in state and is presented with a serving (summons) its valid; not valid if they're tricked into the state and served process If defendant is subpoenaed into NC to testify, can't be validly served while here to testify Dismissin

Diversity Cases....applying state law in federal courts (kinda)[federal law applies in federal Q cases] - Guranty Trust: -Byrd v. Blue Ridge: State law applies the rule of decision, and the substantive tort law is the rule of decision - Hanna v. Plummer:

GURANTY - Outcome determinative test: If choice between state or federal determines the outcome of the case, generally choose state law - Guranty: If substantive, apply state law. If procedural, apply federal law. Traditonal statute of limitations in state law and doctorine of laches in federal. If choice clearly determines the outcome of the case in one direction, its substantive. Statute of limitations would cause plantiff to lose, so its substantive...go with state. BYRD - When case is not outcome determinative, balancing test should be applied; analyze federal vs state interest in purpose of the law -Byrd: In deciding preliminary issue of whther or not hurt worker was a salaried employee or independent contractor (salaried employees couldn't sue under a SC act), SC law said let jury decide if they're an emplyoee, and federal law said let judge decide. Not outcome determineative...so Guranty doesn't help...use balancing approach (Byrd Balancing Test). State rule came from a SC Supreme Court case...court said nothing about the reason for this rule....so nothing on state side saying that this is important. On federal side, have the 7th amendment of the Constituion....which says trial by jury is preserved (doesn't command it...kinda lurking in the background saying send everything to jury). Given that, they chose the federal rule. Balance tipped in favor of the Feds in absence of any articulation for what state is. What would make it a closer case: industrial development in SC just beginning...if SC SC said purpose of this rule is this poor state needs development or if that reason was articulated in the act itself. If you didn;t have any of those things, look at a committee report to see if state was acting on some state interest in enacting it. - Unless you have a situtation where a Hanna test is used....not a federal rule...use the Byrd balancing test. HANNA - If conflict between state rule of procedure and federal rule of procedure, federal rule wins if it satisfies rule enabling act. - Hanna Test: Is there an apparent conflict of law between a FRCP and state rule (is rule "on point"?). If no, apply state rule. If yes, then test federal rule under rules enabling act. Rules enabling act test: Is it within the power of congress? - Hanna: Conflict in a federal diversity case...someone suing someone else because of an automobile accident. D is dead, and a suit is brought against their estate. Conflict is between two different rules that relate to the mechanics of serving process. MA says serve executor within one year of being appointed...has statute of limitations-like componet to it (MA probate code). Federal Rules of civil procedure say to leave at residence of D with a competent adult. P complies with the rules of civil procedure but not the MA rule. Wasn't outcome determinative when P filed...could have done this and didn't (kinda malpractice). *In cases where federal competitor is federal rule of civil procedure with state law, forget rules of decision act. Forget rules of decision act if and only if competitor is federal rule of civil procedure. Rules and enabling act says federal rules of civil procedure must regulate practice and procedure and cannot encroach on substantive law** - Hanna Court: When conflicting with rule of civil procedure, evaluate it according to the rules enabling act...ask these two questions. Garuntee said statute of limitations if substantive. State law had serving of limitations and the manner of serving process (one substantive and other not). Court vieiwed state law including a statute of limitations as incidental and the real matter is serving process...which is procedural and not substantive

Policy Behind Erie (let state law provide the rule of decision in diversity cases)

Erie policies: Discourage forum shopping: Not geographic forum shopping like with PJ...doctrine agnostic on the system you're in. Type of forum shopping Erie doctorine is directed at is systematic...doesn't want you forum shopping between state and federal systems. Prevent inequitable administration of laws: ability to get significantly different substantive law applied to your case, dependingon whether you're diversity eligible or not. (before Erie doctrine, someone could get different body of substantive law applied to this case if they were diversity than someone who wasn't diversity....we don't want these people to have significantly different law applied to their case (equal protection) Anytime you have a close call to make, ask if you allow different federal law applied to this case than what it would be in state court....does this encourage forum shopping? If you allowed federal courts to make their own common law, this would of course encourage forum shopping.

How do federal courts decide what state law is?

If stature thats on point...just read it and follow it. If its court-made commonlaw, if state supreme court has rule don this point of law, fedral judge must follow it. If they have not ruled on it, job of federal judge is to predict how they would rule...looks at other sources (lower court decision, secondary sources, etc) and predicts that thats what state Supreme court would do. Some states have state procedures under heading of certification of questions In federal diversity case (Erie always arises in this context): See that federal and state law say different things on the same issue(ex. Federal court law says ordnarily neglignece and state says Wanton neglignce)....this is Erieland! Not a PJ question...this is an Erie question. Next, ask is federal law a federal rule of civil procedure? If no, then you go to the Byrd balancing test: identify if you can state and federal policies and interest behind respective laws, then balance and decide which is more important. As you balance, if you allow federal court to have different rule than state court, ask yourself if it promotes forum shopping (if it gives diversity cases a better deal). If yes and it is a federal rule, on Hanna track....is it a real unavoidable conflict...is there some way to avoid it? It if its not..it can be avoided...then apply federal law in federal court (allow court to follow their own rule)...if confict is unavoidable, then get into substatnce of Hanna analysis...first, test the federal rule under rules enabling act (REA)..is it procedural? Does it encroach on state substantive interest? Right answer for first part if yes and no for second part...two sides of same coin; most of the time it passes this two part test.... If passes, Federal rule of civil procedure is valid...apply FRCP. If you pass both of these test, apply federal rule. If instead you fear failure on either of these test, federal court has initally said cant avoid conflict and have to pick one....dont wanna strike down FRCP...so go back and say too hasty in saying cannt find a way to avoid conflict and we actually can find a way to avoid...federal law applies generally and is valid, but because we've now found a way to say they apply to slightly different things we allow application of state law (Going back and saying this allows courts to not strike down federal rule...come up with some way that state law applies that way; unless its a cold day in Hell, federal rule will be validated; - **To get an A Answer**: Know how to pick out that they're slightly different

General vs Specific Personal Jurisdiction

Minimum contacts rule applies to specific jurisdiction cases Specific jurisdiction: claim arises out of, is caused by, or relates to D's four state contacts General jurisdiction: Claim is unrelated to contacts that support PJ (L.L. Bean) Old standard for GJ: Does defendant have "continuous and systematic" contacts with forum state? Continuous and systematic were more than minimum contacts but could often be shown for large corps who had them in every state Daimler v. Bauman: "f cube" case....assumed general jurisdiction. Daimler said continuous and systematic no longer the test...instead must be "at home" in forum state At home=state of incorporation and principal place of business ("nerve center") for corporation; place of domicile for natural person. Bristol Myer Squib: Montana v. Ford: Specific jurisdiction can be found through personal availment with contacts of products of similar kind/catergory in forum state

Constitutional Requirement of Notice (little due process) while serving process

Mullane v. Central Hanover Bank: Beneficiaries trust being pooled into one big trust fund. Bank put notice in newspaper and basically said "Sue now over the breach of fiduciary duties or forever hold your peace." Sufficent minimum contact for each beneficiary would be their relationship with NY bank as trustee...due process satisfied. Case raises a different kind of due process question (little dp..connection between defendant and forum, big DP is personal availement and fairness contacts, little dp is after big DP is satiaifed..new sub question ask about the quality and the timing of the notice). Mulane is one of a couple of lawyers who appears in court on behalf of beneficaires...he's a gauridan of these beneficaires. He says big DP of minmium contacts is satiaified, but he believes notice provided was inadaquete...they only got newspaper notice. -Mulane rule ("little due process"): Must be (1) adequate notice and (2) opportunity to be heard in other contexts (1)Adequate notice (about content of notice): notice must reasonably tell affected parties what this is about (must tell a reasonable person what's going on); "This is whats happening in this lawsuit...show up or your right's are cut off". The court explained how notice should be given to three different classes of people: The missing and unknown people: regular notice by newspaper is good for them The missing and unknown people that can be found with some digging: the court "consider it unreasonable for the state to dispense with more certain notice to those beneficiaries whose interests are either conjectural or future or, they could be discovered upon investigation." Try to find them by a reasonable effort and if found mail it to them, if you can't find them just publish it People with whom the address is known: There should be a "serious effort to inform them personally of the accounting, at least by ordinary mail." (2) Opportunity to be heard (timing): No hard and fast rule; in some emeergncy circimsunatces, just tomorrow might be good enough Holding: Today a bank would have to make a reasonable effort (like internet search) to find someone, and then after can't, can serve notice by publication. If you can find them, have to at least mail them.

12b6: "failure to state a claim upon which relief may be granted. (Motion to dismiss must happen within 21 days of summons and complaint, either with answer or alone; otherwise, D waives motion to dismiss.

Overview - Complaint: P says, "this happend, I want this, give me judgement." - Answer: D admits, denites, or has affirmative defense. Assert defense, counterclaim, or rule 12(b) motion to dismiss. - Reply: In federal cases, plantiff has to reply to defendant's answer only if a counterclaim is raised. If defendant counterclaimis raised improperly, then defendant does not have to reply. - 12b6=failure to state a claim on which relief may be granted - Complaint can fail to state a claim in one or two ways: (1) Factually inadaquete (Iqbal): If found to be factually defiecent, can be dismissed without predjudice (can be refiled). Most of the time its because there is not enough or its not written correctly by lawyer. "Should have said more." (2) Legally deficent (Haddle): Can't fix this. In this case, assume factual allegations of complaint are true and draw all reasonable inferences in favor of the plantiff. (a) Haddle: Was gonna testify about wrongdoing by homehealth company and boss fired him. Alledged his firing violated a reconstruction era civil rights act....witness intimidation statue. Motion to dismiss was granted. Court says, as a legal requirement, he has to alledge damage to property....job is generally property...but under Georgia law, at will employment is not an employment interest. Question: Can P's lawyers amend the complaint to fix the problem? Doesn't seem like a good way to. Law defects like this are hard to fix...pretty hopeless to amend the complaint and fix the problem...if you didn't have enough facts, might could put more and fix it...only way out of this is to change the law to make the complaint effective....went to Supreme court and thats what they did. "Holding: verdict for Δ; π failed to state claim upon which relief can be granted because π was an at-will employee and would not have been able to assert a claim for relief" (b) Trombley:....an antitrust case alledging D engaged in a conspiracy in constraint of trade (competitors getting together and fixing prices). The complaint said, in the given industry, prices all go up and down in lockstep...evidence of conspiracy. Issue is, "concious parallelism" allows competirors to watch each other's prices and go up or down accordingly...just can't talk to each other and say this is what we're gonna do. Trombley said pleading the outcome and conferring the conspiracy isn't enough...have to bring facts about the conspiracy...plead the conspriacy not infer it.....but how is a P without power of discovery to do this? Really can't bring an antitrust case unless there is a "fly on the wall" witness who is willing to testify. Hard to have direct evidence before discovery. - Iqbal: -Extends the plausibility standard to all kinds of cases; PRESUMPTION OF TRUTH only applies to FACTS, and thus only facts can be used to state a PLAUSIBLE claim; legal conclusions are not entitled to the presumption of trust and do not satisfy the plausibility standard. ∙- Π must allege facts (not legal conclusions) which, when assumed to be true, support every element of π's claim - Follows Trombley. After 911, round up of terrorist suspects in the US. Many like Iqbal were charged with a crime, and, if they were convicted, they were deported. Fact pattern showed that, overwhelmingly, the type of person rounded up where Muslims of Middle Eastern descent. Complaint drew inference that its an act of discriminatory stereotyping against Middle Eastern muslims that deprives them of life, liberty, and property. Counterargument is that these type of terrorist come from this community. 12b6 motion says assume all facts are true and draw reasonable inference in favor of complaitant...ask if there is no reasonable way that plantiff can win. Complaint fails because complaint has to plausibly state a legally reconzied claim. (a) Plausibility: seperate facts from legal conclusions. Pattern of the roundup: facts. Statistics: facts. Can draw factual inferneces from that....BUT court says next step of "therefore we can conclude there is a conspiracy" goes too far. THEN only plausible complaint survives; court says, when evaluating a complaint for plausibility, courts don't judge credibility of allegations. Throw out conclusions and then take whats left and assume veracity of surviving facts. Courts seems trouble that facts imply two equally likely explanations (discrimination vs. benign). Court says Trombley applied to all cases and not just antitrust. Court comes up with new process and new standard: plausibility. Complaint must plausibly state a legally reconized claim....process is seperate facts from conclusion, then only plausible complaint survives (do facts plausibly support everything that P has to show in alledging this complaint? Don't consider credibility. - What's missing? Facts about conspiracy, plenty of facts about outcome and patterns of law enforcement, no facts about inners of conspiracy...only offers a conclusion; found in favor of defendant. - These types of lawsuits against law enforcement are difficult to prove...and its set up that way. Court says this applies everywhere. A bunch of federal rules of civil procedure are struck down...in patent cases, a bunch of defendants have to go through patend cases in minute detail and explain exactly how the defendant is duplicating every element of patented device. Court says have to have more detail than you use to have, but you don't have to have your whole case laid out in the complaint. Today, post Iqbal, lawyers have to go through what elements they have to win...alledge facts which, if believed, prove the elements; have to lay out a lot more factual detail than you would pre-Iqbal...avoid reliance on obvious legal conclusions

Summary Judgement

Presents opportunity to party-usally D-to say to judge this case doesnt need to be tried....so one sided that you your honor can decide it now, entering judgement early First opportunity for D to challenge P's case and not have it go to trial: 12b6; if allowed, there is a judgement for dismissal. If denied, next step is for D to answer...admit, deny, raise affirmative defense. Then discovery. Common kind of 12b6 motion: fatal legal flaw in complaint....assume all facts as alledged, P couldnt possibly win because you don't have an adequate legal theory. Two types of summary judgement motions: (1) Law-based (2) Fact-based Fact based: 12b6....not enough facts that if assumed to be true would support every element of its complaint; 12b6 is assuming facts. Fact-based summary judgement...we have all the facts through discovery and we can project what the trial outcome would be....looking at the facts, P can't prove every element of its claim. Not assuming facts...take facts out of discovery and assume what will happen at trial A motion entered by the court before trial on the motion of either party arguing that there is no factual dispute regarding the matter for which summary judgement is sought and thus a conituation of the action of the trial is not warranted. - Motion can be made at any time by either side, but its most commonly made after discovery and before trial. - Summary judgement cases involve the "forecast" of what will happen at trial. Party looks at admissible evidence and the complaint, and can forecast what the evidence will be at trial and tells the judge that on the basis of the evidence and what is claimed, all the evidence will be in the motioning party's favor. - It is more difficult for P to prove summary judgement because they will have to prove that every reasonable juror would rule in their favor. - Prima Facie Case: "I have put on enough evidence for jury to rule yes, if the facts are believed" - Rule 12 only allows judge to look at complaint, but if he looks at affidavits or anything outside of complaint, rule 56 automatically steps up. Rule 56: Summary Judgement (a) Party can move for summary judgement on a particular claim or for the whole claim if there is no genuine dispute to any material fact and movant is entiled to judgement as a matter of law. You are supporting the assertion by showing evidence. (b) Time to file motion: *** Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. (c) Procedures - Supporting factual positions: party that is asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) Must support assertion by citing to particular materials in the record: "including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials" OR (b) Citing what ought to be there and is not - Summary judgements are typically written and suported by affidavits (signed written statements) whcih must contain admissible evidence/material (d) Continuance (good compromise) Note: There cannot be an issue of material fact in the case to get summary judgement Note: Party opposing motion for summary judgement bears the burden of responding only after the moving party has met the burden of coming forward with proof of the abscence of any genuine issues of material fact Note: Need admissible evidence, no hearsay. If it passes (1) Form and (2) Content=admissible Celotex Corp v. Catrett (pp. 583): normalized SUMMARY JUDGMENT; courts should think seriously about summary judgment all the time and use it as a normal remedy in a significant number of cases—shifted the burden during the summary of judgment proceedings from the moving party to the nonmoving party. Same burden as trial now (wasn't like that before) Facts: π sued Δ (asbestos manufacturer) due to husband's death from exposure; Δ claims that the π will not be able to produce evidence to support at least one element of π's claim because to win a toxic tort, the π must produce evidence that the toxic exposure was the proximate cause of deathHolding: Δ proves that π does not have evidence to meet burden of production of evidence; summary judgment motion upheld Note: if you are the moving party/unburdened trial party (Δ) seeking summary judgment against π and are charged with proving a "negative," you used to have to prove affirmative defenses (Adickes), but NOW you have a new way of discharging the burden of proving the negative—you can say we have gone through the discovery record and we find in that evidence nothing that could discharge the π's burden at trial "show your cards". Note: the moving party (Δ) is the party that is unburdened at trial on that issue (the π has the burden of proof—pleading, production, persuasion) with the exception of a rare situation where the π moves for summary judgment to strike out an affirmative defense made by Δ - Class notes: Normalizes SJ in the federal courts....says its just part of civil procedure and can be granted when met...read rule and apply when appropriate. Shifted balance of litigation in favor of defendants Its all about burden and how parties discharge burden. At trial and throughout case, P bears P3 burden (plead, producing evidence, persuasion of the jury)...nothing in Celetex changes this...changes the burden within the summary judgement proceeding. At trial, D bears P3 burden with respects to affirmative defenses. SJ burden: Movant bears burden of proving that there is no genuine issue of material fact....Celetex didnt change this. Celextec didnt change question of who bears burden and what is it...but rather how does moving party discharge that burden...how do they persuade court and make an adaquete showing that there is no issue of material fact? Law prior to Celetex was that, to discharge this burden, movant had to make an affirmative showing of a negative....had to point to admissible aspects of the record (We move for summary judgement...issue of material fact on at least one element of P's claim....these pages show that P can't meet at leat one element at trial...hard to show a negative; P never had to show any evidence...D has to do all that). New standard after Celetex: Defendant points to whole pile of discovery material and says there's nothing here to show___; burden of production has now shifted to P non-miving party...court now says..okay, plaintiff...point to some pages that show you have an issue of fact that you were____. Summary: P3 for plaintiff and defendant doesn't change. Burden is also still on moving party within summary judgement motin. Defendant doesn't have to point to specific pages...jsut say nothing record supports this claim....shifts burden to P to find something in the record that does support it. Note: NC state courts still take things the old school way. Celetex: Cletex is unburdened party at trial; summary judgement proceeding: Cartret is burdend party at trial; Celextex is moving party and unburdned party on all elements of the claim; Clexex doesn't dispute exposure to asbestos...no issue of fact there, no issue of fact about injury, and even no issue of fact of whether or not asbestos caused his injury...question is, was he exposed to our asbestos? Celetex is unuburned party at trial as whole, but within summary judgement they are the burened party (means they have to persuade court that there is no issue of material fact on this issue). To carry their burden in summary judgement, says there is an absence of proof rather than providing...basically says we have nothing and sits down...no traditional showing of affidavits, etc. Absent the Celextex doctoirne, party like Cletex could never get summary judgement. By saying "we have nothing," shifted burden to Catrett. Catrett has (1) Deposition of decendet, Caterett (a sworn form...so far so good as to form since done under oath...might have an admissibility issue with the fact that he didnt have good personal knowledge) (2) Letter from employer (defetive to form...probably content as well) (3) Letter form insurance company(defetive to form...probably content as well). 2 + 3 dont suffice to defeat Celetex's burden shifting statement.......more to look u Bottom line: Summary judgement is now normalized and presents an almost equal opportunity to P's and D's. Tolan v. Cotton Cop followed Tolan home. Accidentally enters on his computer that this is a stolen car. Gets out, draws gun....parents come out. Cotton shoots Tolan in lungs. Summary judgement standard in this case: law is officer can use deadly force if suspect presents an objetive threat to their safety. Were disputed issues of fact, like whether cop slammed mom against garage door. If court has to weigh evidence to get to summary judgement...its by defintion inapprpriate. Judges compare something vs nothing...weighing things is the job of a jury. Inferences are not appropriate for summary judgement. Adickes v. Kress: previous rule held that a moving party had to produce affirmative evidence to show the critical negative (that the π lacked evidence on one element of its claim) If you answer the claim as AFFIRMATIVE DEFENSE in pleading, then you have to affirmatively there is no issue of fact. Can't use Celotex in this situation Bias v. Advantage International, Inc. (pp. 593): to oppose summary judgment, there must be more than a scintilla of evidence—π must create a reasonable doubt that the jury will side with the Δ Facts: π sues Δ (lawyer) because Δ did not get π's son (Bias—basketball player) life insurance; Δ claims that to get life insurance, he would have had to commit fraud by lying about Bias's drug usage; Δ brought in testimony from fellow basketball players that Bias used drugs; Δ motioned for summary judgmentHolding: summary judgment was granted because π did not present evidence to rebut Δ's proof that Bias was a drug user; Bias's parents' and his coach's testimony was not sufficient to rebut the proof since they did not attend parties where the drug use happened Note: Just brought in doubt. No specific evidence to rebut his drug use at parties OR another company that would have given him a million-dollar claim The burden of persuasion is on the moving party The burden of proving no issue of material fact is on moving party The burden of showing to the court that there is no issue of material fact (production) is on moving party Entitled to judgment as a matter of law This depends on the relationship of the moving party and the allocation of the distribution of burden at trial Rule 56(c)(1)A: If moving party at SJ = plaintiff at trial, then they have to make an affirmative showing Have to produce admissible evidence to support their motion Rule 56(c)(1)B: If moving party = defendant, then they can say "show your cards" Celotex motion We now have the entire discovery record and have combed it thoroughly; we have not found any evidence that would prove plaintiff's allegations; plaintiff must present evidence right now that would enable a jury to find for plaintiff; if the plaintiff can't do that, then the SJ should be awarded for defendant/moving party

Rule 11: Signings pleadings, motions, and other papers; repersentation in court; other santions

Rule 11 only covers papers and files relied on; applies to papers of any kind ina fedreral case. Any paper submitted to federal court has to be signed by at least one attorney or by the party if they are not represented. 11 (A) Signature verifies to the court that the coming representation is proper and formed after an inquiry reasonable under the circumstances. 11(B): Repersentation to The Court: By signing a paper or later advocating it, you are making a repersentation that it is: (1) Not for any improper purpose...not just to harass or delay other side. (2) Claims, defenses, and other legal contentions are warranted either by exsisting law or a nonfivolous arugment for changing law. (3) Factual contentions have evidentary support, or, if specifically so identified, will likely have evidentary support after a reasonable opportunity for further investigation or discovery. (4) Denials of factual contentions are warranted on the evidence, or, if specifically so identified, are reasonably based on belief or lack thereof 11(C) Sanctions: - When rule 11(b) is violated - Entire law firm is responsible for rule 11 violation committed by lawyer or anyone in the firm. - Motion for sanctions: motion for sanctions must be made seperately from any other motion and must describe the specific conduct that alledgly violates rule 11b. If you are the aggrieved party, you draft the motion and send it to the other party (under Rule 5), who has 21 days to fix the issue. After 21 days the motion may be filed if the other party has not fixed the issue. - Sanction imposed under this rule must be limited to what suffices to deter repition of conduct or comparable conduct by theose similarly situated - The court can order someone to show cause why conduct has NOT violated 11(b) - Purpose is deterrence: Client's may not be sanctioned under 11(b)(2) - monetary sanctions are limited: a court cannot impose monetary sanctions: a) against a represented party for violating Rule 11(b)(2), or b) on its own unless it made a show-cause order under 11(c)(3) - order for sanction must describe conduct and explain basis for sanction Walker v. Northwest Corp: Facts: The attorney for the plaintiff fails to plead complete diversity -tries to contend fed. subject matter jurisdiction The defendant files a motion for Rule 11 sanctions but they did not send a letter with the motion attached allowing the plaintiff to have 21 days to amend his complaint -The court can sanction the attorney for his shortcomings, but not the clients -Complaint alledging diverstiy of citizenship is alleged to have violated rule 11. Specifically, violated 11b2...legal contention not supported by existingng law and no nonfrivolous argument for extending, modifying, or reversing existing law -Defense sent letter and said "fix this or we'll seek sanctions."...were suppose to draft a motion and serve it on offending party, announcing that they have 21 says. Court says this is close enough accepted letter as adequate...though technically it wasn't - Violation: 11(b)(2): Didn't allege diversity in the correct legal framework from Strawbridge 11(b)(3): Didn't have evidence to support the claim that parties are diverse 3. Attorney was sanctioned Christian v. Mattel Facts: - Hicks files copyright complaint and says Matel in creating the barbie violated the copyright (mae a work of art substantially similar to copyrighted one and in doing so copied copyrighted version) of Christine's doll His complaint was frivolous because had he looked at back of head of matel doll he'd see the pre 1996 copyright and dismissed. He threw barbie doll off table and declined to look at copyright notice. Matel counsel invokes rule 11. Gave him a chance to withdraw his complaint before invoking rule 11...gave him 21 days to do so...he didn't so motion was filed. Problem is, rule 11 is limited to papers that violate the 4 part standard of 11b. Judge appears to be basing rule 11 finding on things beyond the scope of rule 11 itself. Was misconduct that violated rule 11....but judge threw in everything he did wrong...judge would have to limit sanctions to conduct that violates rule 11. When there is a finding of a rule 11 violation, court must report it to state bar. Courts ethically monitor lawyers, and each state has rules of professional conduct; violation of rule 11 may or may not violate rules of professional conduct.

Dismissing for Lack of Personal Jurisdiction

Rule 12: winning a motion to dismiss for lack of personal jurisdiction dismisses the case...if you lose, can't appeal until end of case -Not waiving right to contest anything else in lawsuit by making motion to dismiss

Rule 8: General Rules of Pleading

Rule 8: General Rules of Pleading (a) π's COMPLAINT must contain: (1) "short & plain statement" of basis of court's jurisdiction over the matter (2) "short & plain statement" of the claim showing that the pleader (π) is entitled to relief (3) Demand for relief (judgement - which could include different types of remedy) (b) Defenses (1) Δ's ANSWER must include: (A) In "short & plain terms," a defense to each claim (B) Admit or deny allegations against it ∙ Must be specific about which allegations responding to if multiple claims are within one sentence/paragraph (c) Affirmative defenses (1) In response to a pleading, Δ must affirmatively state any avoidance or affirmative defenses ∙ "use it or lose it" ∙ SHIFTS BURDEN of Proof to Δ! (d) Must be concise & direct (2) Can present alternative/inconsistent claims or defenses

Interpleader

Somebody has some kind of asset (fund of money, insurance policy, inheritance, art object, etc) that has multiple claims on it. Holder of asset doesn't throw into a pack of dogs but effecitvely does the same thing. Compels complaintants to dispute all their claims in this one lawsuit. In this example, Conley was like the stakeholder....stakeholder as complainant commences interpleader lawsuit against all potential complaintants, compelling complaintants to dispute their claims then and there. Exepcts to give something away but only wants to once...doesn't want to be in multiple suits. Stakeholder throws asset to court to let plantiffs fight it out. Purpose: lets stakeholders only have to pay out once How it works: Stakeholder (plaintiff) has an asset that is pursued by multiple claimants Stakeholder realizes he may have to pay one or more of them, but he only wants to do it once He does not want multiple inconsistent liabilities against individual claimants in different courts with different litigations Stakeholder "throws" the asset to the claimants and allows them to fight it out He files an interpleader action and is the plaintiff (even though he appears to be the defendant because he will have to pay out) The claimants are the defendants Interpleader is almost always based on state law Pretty much always a diversity case Rule 22 Interpleader - oridnary diversity case. P and D's must be 75K in controversey and stakeholder P must be diverse from each claimant D Statutory Interpleader - diversity between any two claimants (measure by diversity of claimants...not between claimants and D's); also gives federal longarm statute...can easily serve anyone in the country....and has been interpreted as not requiring a showing of minimum contacts (but really you always have to have minimum contacts in these type of cases). Most lawyers choose statutory, because nationwide service of process is so easy. Sometimes diversity requirements compel you to use one or the other Comparison of Rule 22 vs Statutory Interpleader Staturoy: - Diversity: minimal diversity as determined between claimants; need diversity of citzenship between two claimants. Amount in controvery: $500. - PJ: Nationaide service of process via federal longarm statute that can easily serve anyone in counry and has been interpreted as not requiring minimum contacts - Venu: Residence of one or more claimants - Injunctions: speciically provided for interpleader case in 28 USC section 2361. Rule: - Diverstiy: Complete diversity, as determined between stakeholder and claimant. Amount in controvery: over 75K - PJ: meet ordinary PJ rules; minimum contact - Venue: ordinary venue rules under 1391 - Injunctions: no specific basis...courts have used 28 usc 2361 - Possible to intervene an interpleader action under rule 24. What if the beneficiary sues the stakeholder before the stakeholder can file an interpleader? If the stakeholder has received notice from several claimants, they can ask the court to stay those proceedings in order for them to file an interpleader action They can also create an interpleader by counterclaim (rule 13[h]) If the Ps1 sues Ds2 and there are other P's both in s2.... The D moves to dismiss under 12(b)(7) in a Rule 19 action Joining the other heirs would not be feasible because it would destroy the complete diversity Plaintiff says dismissing is too drastic, and defendant can stay the case and file interpleader action to solve their worries There is statutory interpleader jurisdiction however because there is diversity between at least two claimants They should stay the case and file interpleader action rather than dismissing the case under rule 19

Rule 9: Special Pleading Matters

To allege fraud, define circumstances consituting fraud/mistake with particularity (who, what, when, where) - Malice, intent, knowledge, and other - Fraud has to be pleaded with "specificity"= general meaning of this is say specifically what fraudulent statement was.....what was the false repsersentation of fact? Where and when was it made and by whom? Stradford v. Zurich - Insurance polich covers doctor's premises; from Oct 10th-Dec 13th policy lapsed....started repaying on Dec 13th. Policy reinstated on Jan of 99 and doctor claims damages on Jan 17th...they cover it. Doctor later sues insurer for 1.5 million for business disruption. Insurance company counter sues and says they have to give back 150K...says you lied to us to induce us to pay that claim. Don't satisfy rule 9B...at a minimum you have to say what, who, when....have to specify content of alleged misstatements, which they don't (just saying fraud could mean he lied about all of the damages, exaggerated, etc). Can't say he lied about when and where. Ended up being dismissed without predjudice to try to satisfy factual requirements for pleading fraud. - Fraud requires more specificity because it allows for punitive damages and poses reputational har

Rule 12: Defenses and Objections; when and how presented.

Within 21 days, defendant must either make rule 12(b) motion OR answer (paper subject to rule 11) and preserve rule 12(b) defenses in that answer. Every defense must be preserved in "resposinvie pleading" (answer or motion to dismiss) If you do not preserve defenses, you can't use them later. (a) Answer must be served within 21 days of being served answer/complaint. Also list affirmativ defneses as listed in rule 8 (if you don't you waive them) - Go through complaint paragrpah by paragraph and admit, deny, say can't respond due to lack of info (b) Defenses that enable you to respond to complaint with motion to dismiss (motions must be asserted in answer-you must join all rule 12(b) defenses avaliable-"use it or lose it" 1. Lack of SMJ (only 12b motion that can be made after pleading 2. Lack of PJ 3. Improper venue 4. Insufficent process (little DP...PJ) 5. Insufficent service or process 6. Failure to state a claim on which releif can be granted 7. Failure to join party under rule 19 - May join all motions together - If you have rule 12(b) defenses but choose not to file a 12(b) motion, put them in affirmative defenses....also satisifies "use it or lose it" rule. - Don't always file a motion to dismiss, because, if you file an unjustified, frivolous motion to dismiss, you'll be sanctioned via rule 11. If saitfieis rule 11 but has little chance of winning, motion to dismiss will be denined.....and judge might think less of you for the remainder of the case (h) Waiving defenses: When you respond to a complaint, if you respond by motion, you must include all motions related to PJ and venue [(2) - (5)] or you waive right to use those defense Must raise 12(b)(2-5) in first motion Must join and list multiple 12(b)(2)-(5) together § Jurisdiction/venue/process issues § OR list them as affirmative defenses when filing an answer § You must assert these if you have them when you make the motion □ You waive them if you fail to properly assert them with the motion (g) -failure to state a claim...failure to join rule 19 party...are not waived. If you don't use it, you don't lose it Motion for judgement on pleadings: Would happen if D filed answer and and admitted all elements of claim...doesn't happen in real life. Zelenski: reflects old fashioned practice in responding to complaint...rational lawyers now go through each allegation/assertion and either admit each specific allegation, deny it, or they don't know and then at the end of all that list their affirmative defenses. Key legal point of this case: this case is handled under rule 15c....which didn't exist at the time.

Zelenski, rule 8, and rule 15

Zelenski: Reflects an old-fashioned practice in responding to a complaint...today lawyers go through each allegation and admit, deny, or say don't have enough info and list all their affirmative defenses at the end. Key legal point in this case: case is handled under rule 15C...which didn't exsist at the time. - Facts: Accident was on Feb 9th of 53; statute of limitations was two years....running out on 2/9/55. CCI (wrong defendant) reports it to insurance company (which happens to be same insruance company as right defendant). P doesn't find out that they sued wrong defendant until after stautute of limitations has run...now too late to file a new lawsuit against new, correct defendant. In order to provide justice, judge says case will proceed "counterfactually" against CCI...justifying doing so based on the answer, where CCI denied a bunch of allegations...court basically says they find this denial ineffective because they couldn't have possibly meant to deny everything in here....no controversye about Zelenski being hit with forklift (general dennial of this doesn't meet standard of rule 8...couldn't have denined contact between Zelenski and forklift in good faith). ....says this shouldn't have denined this part and therefore treats it as if they admitted it. - When there are mutliple allegations, list them out and admit and deny indivdiually to avoid this type of rule 8 violation. - important note: Wrong and right D both had same insurance company...so wrong D wasn't strapped with unfair burden. - RULE: You may issue a general denial, but if you wish to deny only parts of the complaint, you must specify the parts that you are denying.