Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
o Cognovit
Party can waive right of notice and appearance
Only granted when party has read and understood it, and received
something in exchange for signing it
o Implied consent
o General appearance
Non-resident motorist statutes
o Non-resident motorists involved in accidents are usually subject to jurisdiction
by act of operating vehicle within state
Tortuous acts committed within the state
Minimum Contacts Test
International Shoe Co. v. Washington (US SC, 1945)
forum, he must have certain minimum contacts with it such that the
maintenance of the suit does not offend traditional notions of fair
play and substantial justice
Contacts: sales solicitors in state
APPLICABLE TO INDIVIDUALS
Policy: rejects territoriality requirement of Pennoyer in favor of
reasonableness; recognizes growing interstate commerce; recognizes
reciprocal duties of companies to states
Limiting the MCT
Holding: remanded
Contacts to consider: store front capability of website (advertising,
soliciting, sales, customer service, interactionlike having a sales rep.
there), maintenance of traditional business contacts in forum, website
info (sales to the state [dollars; percentage of total profit; number of
products; customers; number of sales]); accessibility to forum state
(hits, etc)
Establishing MCT in claims unrelated to in-state activity
MCT
no contactsno jurisdiction
casual or isolated (unrelated)no jurisdiction
isolated (related)jurisdiction possible
single actjurisdiction (specific)
continuous but limitedjurisdiction (specific)
substantial or pervasivejurisdiction (general)
Effects as contacts
National Inquirer v. Calder (US SC, 1984)
Knowledge that what they write from Miami would affect people in
CA
o Specific jurisdiction
Keeton v. Hustler (US SC, 1984)
Enough subscribers in NH allowed for suit
o Specific jurisdiction
World-Wide Volkswagen v. Woodson (US SC, 1980)
Limiting long-arm provisions in product liability suits. Product must not just
find its way into the forum, to be sufficient for MCT there must be some
effort to market it in forum state, either directly or indirectly.
Holding: the foreseeability that is critical to due process analysis is not the
mere likelihood that a product will find its way into the forum state. Rather it
is that Ds conduct and connection with the forum state are such that he should
reasonably anticipate being hailed to court there
Ds purposely availed themselves of no benefits of the forum state
o No cars were injected into that stream of commerce
if D made efforts to serve directly or indirectly the market for its
products jurisdiction is okay, but if it was an isolated and unilateral
occurrence then jurisdiction cannot be exercised
Holding: although the mere fact that one party to the contract is a
resident of the forum state does not by itself mean that the other party
has minimum contacts with that state, the whole contractual
relationship may well, in a particular case, be sufficient to confer
jurisdiction
Choice-of-law clause: D signed contract with BK to use FL lawthus
he has availed himself of the benefits of that states law
o D was not surprised
o D was not subject to fraud, undue influence, or overweening
bargaining power
o Reasonable anticipation of out-of-state litigation
Explicit endorsement of aggregation of contacts
Creates two-prong test: MCT & FP + SJ
Policy: predictability, fair warning
LONG-ARM STATUTES
NOTICE
After determining that the party has PJyou must determine if notice was
constitutional and authorized by statute
o Reasonableness test (reasonable calculation)
D does not actually have to learn of the suit, what matters is that the
method used is reasonably likely to inform him
Mullane v. Central Hanover Bank (US SC, 1950)
Holding:
o Notice is limited by considerations of economy and
reasonableness
Publication is insufficient for those whose
names and addresses are know
Pennoyer
Publication is sufficient for those who are
unknown or unlocatable
o General reasonableness in view of all the
circumstances
Cost, importance of proceedings, availability
of other, better notification methods, etc.
o Individual
Summons and complaint included
FRCP 4(c)(1)
Service must be by a non-party over 18
FRCP 4(c)(2)
Personal
By serving him personally
FRCP 4(e)(2)(A)
Substitute
Often allowed by mail
By leaving summons and complaint at Ds residence with a
person of suitable age and discretion residing there FRCP
4(e)(2)(B)
o Green v. Lindsey (US, 1982)
Holding: eviction notices posted on doors of
tenant was not sufficient service because of the
substantial risks of children tearing them
downmail service should have been used
wasnt reasonably calculated
Agent
By serving a state official appointed or designated by law to
receive process
FRCP 4(e)(2)(C)
Local state law
FRCP 4(e)(1)
by serving D in the manner provided by either
1. the law of the state where the District court sits, if that
state has such a provision OR
2. in the manner provided by the law of the state where the
person is being served
Foreign defendants
FRCP 4(f)
o Any method allowed by a particular international treaty (the
Hague Convention) or any method allowed by the country
where service occurs can be used
o Corporation
o Manner provided by state where action is pending or where service is
made
FRCP 4(h)(1)(A)
o Service on a corporation may be made by leaving the papers with an
officer, a managing or general agent, or any other agent authorized by
appointment or law to receive process for the corporation FRCP
4(h)(1)(B)
o Manner provided by law of the state where action is pending or the
law of the state where service is made FRCP 4 (h)(1)(A)
o Special rules for serving foreign corporations
FRCP 4 (h)
(2)
o Waiver of service
FRCP 4 (d): allows P to in effect serve the summons and complaint
by mail, provided that the D cooperates. Actually, what P does is mail
D a request for waiver of service; if D agrees, no actual in person
service is needed.
Policy: the rule gives D financial and other incentives to grant
to waiver request
Procedure
P sends notice that action is being commenced, two
copies of waiver-of-service form, a copy of complaint,
and a prepaid return envelope. FRCP 4 (d)(1)(C)
The documents may be sent by first-class mail or other
reliable means
FRCP 4 (d)(1)(G)
Date must be stated
FRCP 4 (d)(1)(E)
Time to respond
D has 30 days to respond to request for waiver (60 for
foreign D)
FRCP 4 (d)(1)(F)
Incentives
Additional time to answer
o D gets 60 days following the date on which the
request for waiver was sent, in which to answer
the complaint (compared with 20 days from
service process, provided by FRCP 12(a).
Foreign Ds get 90 days.
D must pay costs of service if he does not waive
Before property is taken, D must be given a chance to defend against the claim
Pre-judgment remedies (protect P from D squandering assets before litigation
is over)
i.e. attachment
Three part balancing test to determine whether due process was violated when
Ds property was interfered with through a pre-judgment remedy
1. Harm to Ds interest from pre-judgment remedy
2. Risks of erroneous deprivation of Ds property rights
o Especially if additional procedural safeguards were not used
3. Strength of interest of P
o Connecticut v. Doehr (US SC, 1991)
Special appearance
o Now FRCP 12(b)(2) which allows D to make a motion to dismiss for lack of
jurisdiction over the parties; making this motion does not subject D to the
jurisdiction that he is protesting
Collateral attack
o If D defaults in an action in State 1, she may collaterally attack the default
judgment when it is sued upon in State 2. Most commonly, D collaterally
attacks the earlier judgment on grounds that State 1 did not have personal
jurisdiction over her, or did not have valid subject matter jurisdiction.
VENUE
any alien may be sued in any district of the United States where he has
jurisdiction
alien can be used to defeat subsection (1)
forum selection clauses
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If D moves to transfer
Policy: D does not get bonus change of law for
If P moves to transfer
28 USC 1406(a)
transfer to a district where it could have been brought when a suit is
brought in a district where venue is improper
also, if the court applying 1406 decides it lacks not only venue
but also personal jurisdiction, the court may probably
nonetheless order the transfer
here, law of transferor court does not apply
above precedent is related to 1404 only
SUBJECT MATTER JURISDICTION
ALL YOU NEED IS FEDERAL QUESTION JURISIDICTION OR DIVERSITY
JURISIDICTION TO BRING A MATTER INTO FEDERAL COURT
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5. 2 states
6. between a state and citizens of another state
7. between citizens of different states
DIVERSITY
8. land grants
9. alienage
Ruhrgas, AG v. Marathon Oil Corp.
Holding: Subject matter jurisdiction and personal jurisdiction can be addressed in
any order
FEDERAL QUESTION JURISDICTION
Jurisdiction extends to all civil actions arising under the Constitution, law, or treaties
of the United States
28 USC 1331
o Similar language to Article III
o Interpretation of the state has been narrower than that given to the
Constitutional language (which applies not only to original, but also to
appellate, jurisdiction)
o No adequate definition
SCin order for a FQ to exist, it must be the case either that federal
law creates the cause of action or that Ps right to relief necessarily
depends on resolution of a substantial question of federal law.
Franchise Tax Bd. V. Construction Laborers Vacation Trust
o State-created claim
Claim being asserted is one created by state law, but adjudication of
that requires interpretation of a federal law. SC held that this is no
sufficient to bring the case within the FQJ. In fact, if Congress in
passing a federal statute decides that there should not be a private right
of action for violation of that statute, a state-created cause of action
that alleges a violation of the federal statute as a an element of he
state-law will never be construed to arise under the Constitution, law,
or treaties of the United States
Merrill Dow Pharmaceuticals, Inc. v. Thompson (above and
below)
o SC held that there was no FQJ because Congress, when
it passed the FDCA, expressly decided that there should
be no private right of action for violations of the FDCA.
Given this congressional decision, it would undermine
the congressional scheme for the federal courts to
exercise FQJ, and provide remedies for a violation of
that statute, solely because the violation creates a
rebuttable presumption for negligence under state law.
Brief overview of when state law creates the cause of action in FQJ
Mottley
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DIVERSITY JURISDICTION
Controversies between citizens of different states
Article III, 28 USC
1332(a)(1)
o Rationale: attempting to defeat local prejudice
Amount in controversy
o Only in diversity cases
o More than $75,000
Not based on judgment, but Ps good faith pleading that he could get
more than $75,000
Interest not included
Eventual amount of recovery irrelevant
But federal court has discretion to deny costs to P, and even to
impose costs on him if he recovers less than $75,000 1332(b)
o Aggregation of claims
You can aggregate claims of plaintiffs against one D in a cause of
action
No claim must exceed $75,000just the aggregate does
Cannot aggregate claims against multiple Ds
Aggregation by multiple Ps
At least one P meets amountokay
o Supplemental jurisdiction.Exxon
No single claim meets the amount.usually not okay
o Exception: two or more Ps unite to enforce a single title
or right in which they have a common and undivided
interest
Special rule for class actions
o As long as one class rep. meets the $75,000
requirement, the others do not have toSJ (Exxon)
o OR class actions with $5 million or more can forward
even if no individual meets the $75,000 requirement
1332 (d)(2)
Counterclaims
If P sues in federal court for less than the jurisdictional amount,
and D counterclaims for an amount which (either by itself or
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Alienage jurisdiction
1332(a)(2)
Citizen of a state v. aliendiversity jurisdiction
1332(a)(2)
US citizens domiciled abroad cannot sue on or be sued under
DJthey retain US citizenship, but lose state citizenship
o Elizabeth Taylor
Alien v. alienno diversity jurisdiction
Foreign + US v. Foreignno diversity jurisdiction
Resident alien v. non-resident aliensplit courts
Literal reading says yes
1332(a), 1332(a)(2)
Most courts say noconstitutional problems
o Congress did not intend to grant DJ for suits in which
all parties are alien.probably unconstitutional
o Saadeh v. Farouki
Holding: legislative intent1332(a) limits DJ,
it does not expand DJ
US judicial power does not extend under
Art. III to suits involving two aliens (by
constitutional definition, not that of
1332)
aliens and US citizens present on each side does not destroy DJ as long
as US citizens from different states are in opposition
1332(a)(3)
Diversity involving partnerships and corporations
o Partnerships, unincorporated associations do not have a single state of
citizenship, every member counts
Carden v. Arkoma Associates
o Corporation is deemed a citizen of any state where it is incorporated and of
the state where it has its principle place of business
1332(c)
No adversary in DJ can be a citizen of the state where it is
incorporated OR where it has its principle place of business
Principle place of business: (1) corporate headquarters, home
office OR (2) where bulk of activity is
Devices to create or destroy jurisdiction
o Improperly or collusively joined parties not allowed DJ
1359
Assignment of claims
Kramer v. Caribbean Mills
o Holding: assignment claim made solely for the purpose
of creating jurisdiction, thus making it improper and
collusive under 1359, and therefore DJ was void
Failure to name indispensible parties
Devices to defeat removal to federal court
o No federal statute prohibiting improper or collusive joinder to defeat
jurisdiction
Assignment of part of claim
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SUPPLEMENTAL JURISDICTION
Additional claims and parties may be brought into a federal case without
independently satisfying subject matter jurisdictional requirements, once there is a
basic controversy as to which there is subject matter jurisdiction
1990 amendments added 28 USC 1367, which established the doctrine of
supplemental jurisdiction by reworking and combining two older judge-made
doctrines, ancillary jurisdiction and pendent jurisdiction
o pendent jurisdiction
if a federal court had jurisdiction over a federal question claim
between two parties, it could sometimes adjudicate a state-created
claim between those same parties, even though it would not have
jurisdiction if the claim were brought separately
used in situations where parties were citizens of the same
state, so that diversity did not exist. In such a situation, P
could gain a federal forum for her state-created claim by
linking it to a federal question claim, provided that the two
claims were sufficiently closely related to justify use of the
pendant doctrine.
Must be similar:
o United Mine Workers v. Gibbs (US SC, 1966)
Holding: state and federal claims must derive
from a common nucleus of operative fact,
and must be so closely related that usually a P
would be expected to try them all in one
judicial proceeding.
Initially perceived to mean that both
claims must arise out of the same event
or transaction
Constitutional basis
o common nucleus of operative
fact
o defining limitation from Article
III
Federal common lawdoctrine of
discretiondistrict court may
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19
Used in cases where there was diversity jurisdiction for at least one
claim between one P and one D, and additional parties, or additional
claims, were sought to be joined to that core claim. Mostly, AJ has
been used to give the federal courts jurisdiction over certain types of
claims made by parties other than the plaintiff, claims as to which
there would not be independent federal SJM because of either lack of
diversity or failure to meet the amount in controversy.
i.e. cross-claims between defendants
note: AJ eliminates amount in controversy requirement
generally not allowed for Ps
Owen Equipment & Erection Co. v. Kroger
so related:
like UMW
two claims would be part of the same case or controversy if
they derive from a common nucleus of operative fact, i.e.
derive from the same transaction or occurrence
otherwise the claim will be dismissed, and the case
goes on without it
Policy: keep litigation together
Similar claims in one lawsuit
federal question cases
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Claim by P
Against third-party D under FRCP 14,19,20,24
Claim against someone added after beginning
and not as a P
inconsistent with diversity requirements
corresponds to AJ
essentially codifies Owen Equipmentadditional claims by Ps are
severely restricted
Policy: in diversity-only actions the district courts may not hear Ps
supplemental claims when exercising supplemental jurisdiction would
encourage Ps to evade the jurisdictional requirement of 1332 by the
simple expedient of naming initially only those Ds whose joinder
satisfies section 1332s requirements and later adding claims not
within original federal jurisdiction against other Ds who have
intervened or been joined on a supplemental basis.
Not allowed if it provides means to evade DJ
Excluded claims and parties
Claims against third-party Ds by Ps
Claims made by P against a third-party D, pursuant to
Rule 14(a)
Compulsory joinder
Rule 19(a) covers the joinder of persons to be joined if
feasible. Neither a claim against such a person, nor a
claim by that person, comes within the SJ in a diversityonly case.
Rule 20 joinder of Ds
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by a representative of the class that satisfies the amount-incontroversy requirement, and there are no other relevant jurisdictional
defects, the district court has original jurisdiction over that claim.
No other jurisdictional defects: complete diversity present;
single case or controversy
if court has original jurisdiction over a single claim in the
complaint, it has original jurisdiction over a civil action
within the meaning 1367(a), even if the civil action over which
it has jurisdiction comprises fewer claims than were included
in the complaint.
Majority
1367 rejected Zahn
Zahn
Each class member has to meet the amount in
controversy
Second rule
Only class rep. must meet diversity of citizen
requirement
Rejected:
Indivisibility theoryunder which the district court would be
deemed to have OJ over a CA only if the court had OJ over
every claim in the complaint. Majority felt as though this was
inconsistent with SJ.
Contamination theoryby which the inclusion of a claim or
party falling outside the district courts original jurisdiction
(destroys complete diversity) somehow contaminates every
other claim in the complaint, depriving the court of original
jurisdiction over any of these claims
Might have merit when used to justify the requirement
of complete diversity
P (Md).state 100k.D (Va)
Q (Va)state 100kD (Va)
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Dissent
o Alternative reading
Dismiss parties not satisfying 1332 before we even get to whether we
can apply 1367
Preserves ancillary and pendent jurisdiction
Resolved in favor of continuity
o Majority read statute too broadly
Significance
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claim
1. The claim raises a novel or complex issue of State law
2. The claim substantially predominates over the claim or claims over
which [the district court] has original jurisdiction, OR
State claim may be dismissed
3. The district court has dismissed all claims over which it has original
jurisdiction
One especially important factor here is timethe later the
dismissal the better the chance of the court keeping the claim
Hypothetically, the district court could still hear a state claim even
though a federal claim was dismissed before trial
Policy: judicial economy, fairness to P
o No reason to start all over in state court
4. In exceptional circumstances, there are other compelling reasons for
declining jurisdiction
rare
o Must fall into 1 of the 4 classes in order for the court to dismiss
o The exceptional circumstances catch-all
Provides some flexibility, but the court has to carefully
justify a dismissal based on the catch-all
o No effect on personal jurisdiction
o PJ and service still requiredSJ speaks only to SJM
REMOVAL JURISDICTION
You can only remove from state to federal, NOT federal to state
Generally, any action brought in state court of which federal courts would have
had original jurisdiction may be removed by D to federal district court
o Exception
In diversity-only cases, the action is removable only if no D is a
citizen of the state in which the action was brought
1441(b)
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Rationale:
o DJ concerns out-of-state bias, here removal would not
defeat out-of-state bias
Removal statute
1441
o When a case is removed, it passes to the district court of the US for the
district and division of the place where [the state] action is pending. only
cases which could originally have been brought in the federal courts may
be removed
1441(a)
You must analyze original jurisdiction
FQ cases may be removed regardless of citizenship or residence of
the parties
1441(b)
In diversity-only cases, if D is a citizen of forum state, then
removal is improper
1441(b)
Otherwise, it is fine
Exception
o Class actions
Removal is allowed even if one or more Ds are
citizens of the state where the action was
originally filed 1453(b)
Whenever a separate and independent claim or cause of action,
within the [courts federal question] jurisdiction, is joined with one
or more otherwise non-removable claims, the entire case may be
removed and the district court may determine all issues therein
1441(c)
Rules of original jurisdiction apply to removal jurisdiction
o FQJ
FQ must be in well-pleaded complaint
Caterpillar, Inc. v. Williams (US SC)
o Ps claim contained a state law claim and the defense
would contain a federal claim. Court held that case
could not be removed to federal court on claim not in
Ps well-pleaded complaint
o Exception to the well-pleaded complaint rule
Complete pre-emption
If pre-emption is so clear that court will
interpret the complaint according to
federal law (as opposed to the state law
being put forth).
Levels of pre-emption
o No preemption
Stays in state court
o Pre-emption
Stays in state court, might
be heard to federal court.
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o Complete preemption
Can be heard in federal
court.
o DJ
Complete diversity of citizenship
Except in interpleader suits and class actions involving more
than $5 million
Amount in controversy
o Caterpillar, Inc. v. Lewis (US SC)
Claim wrongly removed to federal court because it did not have
complete diversity. Complete diversity established by the time of
judgment. Court held that the case judgment stands despite the defect
on pragmatic considerations (general efficiency will sometimes trump
fairness) of judicial economy and the fact this mistake of removal will
not happen to often (judges are smart and honest).
federal jurisdiction predicated on diversity of citizenship can be
sustained even if there does not exist complete diversity at the time of
removal to federal court, so long as complete diversity exists at the
time the district court enters judgment
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Remand
o In the relatively rare instance where D actually relies on
1441(c), P may score a partial victory by getting the
state claim sent back to state court
OR he may notdepending on ones reading
all matters
o District court may determine all issues therein, or in
its discretion, may remand all matters in which State
law predominates
o Some courts even hold that judges can remand
federal claim if state law dominates the matter
Remand
o If federal judge concludes that the removal did not satisfy the statutory
requirements, he must remand the case (all claims) to the state court from
which it came.
1447(c)
o Case may be remanded at any time during the trial for a lack of SMJ
1447(c)
o Cases can be remanded for defects in removal procedure within 30 days of
receipt in district court
1447(c)
Discretion to remand
o Federal court also has discretion to remand to the state courts if a
federal trial case would be jurisdictionally proper but unwise.
o This is most likely to happen if a FQ claim and a supplemental state
claim are both removed, and the federal claim is dismissed before trial
Carnegie-Mellon Univ. v. Cohill
o Codified under 1367(c)(3)
o Decision to remand is not appealable
1447(d)
Rationale: prevent frivolous removal. Prevent delay.
There are some extreme circumstances where the district
court may review it on writ of mandamus
Waiver
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action on the merits in state court. But federal judges have usually been
reluctant to find such a waiver, even in cases where D did such things as
taking depositions in the state suit.
Mechanics of removal
USC 1446-1450
o Filing
1446(a)
o Stay
Once the notice has been filed, the state court may take no further
proceedings until and unless the district court finds that no removal
jurisdiction exists, and remands to the state court.
o All Ds, except purely nominal ones, must normally join in the notice of
removal
Exceptions
E.g. Ds in cases invoking 1441(c) who are not involved in the
separate and independent claim, and Ds in certain class
actions
o Motion to remand
1447(c)
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Permissive counterclaim
13(b)
o Allows assertion as a counterclaim at Ds discretion of any claim that is not
compulsory
o No claim is far too removed from the subject of Ps claim to be allowed as a
counterclaim
There are exceptionslisted below
Compulsory counterclaim
13(a)
o Two requirements
1. It arises out of the transaction or occurrence that is the subject
matter of the opposing partys claim AND
2. It does not require adding another party over whom the court
cannot acquire jurisdiction
o Failure to state a compulsory counterclaim
Loss of the claim in future litigation
o Exceptions
Not compulsory even though they are within the same transaction
or occurrence as Ps claim. These include:
A claim which was the subject of another pending action at
the time the present action was commenced Rule 13(a)(2)(A);
AND
A claim in which the suit against D is in rem or quasi in rem
(assuming that D is not making any other counterclaim in the
action)
Rule 13(a)(2)(B)
o Rational for 13(a)(2)(B):
QIR and IR suits do not subject D to personal
liability; he can defend such a suit without
risking anything more than the property which
is under attachment. If a counterclaim by him
against P were compulsory, D would be put to
the harsh choice between: (1) losing his claim
forever through the failure to assert it, or (2)
making his claim and thereby subjecting himself
to unlimited personal liability (According to
most courts, personal liability results if D makes
a claim of his own). Therefore, 13(a)(2)(B)
gives D a chance to avoid unlimited liability and
at the same time preserve his claim for a
separate suit.
o Must be asserted in Ds pleading
Rule 13(a)
If an action is dismissed before it reaches the point where D must file
an answer, then no compulsory counterclaim ever comes into
existence
o Default by P
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o Policy
Avoid multiple litigations
Allow for consolidation
Transaction or occurrence
o no defined meaning in the courts
o if claim is logically related
same aggregate of operative facts
o rule of thumb
many courts are especially interested in whether there is a substantial
amount of evidence that bears upon both the claim and the
counterclaim, and which would therefore have to be considered
twice if the counterclaim were not allowed
o Policy: judicial economy
Counterclaims by third parties
o Any party may make a claim against an opposing party
Rule 13(a),
13(b)
Third-party D
Third-party D may counterclaim against either the original D,
or against the original P. (In the latter case, a claim by P
against the third-party D must first have been made)
Ps counterclaim
P could have a compulsory counter-counterclaim
o Regardless of whether Ds claim was compulsory or
permissive
New parties
New parties to a counterclaim can be brought into a suit, as
long as the joinder test of either Rule 19 or Rule 20 is satisfied
Rule 13(h)
Cross-claims
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JOINDER OF CLAIMS
Rule 18(a)
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36
37
38
o SJ
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Claims by original P
original P may assert against the third-party D any claim arising out
of the transaction or occurrence that is the subject matter of the Ps
claim against the third-part P
Rule 14(a)(3)
does NOT fall within SJ and thus must independently
satisfy jurisdictional requirements
o disallowing collusion
not required to meet venue as if it were a separate action
Joinder of claims
o Original D may join to his third-party claim any other claims he has against
the third-party D.
o Such joinder falls within Rule 18(a) which allows a party to join as many
claims as it has against an opposing party
Dismissal of main claim
o If main claim is dismissed before or during trial, the court still has the
authority to hear the third-party claims based on it, if these are applicable, and
are within SJ. Whether to exercise this authority is generally left to the trial
courts discretion.
1367(c)(3)
o
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Crossclaim between D1 and D2. Court found that cross-claim can be dismissed if the
original Ps claim is dismissed for lack of SJM. However, as was the case here, a
cross-claim properly permitted under Rule 13(g) under ancillary jurisdiction should
not be defeated by a decision on the merits adverse to the P on the Ps primary claim.
o Crossclaim can be dismissed if the original Ps claim is dismissed for lack
of jurisdiction; however, crossclaim may continue otherwise if original
claim is dismissed on non-jurisdictional grounds (court has discretion to
dismiss the crossclaim).
INTERVENTION
Rule 24 allows certain persons who are not initially part of a lawsuit to enter the suit
on their own initiative as intevenors
o Is really about your interest in a case and how if the case was decided
without you in it stare decisis would impede your interest
o Intervention allows you full status as a party in the courtroom
Alternativeamicus brief (friend of the court brief)
Two forms
o Intervention of right
Rule 24(a)
o Permissive intervention
Rule 24(b)
o Where the intervenor is permitted to intervene of right, no leave of court is
required for his entry into the case. Where the facts are such that only
permissive intervention is possible, it is left to the courts discretion whether
to allow intervention
Intervention as of right
24(a)(2)similarity to 19(a)(2)(i)
o Anyone meeting following criteria:
Intervention must be timely;
Interest in the legal subject matter;
Related to property or transaction that is the subject of the
action
Impaired interest;
Disposing of action may as a practical matter impair or
impede the movants ability to protect its interest AND;
Inadequate representation
This interest is not adequately represented by all parties
OR Statute
If outside cannot meet above criteria, he may nonetheless
automatically intervene under Rule 24(a) if a federal statute
gives him such right
o Stare decisis effect
Rule 24 has occasionally even been stretched to the point of requiring
the intervention of right of a party who is interested in the litigation
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only because it may set an adverse precedent whose stare decisis effect
may later hamper him
o Jurisdiction
Must meet SMJ
No SJ
Permissive intervention
o A person who has a claim or defense involving a common question of law or
fact with a pending action may be allowed to intervene at the discretion of the
court
Rule 24(b)
Rarely appeals due to discretionary nature
Must meet SMJ
INTERPLEADER
Technique whereby a party who owes something to one of two or more other persons,
but isnt sure which, may force them to argue out their claims among themselves
before coming to sue him. It is designed to prevent the party from being made to
pay the same claim twice.
Two kinds of interpleader
o Statutory interpleader.28 USC 1335
o Rule interpleaderRule 22
Need for jurisdiction over both (or all) claimants
o Solved by 1335 and 22
Federal statutory interpleader
1335
o Allows a person holding property which is claimed or may be claimed by two
or more adverse claimants to interplead those claimants
o Jurisdictional problems
PJ
Diversity
Amount in controversy
o Solutions
Nationwide service of process
2361
A court in which a stakeholder has filed a 1335 suit may serve
its process on ay claimant, no matter where in the US that
claimant resides or is found
Minimal diversity
1335(a)(1)
Diversity is satisfied as long as some two claimants are
citizens of different states
Amount in controversy
Property which is the subject of the suit must merely exceed
$500 in value as opposed to $75,000
Venue
1397
Suit allowed in jurisdiction in which any claimant reside
o Commencement of interpleader suit
Commenced by stakeholder (plaintiff)
Stakeholder must deposit into court the amount of the property in
question, or pose a bond for that amount
o Injunctions
2361
You must disclaim property
Typically used to freeze assets or require their delivery to a claimant
Stakeholder must deposit the property in question with the court and
has no right to deny the debt to the claimants
o All other suits restrained
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Procedure whereby a single person or small group of co-parties may represent a larger
group, or class, of person sharing a common interest
Class actions may be used where joinder of all the potential co-parties is not feasible,
either because the class is simply too large or because of the insuperable difficulties
of personal jurisdiction, venue, or diversity
o Only representatives must satisfy the requirements of personal
jurisdiction, SMJ, and venue.
One concern is that of due process because the results of this kind of mass litigation
must be binding on the absent members
Class can be made up of either defendants or plaintiffs
Class actions overcome mootness (relevance of the judgment) because you can
replace the representative as the case proceeds over time
Rule 23
Certification
Four prerequisites:
Rule 23(a)
1. Numerosity/Impracticality of Joinder
23(a)(1)
Class must be so large that joinder of all of its members is not feasible
Substitute for forms of joinder
Rule of thumb is about 40, but no magic number here
No exact number
geographical dispersion also taken into account
2. Commonality
23(a)(2)
There must be questions of law or fact common to the class
class should be a class that is it should consist of persons who share
characteristics that matter in terms of the substantive law involved
3. Typicality
23(a)(3)
The claims of defense of the representatives must be typical of those
of the class
Looking for the potential for conflicts between the representative and
the class as a whole
class representatives must stand, in significant respects, in the same
shoes as the average class member
4. Adequacy of Representation
23(a)(4)
The representatives must fairly and adequately protect the interests of
the class
Representative himself must have some stake in the litigation
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If the court finds that no class action is possible, the suit may
be continued by representatives, but with no res judicata
effect for or against the absent would-be class members
Sub-class
Alternatively, the suit may be continued by a sub-class of the
original class. In that event, no RJ effect extends to those
original class members not included in the new sub-class.
No right to appeal
If the trial court finds that the action should not proceed as a
class action, this finding is not a final order, and consequently
an immediate appeal generally may not be taken. The named
Os have to try the case as a non-class action (or with a smaller
class), and only on appeal from the judgment on the merits can
the correctness of the trial courts refusal to certify the class be
reviewed
Relief from Rule 23(f)
A court of appeals has discretion to permit and interlocutory
appeal from a district courts decision either to grant or to deny
class certification. So if the district court says no the Ps
request for class status, they at least have a fighting chance of
getting their appeal heard right away
o Also, if the district court grants class status the defense
may be able to persuade the court of appeals to hear an
interlocutory appeal on this grant, and then have it
overturned before undergoing a class trial
Settlements
o Any settlement of a class action must be approved by the court 23(e)
Designed to ensure that the interests of the absent class members are
adequately protected
notice in a reasonable manner of a proposed settlement must also be
given to all class members who would be bound by the proposal 23(e)
(1)
only notice to the named class representatives, not to the
unnamed members, is required before settlement of a puntative
class action that will never be certified
settlement-only class actions
class if certified for for settlement purposes only
settlement-only classes must me the same basic requirements
as class actions that will be tried
o management of action under 23(b)(3)(D) will not be
considered because there will be not action to manage
if settlement involves a 23(b)(3) class, it must offer a second chance
for individual members to opt out of the class and the settlement
23(e)(4)
and to prevent objectors being bought off by the settling parties,
objections may not be withdrawn without court approval 23(e)(5)
CAFA requires that if D is subject to state or federal regulation, that
the regulatory authorities be notified of the suit and a pending
settlement
28 USC 1715
Attorneys fees
o If the class is victorious (or receives a settlement), courts often reward
reasonable attorneys fees to the class lawyers.
Court has supervision of fees paid
o In class actions that recover money damages, court apply the common fund
doctrine where a P whose efforts create a fund is entitled to have those who
benefit contribute to his lawyers fee
Courts regularly award the class lawyer a fee taken directly from the
fund created by the litigation
o Calculation of attorneys fees
Percentage of claim
Consideration of the attorneys appropriate hourly fee while taking
into special risks, novelty of the issues, etc.
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Often its very hard to get federal class-action status for a mass-tort suit where the suit
relates to not a single accident but to many small claims of people who are exposed
to a faulty product at different times and different circumstances.
o Problems: differences in times/circumstances/damages
One rationale that has provided some possibility is the limited fund theory under
23(b)(1)(B)
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o Typicalityno
No plaintiff is willing to serve as a class
representative
o Adequacy of represenation...no
No attorney is willing to serve as a class
o Not enough evidence of a limited fundno 23(b)(1)(B)
California class (b)(3)
All actions
o Predominationcommon issues do not predominate
over the non-common issues
o Superiorityno
Individual litigation is the way to go because it
is more efficient
Random sampling of individual cases
help guides the litigation of future cases
costs. But the Court decided to leave for another day this issue of
whether such an incentive could be proper.
Significance
JUDICIAL DISCRETION
Rule 42. Consolidation.
(a) Consolidation.
If actions before the court involve a common question of law or fact, the court may:
(1) join for hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
(b) Separate Trials.
For convenience, to avoid prejudice, or to expedite and economize, the court may order a
separate trial of one or more separate issues, claims, crossclaims, counterclaims, or
thirdparty claims. When ordering a separate trial, the court must preserve any federal
right to a jury trial.
PLEADING
Brief history of pleading
Local courts/kings courts (issued writs)
Common law
Can you fit one of your claims into one of the traditional causes of action
Procedure for each cause of action
You had to assent to the facts and fight the legal claims or assent to the law and fight
the factual claims
Narrowing it to one issue
Court of chancery
System of equity
US adopts British common law and equity principles into one system of courts
1848Field Code
eliminates causes of actions (writ system)
still need to present a complaint with a great amount of detail
1938Federal Rules of Civil Procedure
Rule 2...there is one form of action, the civil action
Notice pleading
Much more lenient
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THE COMPLAINT
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mistake 9(b)
any denial of the performance or occurrence of condition
precedent 9(c)
the existence of official documents and acts or judgments, on
which the pleader plans to rely
9(d); 9(e)
material facts of time and place
9(f)
9(h)
Ps failure to specially plead one of the items listed in Rule 9 may
prevent him from recovering at all, or from recovering particular
items of damage
if item not listed in Rule 9, no heightened pleading required
courts may not require P to plead all the facts needed for a
prima facie case, if the matter does not fall within Rule 9
Twombly (US SC)
prevents fishing expeditions in which people make general claims in hopes of
obtaining discovery that will help them sharpen their far-reaching argument.
Iqbal (US SC, 2009)
P alleges a Bivens claim, a claim against a federal officer for violating a constitutional
right, on grounds that he was subject to harsh treatment because of his religion.
There is no respondeat superior against government officials for complaints against
the individuals under them.
In determining whether to dismiss a complaint, the court considered Twombly
2 part test presented by Iqbal
1. Filter legal conclusions
A certain degree of specific, detailed, factual statements that lead
to legal relief are required
o So, what do Ps attorneys do?
Allege more specific facts or leave some out?
2. Plausibility
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Majority
o Its a low threshold, but its stricter than mere fanciful things
use common sense here (based on prior beliefs,
general knowledge, etc.)
US AG is a bigotnot plausible
Questionable assertion
Some people get a benefit of the doubt
who are those people, we dont
necessarily know
Dissent
o Totally fanciful things
little green men, etc.
o test is a little bit unclear
does it blur the line between notice pleading and heightened
pleading?
We need to limit access to our legal system to people who can present some sort of
plausible string of factual statements that lead to a certain legal conclusion
Clinton v. Jones
Superficially simple
Quality of litigation is very high
Familiar
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THE ANSWER
In response to Ps complaint, Ds answer must state in short and plain terms his
defenses to each claim asserted against him and admit or deny the allegations asserted
against him. 8(b)
o This also applies to Ps answer to Ds counterclaim, to the answer of a thirdparty D to a third-party claim, and other such pleadings
o Defenses, like claims, may be pleaded in the alternative. D may even
make defenses which are incompatible with each other.
Denials
o Averments in a complaint, other than those concerning the amount of damage,
are deemed admitted if not denied in the answer 8(b)(6)
o Kinds of denials
General denial
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o Facts
o Securities fraud
o Transactional nexus
Buyer/seller of securities
o Application of 1367
Undisputed facts
Takes the facts in the light most favorable to non-moving
party (plaintiff)
Often casted in a way that marks the relevant factual and legal
issues
o Provides opportunity for legal analysis
Consideration law applicable to the facts
12(b)(6) asserts that on the facts indicated in Ps complaint, recovery is
not possible under any legal theory
o precedent
court follows applicable precedent
o relationship to 1367(c)
claim may be discretionally dismissed here, especially because it is
early on in the case
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12(c)
Jones v. Clinton
o D wants to file a 12(b)(6) on immunity grounds
After filing a 12(b)(6) motion, you cannot file another 12(b)(6) and
continue to do so successively
Judge may have been ambiguous on this
You do not waive the underlying issue because you can bring it
up through 12(c)therefore your motion is granted
o D is simply trying to delay as much as possible
Successive 12(b)(6) motions would eat up a lot of time
o Ds allegations in the 12(c) motion
D was not acting under the color of law
D was not discriminating against her on the basis of sex, but on
personal characteristics
AMENDMENT
Rule 15
Liberal policy
Amendment as a matter of course
15(a)(1)
o A pleading may be amended without leave of the court in the following
circumstances:
Before being served with a responsive pleading OR
15(a)(1)
(A)
21 days after serving the pleading if a responsive pleading is not
allowed and the action is not yet on the trial calendar 15(a)(1)
(B)
non-responsive pleading (response not required): i.e. answer
Amendment by leave of court
15(a)(2)
o if the requirements for amendment as of course are not met, pleading may be
amended only be leave of court or by written consent of the other side
the court should freely give leave to amend when justice so requires
15(a)(2)
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Relation back
o Where a pleading has been amended, if the claim or defenses asserted in the
amended pleading arose out of the conduct, transaction, or occurrence set
out or attempted to be set out in the original pleading, the amendment
relates back to the date of the original pleading.
15(c)(1)(B)
o The utility of this provision is in meeting the statute of limitations that have
run between the filing of the original complaint and the amendment. Without
such provision, P whose original complaint met the statute of limitations
might find himself barred by the statute, even though his amended pleading
was only slightly different from the original one, and even though D had
received fair notice of the general nature of Ps claim before the statute of
limitations had run.
An action is deemed commenced as of the date on which the
complaint is filed
o A single conduct, transaction, or occurrence
Relation back doctrine only applies where pleading as amended arose
out of the same conduct, transaction, or occurrence
When whats amended is simply the claim or theory, not the
underlying facts that are asserted in support of the claim, the
court will typically find that the same conduct, transaction, or
occurrence requirement is satisfied.
But where the underlying facts needed to sustain the new
pleading are materially different from those needed to sustain
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the original complaint, the court is likely to find that the same
conduct, transaction, or occurrence standard is not met.
Whether D is placed on notice: courts often phrase the issue
in terms of notice: if D reading the original complaint would
not be placed on notice of the essence of what will later be
claimed in the amended complaint, then the two complaints
dont involve the same conduct, transaction, or occurrence,
and relation back wont apply.
o Moore v. Baker
P claims D was violated informed-consent
protocol, but later amended to assert that D was
negligent in that way he performed the surgery
and post-operative case. Court held that Ps
amended complaint did not related back and
was time barred because the allegations in
Ps original complaint contained nothing that
would have put D on notice that the new
claims of negligence might be asserted. The
original complaint focused on Ds negligence
before P decided to have surgery, whereas the
amended complaint focused on Ds actions
during and after the surgery.
Informed consentmedical malpractice
Little dealbig deal
o Very surprisinglack of notice
Clear predjudice
o Bonerb v. Caron Foundation
P was injured while playing mandatory
basketball at rehabilitation center. P originally
filed a complaint based on Ds negligence
maintenance of the facility then left to amend
his complaint to add a new cause of action for
counseling malpractice. Court held that an
amendment which changes the legal theory of
a case is appropriate if the factual situations
which the action depends remains the same
and has been brought to Ds attention.
Allegations in the original and amended
complaints derived from the same nucleus of
operative facts involving injury suffered by P
on November 29, 1991. Thus notice was given
to D of the possibility of such a claim; therefore,
the amended complaint relates back.
Change of party
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Jones v. Clinton
o D attempts to go with a 12(c) motion attached to his answer in hopes to
revoke Ps ability to amend without having to gain leave of the court
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