Civil Procedure I Outline

Table of Rules
1. US Constitution Article IV, 1 Giving Full Faith and Credit to judicial proceedings of other states
2. US Constitution Amendment XIV, 1 Due Process Clause (to states)
3. FRCP 4(k) Establishes PJ over defendant who is served in state (with summons or waiver)
4. FRCP 4 Summons How to Serve Process on Defendant
a. FRCP 5 Service and Filing of Pleadings
b. FRCP 6 Time for Motion Papers
5. US Constitution Article III, 2 Constitutional grant for Diversity (between citizens of different states) and
Federal Question (arising under)
6. 28 U.S.C. 1332 Statutory grant for Diversity Jurisdiction
a. 28 U.S.C. 1359 Parties collusively joined to defeat diversity
7. 28 U.S.C. 1331 Statutory grant for Federal Question Jurisdiction
8. 28 U.S.C. 1441 Actions Generally Removable
9. 28 U.S.C. 1446(a)(b)(d) Procedure for Removal
10. 28 U.S.C. 1447 Procedure after Removal (Remand)
11. 28 U.S.C. 1448 Process after Removal
12. FRCP 81 (c) has rules for Removed Actions
13. 28 U.S.C. 1391 Venue Generally
14. 28 U.S.C. 1404 Change of Venue (when original venue for court is proper)
15. 28 U.S.C. 1406 Cure or Waiver of Defects (Change for improper venue)
a. Forum Non Conveniens Judicially created to dismiss when case is better handled in another
judicial system
16. FRCP 12 Defenses and Objections, Motions, Pleadings
17. FRCP 7 Pleadings Allowed
18. FRCP 8 General Rules of Pleadings
a. FRCP 9(b) Pleading Fraud or Mistake
19. FRCP 10 Form of Pleadings
20. FRCP 15 Amended and Supplemental Pleadings
20. FRCP 41 Dismissal of Actions
21. FRCP 11 Signing Pleadings and Motions Ethical implications
22. FRCP 18 Joinder of Claims
23. FRCP 20 Permissive Joinder of Parties
24. FRCP 21 Misjoinder/Non-joinder of Parties
25. FRCP 13 Counterclaim and Crossclaim
26. FRCP 42(b) Separate Trials
27. 28 U.S.C. 1367 Supplemental Jurisdiction

I. Introduction Buffalo Creek


Goals of Civil Procedure are to provide accuracy, consistency, fairness, efficiency, and finality

Substantive vs. Procedural Law (Erie doctrine) Statute of Limitations is substantive law

NOT a Common Law subject founded in Constitution, Statutes, FRCP

File and Serve a Summons/Complaint to a defendant. Summons is a court document, Complaint tells
the court what is alleged, what happened, and what is being sought

Three forms of relief Compensatory, Punitive, Injunctive

o After complaint, defendant can file motions and/or answer by admitting/denying, raising
affirmative defenses

Summary Judgment no genuine issue as to any material fact and therefore as a matter of law, the
moving party must win on this issue OR the case should not go to trial (if this is denied, issue goes to
a jury to determine it)

II. Personal Jurisdiction Where to Sue

In what state(s) can P sue D? Federal/State doesnt matter, court has to have POWER over defendant
or over his property
Three kinds In Personam, In Rem, Quasi-in-rem (QIR)
o In Personam Power over defendant because of connection with forum
o In Rem/QIR Power over defendants property
Ultimate limit of having power is Due Process (Constitutional Requirement), there must also be a
statute giving jurisdiction (i.e., long-arm statute)
o First assess whether a statute allows for PJ, if yes, then do Due Process analysis
Two kinds of In Personam Jurisdiction General or Specific

General Defendant can be sued in forum on a claim that arose ANYWHERE

Specific Defendant is sued for a claim that arose in the forum

Constitutional Limits

Personal Jurisdiction is a fundamental issue of Due Process and changes historically due to changes in
communication/technology

Pennoyer v. Neff (1878) Court has power over everything/everybody in the state

A second court is supposed to give full faith and credit to the judgment of the first court. The Federal
court in the second case need not give full faith and credit to the state court in the 1st case because
the 1st court lacked personal jurisdiction

Neff wasnt aware of the first case because he had no notice. Mitchell did not ATTACH the property as
required by the Oregon Code.
o If Mitchell had attached the property, Neff still might not have had actual notice but it would be
legally sufficient
o Every defendant must have notice against them and an opportunity to be heard

The other requirement is that of power. No one is subject to jurisdiction of a state unless they (1)
appear in court (giving consent); (2) served within the state or agent is served within state (presence
= general jurisdiction); (3) resident of state (domiciled in forum = General PJ); (4) have property in
state that is attached
o Service or attachment is demonstration of states power
o Serving Neff in CA would not help power and would only overstep ORs bounds. His property
must be attached. If state code provided for service in other states, this would violate 14th
amendment

Case 2 is finding who has title to property, in rem (using property as a means of securing PJ and case
involves property); first case was over money in personam

Milliken v. Meyer upheld PJ over a citizen not in the state the authority of a state over one of its citizens

is not terminated by his absence from the state

For in rem, youre only worried about the property and youre limited to only the extent of that
property; in personam is over the person

Hess v. Pawloski (1927) Given growth of automobile and transportation, states make statutes providing

that the DMV is out of staters agent of process, saying out of staters give implicit consent to be sued in a state
while using their roads

Consistent with Pennoyer because its service of process in state on Ds agent

Expands consent to implied consent

International Shoe v. Washington (1945)

Washington statute says notice must be served personally on employer if employer is in state or by
registered mail to last known address state serves on employee in the state and mails to HQs in
Missouri

Court has jurisdiction if defendant has such minimum contacts with a forum so that exercise of
jurisdiction does not offend traditional notions of fair play and substantial justice

A. Minimum Contacts Test: Two factors (1) are contacts continuous and systematic OR single and
isolated? (2) Does the contact give rise to the claim OR is it unrelated?
o Benefits defendant gets are tied to level of connection with state. Benefits beget obligations to
the state

atic

Continuous/System

Gives Rise
Unrelated

Yes

Single/Isolated

Maybe?

Related

Maybe?

No

B. Compare Minimum Contacts with Notions of Fair Play and Substantial Justice Benefits/obligations
is a fairness principle
o If contacts are continuous/systematic court has GENERAL PJ
o If contacts just give rise court has SPECIFIC PJ
Justice Black concurring worried Fair Play and Substantial Justice could be stretched too far and is
vague
o Nothing in the Constitution about fair play and reasonableness
o Wrong interpretation of due process clause that was unnecessary because this was an easy
case since the contact (International Shoes business in Washington) was continuous and the
cause of action was related to that contact
Nowhere does this overrule Pennoyer. This is the test ONLY if defendant is not present it implies the
4 bases for power in Pennoyer are correct

Modern Era

Grey (Ill. Supreme Ct.) If a corporations sells its product for ultimate use in another state, its not unjust to

hold them accountable there for any damages caused by defects. May be single/isolated but definitely gives rise to
the claim

McGee v. Intl Life Ins. (1957) PJ over a TX company in CA when a CA citizen paid premiums to them and

mailed her a reinsurance certificate. They made contacts with the state

D solicited that contact in CA

Claim arose from Ds contact with the forum for breach of very contract that brought defendant to
the forum

States interest California had an interest in providing a court for its citizens

Hanson v. Denckla (1958) No PJ for a DE bank in FL since a PA citizens set up the trust in DE then

moved to FL DE bank never established contacts with FL

Court finally says no!

Purposeful availment To have a contact under International Shoe, contact must result from
purposeful availment. The DE bank never reached out to Florida; the only reason they were there is
because their client unilaterally moved ther.

Unlike McGee where the TX company sought business in CA

World-Wide Volkswagen (1980) (Justice White)

Regional Distributor and dealer in NY challenge that they meet the OK Long Arm Statute and believe
statute is unconstitutional

Statute was written after International Shoe believing that defendant would still benefit from the state
since the car was used there
Fair Play and Substantial Justice analysis (1) Burden on defendant, (2) states interest, (3) plaintiffs
interest, (4) interstate efficiency, (5) shared state policy REASONABLENESS FACTORS
o Burden not so severe here, so no PJ because of lack of minimum contacts
Defendants must seek out the benefits that give rise to the obligations purposeful availment. Degree
of predictability that allows defendants to structure their primary conduct with some minimum
assurance as to when that conduct will/will not render them liable to suit
o It needs to be foreseeable that defendants could get sued in that forum
o Here, plaintiff drove car to OK, not defendants

Contrary to Grey, Ohio company put product together for marketing in Illinois (they knew it

was sold there)

No jurisdiction because defendant did not purposefully avail themselves of OK

Brennan Dissent Car is intended to be moved around, theres not much burden on defendant

Pay attention between use of rules Hanson (unilateral activity of one party cant attribute contact to

defendant) over Grey (Stream of Commerce Test) and

Minimum Contacts Analysis: (1) Continuous/Systematic vs. Single/Isolated; (2) Gives Rise/Unrelated;
(3) Purposeful Availment

Continuous
and(1984)
Keeton and
Calder
Systematic

PJ upheld since defendants were targeting harm in CA (effects test)

You can have minimum contacts by making an effect in the forum. You dont need physical presence

Burger King v. Rudzewicz (1985) (Justice Brennan)

Gives Rise

First case in Federal Court!

Unrelated
o Federal Court looks
to FL Long Arm Statute via FRCP 4(k)(1)(A), going to Federal Court doesnt
change the PJ analysis

5th Amendment protects due process by Federal Government, 14th extends it to states
Federal courts in a given state have the same reach as state courts under the federal rules
Single/Isolated

Purposeful
Availment

This case is about evaluating PJ under a breach of contract. Merely having a contract with a FL citizen
doesnt make you liable to be sued in FL
You must have a relevant contact before fairness is even asserted. Here, the contact was easy because
they made contract (availed themselves of FL law) in Florida
o With a contract, focus is more on contracts relationship with forum state than with defendants
action CONTRACT TEST

On Fairness burden on D to show that forum is unconstitutional so gravely inconvenient that youre
at a severe disadvantage in the litigation. Wealth of parties is irrelevant
Choice of law analysis is separate from PJ analysis Choice of law is around claims relation to state
(broad), PJ is defendants relation to state (narrow)
o Contract was a 20 year deal, through negotiations and course of dealing, defendant
purposefully availed himself
o Determined to not be unreasonable
Stevens and White Dissent, saying this offends notions of fairness

Asahi (1987) (Justice OConnor)

Stream of Commerce question if you make something and sell it to State B, company in state B uses
your part in their product and sells it to states C, D, E. Can you be sued in C, D, E?
All judges except Scalia agree on Reasonableness unreasonable to litigate against Asahi in CA (too
heavy a burden of asking a foreign defendant to litigate in US and plaintiff is Taiwanese not a CA
citizen)
Even Brennan finds this unreasonable since ALL of the factors are against CA litigating this suit
Stream of Commerce/Minimum Contacts analysis:

Brennan says all you need is awareness for stream of commerce. He believes
OConnors analysis is a departure from Worldwide Volkswagen where the court distinguished
between stream of commerce (yes PJ) and someone else bringing it to state (no PJ) since
putting something in stream of commerce gets you economic benefits

OConnor - Awareness that it might go to forum doesnt mean purposeful availment,

defendant must have purposefully directed act to the forum state (an intent to serve
forum state);

NO ONES STREAM OF COMMERCE ANALYSIS YIELDS A MAJORITY OF JUDGES SO

COURTS USE BOTH TESTS (purposefully directed vs. awareness)

Transient Presence
Burnham v. Superior Court of California (1990) (Justice Scalia)

Ex-husband is served by his ex-wife in CA when hes visiting. Only way this works is if CA has General
jurisdiction

Is presence and being in the state grounds to assert PJ? YES

Question becomes do the Pennoyer traditional bases of power live or were they replaced by
International Shoe factors? Another split!

Scalia Presence when served is ok on its own no need for Intl Shoe minimum contacts
analysis because of Pennoyers historical pedigree

Shoe itself implied this would be ok on its own because of presence in the state

Believes Shaffer (below) said that where the defendant is not present, International
Shoe should apply here, D is present

Brennan Historical pedigree doesnt matter, you must assess under Shoe always

He said Burnhams contacts were sufficient to give general jurisdiction though, so all
justices agree

According to Brennan, anyone who has ever set foot in California for 3 days is subject
to general jurisdiction there (received benefit of CAs roads, fire, etc.)

General PJ and Consent

General PJ is Continuous/Systematic when its unrelated to the claim

Perkins is clearly General PJ since Perkins had offices in Ohio and president of company was there it
was a temporary HQs

Purchases from a forum do not rise to general PJ level, sales might because there may be an

opportunity to find that a seller avails itself of forum because getting revenue (Rosenberg v. Curtis)
Helicopteros v. Hall (Blackmun)

Continuum between unrelated and giving rise, the more related it is, the less contacts you need (and
vice versamore contacts = less related)

General Jurisdiction deals with continuous & systematic axis versus gives rise/unrelated
o General PJ is Continuous/Systematic when its unrealatead to the claim

Court says no General PJ for Helicopteros in Texas because then anyone could sue Helicopteros for
anything in TX which is unfair

Constitutional Analysis
-Does one of the Pennoyer traditional bases apply? If yes, go to the Burnham split. Maybe presence is good on its
own or maybe you need to do Shoe minimum contacts analysis.
-If you do need to go to minimum contacts analysis:

(1) relevant contact between defendant and forum (a) contact from purposeful availment and (b)
forseeability must be foreseeable that defendant could get sued there;

(2) fairness (a) relatedness Does plaintiffs claim arise from defendants contact with forum? This is
assessing general or specific jurisdiction, then (b) five fairness factors (burden on defendant)

(i) inconvenience for defendant/witnesses; (ii) states interest; (iii) plaintiffs interest; (iv)
interest in efficiency; (v) interstate interest in shared substantive policy (little opinion on (iv)
and (v); Kulko No jurisdiction because of interest in family harmony)

Statutory Analysis

Always start with the statute!

Every state has statute based on the Pennoyer traditional bases as well as statutes that let you go after

nonresidents (specific jurisdiction statutes, i.e., Hess motorist statutes, long-arm statutes)
Statutes vary from state to state some have laundry list, some just say jurisdiction over defendant
who commits a tort in our state

Look for a fact pattern where you sell something in B and it blows up there. Did you commit a
tort there? Some say yes because injury is there, others say no because your negligence was in
state A and the statute doesnt apply to you
o If you meet long-arm statute, youll usually have relatedness of claim
Long-Arm statutes Courts need it to authorize suits against out of state defendants. Could be
specific or have no limitation at all (consistent with state/US constitution)
o If youre NOT worried about efficiency, youd want one without limitations because you dont
care about stepping on others toes
o

In Rem and Quasi In Rem Jurisdiction

Difference between in-rem and QIR is that with in rem, the suit itself is about who owns the property.
With QIR, dispute has nothing to do with who owns it

Example Pennoyer arose from an action after Mitchell v. Neff which was about breach of contract.

Its a QIR suit that would have worked if property was attached
o Property is attached to get jurisdiction over defendant the property isnt really in question
though
For In Rem and QIR, court must seize property at the outset of the case
First step Statutory analysis theres an attachment statute in every state that allows seizure as
basis of jurisdiction for property which defendant owns. Next, Constitutional Test:

Shaffer v. Heitner (1977) (Justice Thurgood Marshall)

Can DE have jurisdiction over corporate officers because of their position in the DE company?

Quasi-in-rem Jurisdiction over the property and the property is unrelated to the claim (like in
Pennoyers first case)

Court says this is in personam in disguise since claim has nothing to do with the property attached

Issue is should we apply International Shoe to a quasi in rem case?

YES there is no purposeful availment in this case and jurisdiction would be unreasonable so

defendant wins
After this case, DE passed a statute giving jurisdiction to state over officers of a DE corporation

In addition to seizing property at outset, you still need to show that defendant meets International
Shoe
o

The Constitutional test for in personam, in rem, and QIR is the same!

Internet & Long-Arm Statutes

Revell v. Lidov (5th Cir. 2002)

Combination case of effects test and Internet Approach (Zippo test)

Zippo test sliding scale to measure a websites connection to the forum state Purposeful

Availment Component
Lidovs article was posted on an internet site (not a newspaper) owned by Columbia

Regarding Columbia having General PJ, theyre doing business with TX but not in TX not substantial

contacts and falls short of the Perkins standard

Effects Test Harm not directed at Revell in TX because the defendants didnt even know he was in TX.
Even if they did, harm still would not have been felt there

-Before we had Stream of Commerce Test (Asahi), Effects Test (Calder), and Contract test (Burger King),

this gives us Zippo test to determine interactivity of a website

Passive to more interactive (making sales, etc.)

-Differing perspectives on PJ, maybe Internet needs its own International Shoe-like test

-Many foreign countries have a much broader PJ approach

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III. Notice

Governed by Federal Rule 4:

Definition: Process consists of a summons and a copy of the complaint

o Summons is a symbol of courts power over you 4(a)(1)

Service can be made by any NON-party who is at least age 18

To serve an individual, Rule 4(e). 4(e)(2) gives three alternatives:

(A) Personal Service
(B) Substituted service at defendants dwelling (usual abode) AND you must serve someone of
suitable age (it does NOT say age 18) and discretion who resides there
o (C) Serve defendants agent
Remember 4(e)(1) - You can use methods for serving process allowed by state law. State where
federal court sits AND where service is effected
To serve a business, 4(h)(1) Serve an officer or managing or general agent someone of significant
responsibility given the job description
o 4(e)(1) applies here too. You can use state methods
Waiver of service, 4(d). This is NOT service by mail, its waiver of service by mail
o
o

Send to defendant process (complaint) and a waiver form and a SASE. If she returns it by 30

days, then we deem it waiver of service

If she doesnt mail it in 30 days, then we have to serve process formally with defendant paying
the cost of doing so
o Benefit of waiver to defendant is it gives 60 (or 90 days outside of US) to file an answer
Once the complaint is filed, you have 120 days to serve the defendant
Statute of Limitations ends in some states when you file the complaint, in others when you serve the
defendant
o It starts running at time of injury or knowledge of injury
o

Constitutional Requirements

Notice and service is providing notice, not as a means to get PJ over defendant, but to let defendant know
that an action is being brought against him

Notice and PJ challenges come up together many times

Mullane v. Central Hanover Bank (1950) Criteria for minimum notice

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Beneficiaries must be notified to see if they have any objections to what is being done with the money
Notice and PJ challenges come up together many times Mullane raises both
Says due process is being deprived because its beneficiaries property
Constitutional Minimum shouldnt depend on in rem/in personam
Cost v. Benefit analysis How much would it cost to provide better notice and whats the benefit of the
added notice?
o Notice must be reasonably calculated to apprise interested parties of the pendency of the
action. Means employed must be desirous of actually informing the absentee
o Publication is adequate when beneficiaries are unknown (cost of finding them is high and
benefit of them is small since many dont have actual interest in trust)
o Known Beneficiaries with Addresses must be served by mail or personally PERSONAL
SERVICE IS THE MAX!

If by mail, someone in the class of beneficiaries will likely respond and spread the
word. Cost of personal service on each beneficiary is too high
Mail is adequate here, NOT in all/most cases
If its one beneficiary, personal service is more appropriate

Jones v. Flowers (2006) If P becomes aware that notice was not received, she may have to pursue other

means

Here, state became aware D wasnt getting service because mail kept getting returned. Court required
them to make service by other means

Statutory Requirements

National Dev. Co. v. Triad

Khashoggi has many houses and is served in NY. He says there can only be one dwelling or usual
place of abode for service

Court says a person can have two or more abodes provided each contains sufficient indicia of

permanence
Court looks to money he spent on refurbishing place, listed it as residence in bail application, and he
was present at time of service

Previously district court said its not dwelling for service but he got actual service

Circuit says NO. Actual notice does not suffice to cure a void service. Allowing receipt of summons to
suffice undermines Rule 4. What would be the point of following it?
o Conversely if you follow Rule 4 and person doesnt get the notice, its still proper service
o Getting notice adds to the present at time point, its not entirely irrelevant its just not wholly
necessary

The fact that you get actual notice does not mean that notice was done properly or constitutionally

Notice is necessary for PJ. Since PJ or Subject Matter Judgment are the only things you can challenge
collaterally, you challenge notice as it relates to PJ

12

IV. Subject Matter Jurisdiction Federal vs. State

Court

13

Federal courts have limited SMJ, they can only hear certain kinds of cases prescribed by Constitution
and statute

jurisdiction. For 5% of cases, federal courts have exclusive jurisdiction (bankruptcy, patent, securities,
etc.)
o Expertise factor of certain issues
SMJ can NEVER be given by consent of parties and can NEVER be waived (Rule 12(h)(3))
Plaintiff must plead that federal jurisdiction exists. Rule 8(a)(1) short and plain statement of grounds
for courts jurisdiction
Courts have SMJ via Constitution and Statute
o Federal Question + 28 USC 1331
o Diversity between citizens of different states + 28 USC 1332
Statutory power is needed because only court created by Article III was SCOTUS

Diversity Jurisdiction

Most cases (95%) filed in federal court can also be filed in state court since states have concurrent

28 USC 1332 (1) A case between citizens of different states; (2) amount in controversy must
exceed $75K
25% of civil federal filings
Founders created this to give an impartial federal forum to encourage out of state investment and
economic expansion
Main purpose is to avoid local bias federal forum is viewed as unbiased
o Critics say local bias has gone away with increased communications and it only affects the
judge who presides, not the law applied
o Proponents highlight that some state judges are very biased and need to please local
constituencies because theyre elected (subject to political whim), whereas federal judges are
appointed and insulated. Also gives lawyers options and juries are drawn from wider areas
Thinking back to WorldWide Volkswagen, the Robinsons added the seller and distributor to the case. If

the case were kept in state court, the local county had plaintiff-friendly juries. Since Robinsons were
citizens of NY, keeping seller and distributor (also from NY) on the case destroys diversity and keeps
the case in state court
Complete

Constitution Article III 2 - Judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under
their Authority; to Controversies between Citizens of different States

Statute 28 USC 1332(a)(1) - The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs,
and is between citizens of different States;

Strawbridge v. Curtis (1806) Complete Diversity Rule

Diversity only if ALL plaintiffs are of diverse citizenship from ALL defendants

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Theres a need to control federal docket because a high percentage of cases were federal in nature. If
either side has citizens of the same state, then the bias of state court argument is rendered moot

Strawbridge interprets the original statute, which read the suit is between a citizen of a State where

the suit is brought, and a citizen of another state

o Statute was changed to just citizen of a state and citizen of another state
Strawbridge interprets 1332, not the Constitution. So the Federal Interpleader Act, for example,
which requires minimal diversity (not complete) can still be Constitutional
Despite saying essentially the same thing, Constitution and statute are interpreted differently since
Constitution has wider reaching effects.
o Interpret Constitution broadly, interpret statute narrowly

Individual Citizenship

Mas v. Perry (1974)

Jean Paul Mas is from France, his wife is from Mississippi. Theyre living in Louisiana and sue Perry, a
voyeur, in Louisiana. He challenges diversity
Sentence after (a)(4) alien considered citizen of State of domicile is added AFTER this case
o He has jurisdiction via (a)(2) - citizens of a State and citizens or subjects of a foreign state;
Citizenship = Domicile (NOT residence) = true, fixed, and permanent home and principle
establishment, and to which he has the intention of returning
To change domicile, you must (1) take up residence/physical presence in a different domicile; (2) with
intention to remain there permanently
o You only have one domicile at a time

Robinsons in WWVW had intention to change domicile to AZ but they werent physically there,

so theyre citizens of NY still

To determine intent to remain permanently, you look at all evidence drivers license, bank
accounts, gym membership, voting, etc.
o Mrs. Mas was a citizen of Mississippi, so theres diversity
Usually, the wife takes on the citizenship of her husband but here that doesnt make sense because it
would be weird to give her French citizenship. She doesnt lose her US citizenship by marrying an alien
and for diversity purposes, she hasnt changed or domicile or state citizenship wither
o Under the new (a)(4) rule, would she take up Louisiana domicile?
o

Citizenship is determined at the time the claim is FILED, otherwise, people may move during

trial. Lawyers use this rule to their advantage

In this case, its desirable for federal court to have jurisdiction over both Ps claims since the district
court had jurisdiction of Mr. Mas action and the claims were interdependent

-If one P could not show diversity, Rule 21 gives district courts the authority to dismiss the non-diverse,

non-indispensible parties from the suit

-In 1990, Congress amended 1332(a) to add a sentence after (4) providing that an alien admitted for

permanent residence is deemed a citizen of the state she is domiciled for diversity purposes

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7th Cir. said permanent resident alien is considered both an alien and a citizen of the state of the
domicile
3rd Cir. said permanent resident alien is deemed to be a citizen of the state where domiciled and NOT
an alien
If a US Citizen has dual citizenship with another country, most courts dont allow foreign citizenship to
create alienage jurisdiction where diversity wouldnt exist
o Some courts interpret complete diversity to mean that if a party has dual citizenship, other
wised must be diverse from BOTH citizenships

-If a plaintiff tries to manufacture diversity by assigning her claim to someone else, courts must assess

whether the assignment violates 1359 Collusion)

A district court shall not have jurisdiction of a civil action in which any party, by assignment or
otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.

This applies to collusive creation of jurisdiction, not to a party properly changing their domicile

following the steps in Mas

1332(c)(2) says courts look to citizenship of decedent, minor, incompetent and not to citizenship of
representative in determining diversity

-Domestic Relations and Probate Exceptions Federal courts refuse to hear domestic relations cases
(divorce, alimony, child custody) State courts are better suited

Narrow exceptions, doesnt mean Federal Courts will never hear cases involving conduct of estate
administrators (see Anna Nicole Smith case)

Corporate Citizenship

(c)(1) Citizen of ANY state in which it has been incorporated and of THE state where it has its principle
place of business (nerve center)
o A corporation could in theory be incorporated in multiple states but thats rare

Corporate citizenship used to be only for state of incorporation which defeats purpose of avoiding out of
state bias (c)(1) remedied this
Randazzo v. Eagle-Pitcher Industries, Inc. (E.D.Pa. 1987)

Predisposition is that Federal courts DO NOT have jurisdiction so Rule 8 says P must show grounds why
it exists. If he does not, court MUST dismiss the complaint
1332(c)(1) says citizen of any state it has been incorporated and THE state where it has its PPOB.
o Ps attorney wrote corporation is organized and existing under the laws of Delaware with a
registered office in Philadelphia

Judge said this was insufficient and dismissed the complaint sua sponte because to consider the case
would be unconstitutional

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Hertz Co. v. Friend (2010)

Hertz is being sued in state court by former employees. They removed it to federal court and Plaintiff
challenged it, saying they were citizens of California.

Competing arguments Hertz says their PPOB is in NJ because thats where their HQs is (nerve

center). 9th Circuit precedent its where the plurality of business occurs (muscle center)
SCOTUS resolves the split and decides that PPOB is where corporations high officers direct, control,
and coordinate the corporations activities the Nerve Center

Reasoning Corporate citizenship used to be based on shareholders citizenship where it was

incorporated incorporation + PPOB Nerve Center because its easier than gross income test and
every business has a PPOB
o Public often considers a companys main HQs its PPOB
o Foolish for PPOB in a state where most of its business occurs just because a state has a big
population
o Easier to administer and promotes greater predictability (judicial economy, predictability,
uniformity)
o Legislative history Removed Gross income to change it to PPOB for clarity

Court admits its not perfect. If a corporation has its HQs in NY but does most of its business in NJ,
there can still be out of state bias by trying in NY
o In view of necessity of having a clearer rule, there must be anomalies

If alleged nerve center is really just a mail drop box, courts should instead take nerve center as place
of actual direction, control, and coordination
Non-Corporate Business Citizenship

Partnerships and other non-incorporated business associations are not seen as entities separate from
the people who run them

1332(c)(1) does NOT apply to non-incorporated businesses the business is the citizen of ALL states
of which its members are citizens
o This means that the Teamsters Union is a citizen of all 50 states and cant be brought into
federal court on diversity matter alone

Belleville Catering Co. v. Champaign Market Place, LLC (7th Cir. 2003)

It was alleged that P is incorporated/PPOB/individual plaintiffs are from Missouri. Defendant is a

Delaware LLC with PPOB in Illinois. Defendant never researched the citizenship of every member of the
LLC to determine its citizenship. During oral argument, it was determined that P was incorporated in
Illinois rather than Missouri
Case dismissed because both sides have Illinois so no diversity
First off, how can an LLC be incorporated in Delaware? You need to look at formal members of LLC and
determine their citizenship
Next, this is an admitted Rule 11 violation because Plaintiff should have known its own state of
incorporation and thus shouldnt have filed in federal court
Answer should have pointed out that Ds lawyers had to find the legal status of an LLC. Trial court
should have inquired here as well
D then says well since it already went to trial, cant we just go with the judgment anyway? Judge
SLAMES this argument and says its unconstitutional you cant proceed once you know this fatal flaw
Dismissed and costs for furtherance of the matter should be on attorneys who messed up

17

Amount in Controversy

Amount in controversy is not Constitutionally required. Its there to show that federal courts are not
small claims courts - $75K+ required is designed to cut down the number of cases filed (docket
control)

Amount of controversy is determined by plaintiff in good faith, unless it appears to a legal certainty
that claim is really for less than jurisdictional amount (like in a breach of contract case, statutory cap)
o Its for claim alone, not claims + costs of litigation

In Mas, defendant challenged amount in controversy because Mr. Mas got 5K (less than

required 10K). Judgment amount is irrelevant as long as amount claimed by P is made in good
faith
1332(b) If someone gets less than jurisdictional amount (75K), the court MAY order the plaintiff to
pay defendants fees, as well as their own.
o If this was a case for removal, it doesnt kick in for defendants side. The amount in
controversy is where plaintiff originally filed the claim
Aggregation of Claims When can a plaintiff add together separate claims to satisfy amount in
controversy?
o Rule is that each P must meet amount in controversy vis a vis each D

One P v. One D P can aggregate all claims to meet the requirement, even if theyre unrelated

legally or transactionally
Multiple Parties on either side Aggregation generally not allowed, even if claims are related
transactions
o For Joint claims, use the total value of the claim and the number of parties is irrelevant

This is because in a joint claim any one of the multiple tortfeasors could be held liable
by himself
If whats sought is injunctive relief, you have to monetize the benefit and costs to defendant it either
is above the 75K threshold, it gives jurisdiction
o

Federal Question

Arising Under

Constitution Article III, 2

Statute 28 USC 1331 District court shall have original jurisdiction of all civil actions arising under
o
o
o

General FQ statute there are specialized ones for antitrust, patent/trademark, etc.
States originally heard cases under federal law because they could ultimately be reviewed by
SCOTUS, 1331 wasnt passed until 1875
No amount in controversy requirement under 1331 (there was, but it was abolished in 1980
because none of the specialized grants had it

Louisville & Nashville RR v. Mottley (1908)

18

RR refused to honor passes after statute against the passes was passed
Court here looks to the jurisdictional issue what is arising under
Court says theres no FQJ because arising under part would be a defense, not in plaintiffs complaint

Complaint was for a breach of contract which is a state law claim. The federal issue comes up
when the plaintiff is listing potential defenses (theyll say the Congressional law bans
recognition of the passes)

Well-Pleaded Complaint Rule: Only looking at factors/elements to address the claim that the
plaintiff had. Any other issues are not well pled
o Any counterclaim is part of Ds answer and NOT part of complaint. If Ps claim doesnt invoke
FQJ, counterclaim arising under federal law will not provide FQJ
o Ask yourself Is plaintiff enforcing a right under federal law?
Proponents say it lets courts determine from outset (by the complaint) whether or not they have SMJ.
Efficiency argument
o Opponents say it doesnt funnel federal issues to federal court also hard to apply for
declaratory judgments
Mottley eventually got back into federal court when SCOTUS reviewed it but this was through 1257,

not 1331.
o 1257 allows for appellate jurisdiction over state court judgments in which a federal statute or
constitutional provision is drawn in question

Well-pleaded complaint rule is solely an interpretation of 1331, not Constitution

Just like Complete Diversity rule for 1332 Constitution interpreted more
broadly than statute

-Declaratory judgments raise well-pleaded complaint problems. Declaratory judgments are remedies
where the court declares the relative rights between the parties

Skelly Oil v. Phillips Petroleum Declaratory Judgments are proper under Federal Declaratory Judgment

Act ONLY if supported by an independent basis of jurisdiction

Unless a coercive sit would arise under federal law, a declaratory judgment case cannot invoke FQJ
Declaratory Judgment Act was not designed to be a loophole to well-pleaded complaint rule

Federal Law

To invoke FQJ, federal issue must be part of a well-pleaded complaint and must also be a sufficiently
central part of the dispute
o Statutory grant is narrower than Constitutional grant which requires that federal law only be an
ingredient in the case
These are cases where courts uphold arising-under jurisdiction where the federal law does not create
the right to sue but the plaintiff, in order to establish her state law claim, must prove a proposition of
federal law.

Grable & Sons v. Darue Engineering (2005)

Grables property was seized by IRS because of back taxes. He had right to redeem property for 180
days. He didnt, so it went to Darue. Grable brought a quiet title action in state court claiming Darues
title was invalid because IRS failed to notify Grable of its seizure in the proper manner. Dartue
removed the case as presenting a federal question because claim depended on interpretation of notice
statute in federal tax law

19

Court then discusses history of similar actions

American Well Works (1916) State trade libel law claim. Holmes - A suit arises under the law that
creates the cause of action

Smith v. KC Title & Trust (1921) Corporate Fund Investment is illegal according to Missouri banking
law because the federal Farm Loan act was unconstitutional

o
o

Looks like American Well Works because its a state claim, no federal cause of action, federal
issue has to be raised to support the claim
Nevertheless, court says they have SMJ because the case directly involved the construction of a
federal act and the Constitution

Too many federal laws that embed themselves in state statutes that not giving SMJ
would be funneling too many federal issues to state courts

Moore (1934) State statute incorporated part of Federal Safety Appliance Act

Court directly contradicts Smith as the court did not grand FQJ, saying FSAA was not sufficient
in State law

In Grable, the claim is Quiet Title and the Federal issue is the tax statute providing for certain kinds of
notice court takes cert to decide circuit split based on Merrell Dow (1986)

Merrell Dow Claim was negligence per se; federal issue was mislabeling in FDCA Court said (5:4) No
FQJ because FDCA did not create a private cause of action. The tort law gave cause of action and we
combine it with federal statute to get negligence per se. Theyre interpreting it as a matter of law then
applying it to the facts of the case. No enforcement because theres no private cause of action

Court says if no private cause of action, no FQJ. Courts are then split as to whether Merrell
Dow is dispositive or only a factor in evaluating FQJ

Back to Grable, courts have been reading Merrell Dow too broadly but we still want to be careful with
what gets into federal court.

Rule: Does a state law claim necessarily raise a disputed and substantial federal issue that
does not disturb federal/state responsibilities

Necessarily

Disputed
Substantial (Factors: Did
Congress create a private cause
of action? Does it go to
government interest)?
Federal/State Responsibility
(Did Congress intend for this
kind of issue to be funneled into
federal court?)

Grable
Notice from tax statute is
dispositive issue
Dispute as to federal law
violation
Tax laws are important to
national interest, notice is
important when seizing property

Merrell Dow
There were other grounds
besides FDCA to show company
was negligent
Dispute as to federal law
violation
FDCA is not as important to the
prevailing national interest as
tax laws

Quiet Title claims dont funnel

cases into federal court as much
as negligence claims

If this were a federal question,

many more negligence matters
would funnel into federal court

20

Thomas in a concurring opinion says jurisdictional rules should be more clear and here they are not.
Hed be willing to look more expressly at the Holmes rule in American Well Works

Removal

When a case is filed, P decides where to file it

Removal and Remand are first exceptions to the rule that the case stays where the P files it
o Removal is whether D has a right to remove the case from state to federal court

D doesnt ask to remove, they just remove. If its improper, federal court remands the case to state

court
All Ds must agree to remove. Applies only to Ds who have been served with process in the state case
General Rule - Removal if case invokes Federal SMJ. Exception You cannot remove a diversity case if
any defendant is a citizen of the forum
o If its FQJ though, youre fine. It can be removed
o For a hybrid case (FQJ and Diversity), the in state defendant limitation is only for pure diversity
cases so a hybrid case IS removable even by a defendant who is a citizen of the forum
Venue Provision You can only remove to federal district that embraces the state court where it sits
When removing:
o (1) look if the claim presents diversity or federal question SMJ

1441 Action in which district courts of US have original jurisdiction

o (2) Timing

1446(b) Defendant has 30 days to remove after theyre serviced with process that
case can be removed

Time doesnt start until service is effected

o (3) Where to remove?

1441(a) Removed by D to district court for the district and division embracing the
place where such action is pending

You cant remove to wherever you want this is the best the system can do to

keep Ps prerogative
You can only remove for diversity if theres no in-state bias - 1441(b) Removal only if none of
the defendants are citizens of the state in which the action is brought
For remanding - 1447(c) 30 days for procedural problems to remand back to state court so a case
doesnt process too far along in federal court
o If its LACK of SMJ then it can be remanded whenever
o Remand is only after the case has been removed. You cant remand if you start in federal
court!
Court has some discretion when complaints are amended if joinder would destroy diversity/SMJ 1447(e) Court may deny joinder or permit joinder and remand to state courts
o Courts will look to see if its a state law claim (maybe state has more of an interest)
o

Theyll see how relevant the party to be joined is to the claim. If its just to defeat diversity

then the relationship of both defendants to the claim should be looked at

How far along is the case? Timing is an issue

21

Plaintiffs cannot remove, only defendants can

P may try to thwart removal by saying her claim isnt above 75K. Federal court must assess situation
as it existed at removal. If original claim was worth more than 75K, removal was proper. P cant
defeat jurisdiction by scaling back the claim

In WWVW, Seaway and WWVW challenged PJ because Audi was paying and wanted to get WWVW and
Seaway out of the case to remove it to federal court
o This worked in 1980 but would not now because 1446(b) was amended in 1988 to prohibit
removal on the basis of diversity jurisdiction than 1 year after commencement of the action.

Caterpillar v. Lewis (1996)

Lewis (KY) sues Caterpillar (DE/IL) and Whayne (KY) for state claims in state court. Liberty Mutual
(MA) joins and also sues defendants
After Lewis settles with Whayne, Caterpillar seeks removal
o Lewis lawyers should have waited past the one year mark before settling
Lewis files motion to remand because Liberty still has their claim against Whayne
o SCOTUS will not address whether or not complete diversity requires looking at All Ps and All Ds
or just who has claims against one another
Court doesnt remand and defendant wins. Lewis appeals
SCOTUS said that since there was diversity at the time of judgment, the judgment can stand

Court dismisses Grubbs and Finn Different because in those cases defendant was appealing

saying they removed it incorrectly; here the plaintiff remanded it.

Once a diversity case has been tried in federal court, considerations of finality, efficiency, and economy
become overwhelming.
o Requiring dismissal after years of litigation would be a wasteful burden
o Jurisdictional defect was remedied before trial and to wipe out jurisdiction would pose an
exorbitant cost
o Classic Efficiency vs. fairness SCOTUS chose efficiency
When court denied remand, Lewis didnt appeal right away because basic appellate rule states you
need a final judgment to appeal. Denying a remand motion is the classic non-final judgment
In DICTA After removal, Caterpillar brings a claim against Wilson (KY) which is fine because once SMJ
is established between P and D, questions concerning impleader are whether there is jurisdiction
between defendant and third party defendant
o Court doesnt want Ps to play the game of when they join to determine when there is SMJ and
when theres not. We dont want Ps to avoid 1332

22

V: Venue and Transfer

Venue determines where within a court system a case can be brought. Primarily a matter of
convenience and efficiency
o Determined by statute no Constitutional Component
o PJ says state has authority over you venue allows you to pick where within the state

Venue & Transfer

Venue

Both PJ and Venue restrictions exist side by side in Federal Court and both must be met

94 Federal Districts all within state boundaries except for D. Wyo which has parts of Yellowstone in ID
and MT

Federal General Venue Statute 28 USC 1391

o Broken down into (a) Diversity of Citizenship ONLY, (b) non-diversity

Qualifies (a) and (b) with except as provided by law because there are specific statutes
based on certain issues

You can sue in any district where defendant resides, if all reside in same state.
Meaning if its corporate (Inc: NY and PPOB NJ) and individual (NY) defendants, NJ is
proper venue since they both reside in same state (NY) BUT its unlikely court will
have PJ over the individual defendant in NJ

(c) defines corporate defendant residence any district in which it is subject to PJ at the time
the action is commenced.

No provision for individual defendants

o
o

This is applied to non-incorporated associations

Courts hold that resides is synonymous with domicile for venue purposes
Residence is for Venue, Citizenship is for SMJ

Main difference between (a) and (b) is fallback provision of (3) not known why Congress

separated diversity and non-diversity matters

Maybe (b)(3) applies only where defendant is physically present and provision cannot
be used where D is absent but otherwise subject to jurisdiction on basis of his contacts

o
o

Maybe (a)(3) excludes cases where the sole basis for jurisdiction is in-state service

(like Burnham) because in such a case the defendant is not subject to PJ at the time
the action is commenced (complaint filed)
1391 not for removed cases because it can only be removed to the federal court embracing
the place where such an action is pending
(d) An alien can be sued in any district.

It doesnt matter for venue purposes if he was admitted for permanent residence
(1332(a)-holding youre deemed a citizen of the state where your domiciled) because
venue is about convenience, not out-of-state bias rationale that we have for PJ

Bates v. C & S Adjusters, Inc. (2d Cir. 1992)

23

Bates incurred debt while a resident of W.D. Penn, creditor also had its PPOB there. Bates moved to NY
and when C & S mailed a collection notice to him, USPS fwd it to his new address in NY. Bates alleges
violations of the Fair Debt Collection Practices act and commenced the action in W.D.N.Y.
Issue is whether venue exists in a district in which the debtor resides and to which a bill collectors
demand for payment was forwarded
1391(b)(2) says an action can be brought in a judicial district in which a substantial part of the events
giving rise to the claim occurred
Court says venue proper in W.D.N.Y
o This isnt about purposeful availment (PJ), its about venue!
o Amendment used to say where claim arose. Now its where things happened there can be
more than one venue
Collection agency sends letters so they will be received. Fair Debt Collections Practices Act is designed
to protect consumers from abusive debt practices. Harm is felt when you receive the letter, which was
done in W.D.N.Y.
o C & S could have said DO NOT FORWARD on envelope

Under courts rationale, if Bates got the letter in NY and brought it with him on a trip to California,

venue in California might be appropriate, but it certainly wouldnt be convenient

Transfer

Removal is change of forum from state to federal court

Transfer is moving to a more geographically convenient location

You can only remand a case from federal to state court if it started in state court. If theres no SMJ,
case can be dismissed

A state court that concludes the action before it ought to be litigated in another state cannot transfer
the case but can dismiss it under forum non conveniens

1404, 1406 authorize transfer from one federal district to another federal courts do this, state
courts cant transfer to other states
o 1404 Proper Venue
o 1406 Transferor Court is an improper venue

1404(a), 1406 (a) allow transfer to any district where the suit might have been brought
where venue and PJ would be proper, not merely what defendant consents to

Good way to test transfer and venue/PJ

Goldlawr If a court lacks PJ and Venue, it can still transfer so as to remove any

obstacles to adjudication
Forum selection clauses are NOT dispositive of where to transfer a case
Choice of Law for a Federal Court If theres no federal statute on point, apply the state law of the
state in which the court sits

When a case is transferred under 1404(a), transfer is simply a change in courtrooms and
should not change the law applied. Transferor court law should still apply

If the law changed, defendants might use this to their advantage

24

o Doesnt apply to 1406 since venue wasnt proper to begin with

1404(a) says in deciding whether to transfer, court should consider convenience of parties/witnesses
and interest of justice.
o District court has wide distraction whether to grant a change of venue

Forum Non Conveniens

Different from transfer. This is where court dismisses because theres another court thats the center of
gravity
o Dismiss because transfer is legally impossible (in a different judicial sysyem)

Piper Aircraft Co. v. Reyno (1981)

(1) Court appointed adminstratix (Reyno) brings suit in California state court for Scottish citizens
against US Manufacturers Piper (PA) and Hartzell (Ohio). She files in US because strict liability laws
are more favorable to her than Scottish laws

(2) Piper removed to Federal Court (C.D. Cal). Hartzell tried to dismiss which court technically granted
but decided not to because theyre amenable to process in PA, where they can be served with process

(3) Piper then transfers to M.D. PA under 1404(a) for convenience of parties/witnesses

o M.D. PA is more efficient because now Hartzell can come back in, Piper and witnesses are in PA
Choice of Law CA uses different analysis than PA.

CA uses governmental interests test If its CA choice of law, you apply PA substantive law

PA uses significant contacts test If its PA choice of law, you apply Scottish substantive law

Plaintiff deliberately chose to file in CA so as to get their choice of law and thus, US law
When transferring a case, CA choice of law still governs (= PA substantive law). If you start in
the wrong place, choice of law rules do NOT follow you

For Hartzell, CA choice of law doesnt follow because their transfer is like 1406 where
original forum was wrong they get PA Choice of Law = Scottish substantive law

This allows forum shopping provided forum is proper to being with

Convenience issue comes into play for Forum Non Conveniens because theres another case going on in
Scotland against the pilot
o Defendants could have raised this before transferring but they didnt because the analysis
changes. In CA, Scottish law wouldnt have applied so its less confusing and the court may
say PA is a convenient forum
o
o

First question asked in FNC analysis is Is there an alternative forum? Forum must provide
a remedy doesnt have to be the best remedy

If it doesnt provide a remedy, then this may have substantial weight to keep case in
forum

(4) Dismissed under Forum Non Conveniens

25

Appellate court reversed dismissal because they said whenever alternative law is less favorable
to plaintiff, dismissal is not appropriate

FNC must retain flexibility as each case turns on its facts it cant just be inconvenient
because foreign law is unfavorable to P
SCOTUS rejects that because if so, every foreign P would try to have the case heard in US

FNC Doctrine is court made law! Before 1404, 1406, there was no transfer. Because courts
couldnt transfer, theyd dismiss if it made no sense for them to have the case. Now that we have
transfer, FNC is only used if case belongs in front of a different sovereign

Gilbert Analysis When an alternative forum has jurisdiction and [Private factors] when trial in
chosen forum would be oppressive to defendant over convenience to plaintiff OR [Public factors] when
chosen forum is inappropriate because of courts admin/legal problems, court can dismiss the case

Private Factors (1) Witnesses/evidence in Scotland, (2) Joinder efficient to have all
defendants in one case in Scotland and more fair because defendants cant implead third-party
Scottish defendants here and we dont want inconsistent judgments , (3) Plaintiffs are actually
Scottish citizens

Public Factors (1) PA law applies to Piper, Scottish to Hartzell = confusing for jury/court, (2)

Scottish interest in litigating case, (3) Citizens time and PA jury means costs with US and
citizens
Courts have a lot of leeway to settle up with defendants theyll tell them well dismiss case if you
send witnesses/documents to Scotland and waive Statute of Limitations
US is so attractive to foreign plaintiffs because: (1) 44 states offer strict liability, (2) P gets 50
jurisdictions to chose from with their own choice of law rules, (3) Jury trials, (4) Contingent attorneys
fees and losers dont pay winners attorneys fees, (5) Extensive discovery

Raising Jurisdictional Challenges

Courts impose strict limits as to how and when PJ or venue defense can be raised
SMJ can NEVER be waived
Two ways to challenge PJ:
o Special appearance appearing just to challenge PJ
o Rule 12 No defense or objection is waived by joining it with one or more other defenses or
objections in a responsive pleading/motion

Some states allow Limited Appearance to challenge in rem and QIR appear without facing liability

beyond the value of the attached property

Rule 12(b) permits D to raise any of seven defenses in responsive pleading or by motion
o Pleading (Answer) Sets forth factual and legal contentions of parties
o Motions asking the court to order something now
FNC is NOT raised under 12(b)(3) and thus is not waived if you dont assert it in first Rule 12 response.
FNC dismissal is not based upon impropriety of venue in original forum
Youd file a motion first because to file an answer is more timely/costly if you know theres no PJ,
youd want to motion for it and get rid of it right away
o Also, it gives defendant more time

A 12(e) motion for more definite statement gives P time to amend complaint then D has 14
days to respond (12(a)(4)(B))

26

Rule 12 Exercises

Motion must be made before pleading. Once you file an answer, there are no more 12(b) motions to
make

12(b)(2)-(5) motions need to be moved on before an answer or brought up in an answer within

21 days you effectively waive them (12(h)(1)) efficiency, fairness, and accuracy argument
theyre wrong from outset or never
You waive defense when you fail to include it in a responsive pleading or in amendment allowed by
15(a)(1) allows amendment 21 days after service
You cant amend a motion, you can amend pleadings

If you file a 12(e) motion for a more definite statement, the clock doesnt start anew Rule 12(g)(2)

still applies A party that makes a motion under Rule 12 must not make another motion under this
rule raising a defense that was available to the party

When you file a 12(e) motion, the 12(b)(2) motion was still available even if complaint is

vague, best bet is to throw all available motions into one

You can bring a transfer of venue 1404 then seek lack of PJ (b)(2), but you still have 21 days to file, it
doesnt extend time limit
o If it was a 1406 transfer for improper venue, thats essentially the same thing as 12(b)(3)
motion and courts would interpret them as same thing

12(h)(3) is opposite from 12(h)(1) you NEVER waive right to challenge SMJ

12(h)(2) is for the other motions 12(b)(6), (7) once trials over, youve lost opportunity to raise them
Direct and Collateral Attacks on PJ

Direct Attack You make an appearance in foreign court to object to PJ

o
o

Pro: If theres no PJ, case dismissed. If not, you can always challenge case on its merits
Con: Lawyer has to learn foreign law fast, if you lose you stay for whole trial

If you lose direct attack, most courts do NOT allow interrogatory appeal, only allow appellate
review after judgment (exceptions in WWVW, Asahi, Burnham)

Collateral Attack You dont challenge directly so foreign court imposes a default judgment on you.

When P wants to enforce judgment, you argue that foreign judgment isnt entitled to full faith and
credit because original court lacked PJ
o Pro: Litigate at home, no travel costs
o Con: P may enforce anywhere you have property, you can only challenge jurisdiction so if you
lose, you cant challenge case on the merits
Decision to attack directly or collaterally is a strategic decision

If a client has a weak case youd challenge collaterally because youre going to lose anyway,
you might as well minimize costs and lose at home

If you have a strong case youd challenge directly because if you lose PJ, you can still fight
case on its merits

Baldwin v. Iowa State Traveling Mens Association (1931)

Case was decided before FRCP

27

Baldwin sued D in Missouri, D directly challenges PJ saying they have no presence in Missouri and
person served was not an agent for service. Court refused to dismiss winds up in a default judgment
o They originally challenged service then challenged PJ this wouldnt be allowed under FRCP
since they would have filed a 12(b)(4) motion

Baldwin then moved to enforce judgment in Iowa. D asserted same PJ defense and court ruled for
defendant which was affirmed by Circuit Court

Baldwin objects to collateral attack since it was a retrial of issue from first suit

If you disagree with courts determination of PJ after a direct attack, you appeal it, not challenge it

collaterally; OR dont challenge directly and raise it collaterally its one or the other

Note: the amount youd get in a default judgment is the amount alleged in Rule 8(a)(3)
Challenging SMJ

Some parties raise SMJ challenges strategically P if the lose on the merits, D after state Statute of
Limitations runs

You cant raise lack of SMJ in a collateral suit courts have jurisdiction to decide their own jurisdiction

28

VI. Pleadings & Judgments Based on the Pleadings

Pleadings are documents filed by litigants, setting forth claims/defenses

Response to pleading is an answer

Functions of pleadings: (1) Puts parties on notice; (2) stating facts each party believes it can prove;

(3) narrowing scope of issues at trial; (4) providing a quick method for resolving bad claims/defenses
Pleading requirements are a gatekeeper to judicial machinery
Here were focused on 8(a)(2) A short and plain statement of claim showing that pleader is entitled
to relief
We have notice pleading. Before:
o Common Law Pleading Writs back and forth no discovery. If wrong writ then case gone too
procedural
o Code development of facts at discovery, pleading of facts
o FRCP What we have now have the law right and the facts right they say short and
plain statement of claim

The Complaint

Rule 8(a) (1) Proper grounds for jurisdiction

o (3) relief sought Demand doesnt limit plaintiffs recovery and you can list amount to be
shown at trial

This is different from amount in controversy requirement for diversity SMJ you can
say 75K+ for SMJ and amount to be shown at trial in pleading

There can be equitable relief like injunction, special performance

Form Rule 10
Rule 8(a)(2) Short and Plain Statement of the claim showing that pleader is entitled to relief
o Your complaint must be legally and factually sufficient to survive 12(b)(6) motion for failure to
state a claim
Legal Sufficiency Does plaintiff have legal right to state a claim (missing an element)
o
o

If everything P said is true, would law provide remedy? If no, case it usually dismissed without
prejudice (you can amend it)
A lawyer suing for loss of consortium for unmarried lesbians may do this intentionally then
appeal the dismissal saying it should be extended to lesbians
If pleadings show no factual dispute, party could move for summary judgment and go beyond

pleadings to look at evidence (12(d) motion)

Rationale is that discovery is for fact finding. If you required facts up front, why bother having
discovery

29

Factual Sufficiency Biggest gap between Code and FRCP Pleading sufficient detail
o

Dioguardi v. Durning (2d Cir. 1944)

Code required stating of ultimate facts but not in too much detail (evidence) or to little detail
(conclusions of law).

Precedents were available in either direction, making a lawyers job a no-win

Federal Rules - 8(a)(2) avoids facts altogether.

Italian immigrant disclosed claims which are valid. He should have his day in court
P should get lawyer to help him otherwise its likely hell lose on Summary Judgment
Goal is to determine case on merits, not penalize litigants for procedural error
o Affirms notice pleading

Bell Atlantic Corp. v. Twombly (2007)

Twombly wants to show an antitrust violation on the part of local phone carriers. To do so, they must
show conscious parallelism (Ds aware of each others conduct and engaged in activities not to complete
themselves) and an agreement among them they say agreements are to be inferred from conduct

Factual issue What do plaintiffs have to plead? They allege conscious parallelism plus agreement
(upon information and belief) but court says this isnt enough
o 12(b)(6) is to assume all factual allegations are true and are to be read in the light most
favorable to plaintiff
Issue is whats the difference between a factual allegation and a legal conclusion?
o Inference of agreement is a legal conclusion
o Courts would have wanted a phone call, email, something to show conspiracy but this is
tough to do before discovery!
Court differentiates conscious parallelism from simply pleading negligence in a car accident because in
an accident, something is inherently wrong. Conscious parallelism with nothing else is perfectly legal
unless they agreed to do it

Court says draw plausible inferences

This led to much more stringent interpretation of complaints. Courts get to decide if its a factual

allegation or a legal conclusion pro-defendant

Court says you cant just say youll figure out facts in discovery because discovery is costly and may
lead the defendants to settle when they shouldnt have to

This holding is contrary to Conley v. Gibson which said only dismiss complaint when its beyond doubt
that plaintiff can prove no set of facts in support of claim.
o Stevens Dissent says pleadings are for giving notice, goal of pleadings is to keep litigants in
court

Ashcroft v. Iqbal (2009)

Iqbal was Muslim Pakistani who was detained after 9/11. He sued Ashcroft and Mueller saying they
adopted policies designed to get him because of his race, religion

30

Court doesnt accept this pleading they say draw plausible inferences. You can infer FBI arrested
Arabs after 9/11 policy was approved but intent behind it cannot be determined if its to discriminate
or promote national security
o Under higher standards, Ps never get a chance to gather evidence to see if D did something
wrong
o Discovery is expensive you dont get there automatically
Immunity Issue We dont want a flood of claims against law enforcement because we dont want to
interfere with what theyre doing to keep us safe

Immunity from suit Person cant be sued because we dont want them going through
time/expense of discovery when they have a job to do for the common good

Immunity from Liability You can sue but theres a higher standard of liability. No liability for
something thats reasonable given your job because we dont want to second-guess you

This case is immunity from suit because people have jobs to do

P says Twombly was just for antitrust Court says no, its across the board

P says cant you just limit discovery against public officials Court says no
P says intent can always be alleged generally, as in Rule 9(b) Court says no this is an 8(a)(2) case,
not 9(b)
Factual sufficiency is not as cut and dry as legal sufficiency

This gives more discretion to courts = lack of consistency

May not be more efficient because it will result in more 12(b)(6) claims

Accuracy depends on your perspective (P or D)

Rule 9 lists exceptions to liberal pleading of 8(a)(2). Calls for a heightened pleading standard

As courts became more crowded, some courts required higher pleading standard for cases NOT listed in
Rule 9

Leatherman v. Tarrant County (1993)

Issue Whether a federal court may apply a heightened pleading standard in civil rights cases (not

listed in Rule 9(b)) in which you have to plead with particularity

9(b) requires heightened pleading in fraud or mistake and rule meant what it said

This case is about immunity from liability - municipalities can be sued under the statute but it cant be

held liable unless a municipal policy/custom caused the injury

No heightened pleading standard for cases not listed in Rule 9 but the given claim may require more of
a factual allegation, given the nature of the claim

Inconsistent Facts/Alternative Theories

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Rule 8(d)(2) A party may set out 2 or more statements of a claim or defense alternatively or
hypothetically. Pleading is sufficient if any statement/defense is sufficient

McCormick v. Kopmann (Ill. Ct. App. 1959)

Wife brings claim for husbands death. She sues the driver saying he negligently crossed the line and
husband wasnt contributorily negligent. She alternatively sues bar owner saying they got husband
drunk.
o Here they make P plead no contributory negligence. In most cases, contributory negligence is
used as a defense
Driver moves to dismiss saying the complaints are fatally repugnant because if the count against the
bar owner is true, then husband had to have been contributorily negligent
Court says rules allow alterative pleadings because if plaintiff doesnt know what the facts are, this is
how you find out let the jury decide
o Driver (Kopmann) is right in saying complaints are inconsistent but it doesnt matter
o Its allowed when facts are NOT known. Here, the guy who would know is dead
o Rule 11 requires a reasonable inquiry under the circumstances
If the rule didnt allow alternative pleadings, one who tried it would run the risk of having his case
dismissed
Its to plaintiffs advantage to have alternative theories in same case since jury is likely to find its one
or the other. If you break it apart in two cases, you dont have two alternatives and you could get
opposite jury conclusions and P loses both times

Voluntary Dismissal

A plaintiff can dismiss the case via Rule 41(a)

Voluntary dismissals are typically without prejudice, meaning P can refile
Court focuses on a complex set of factors in determining wither to allow P to dismiss without prejudice
prejudice to be suffered by D if P refiles, delay, lack of diligence by the P, extent to which case has
progressed, adequacy of Ps explanation for need to dismiss

Involuntary Dismissal

Involuntary dismissals are usually when P has done something wrong according to the court (Rule
41(b))
o Dismissal under this rule except for lack of jurisdiction, improper venue, or failure to join a
party operates as adjudication on the merits

Adjudication on merits = with prejudice

merits mean we have decided the underlying case party had opportunity to get to
the merits but blew it
o Courts can say its without prejudice but thats no the default rule

Court can order this sua sponte Link v. Wabash R. Co. (1962)

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Case lingered on, Ps attorney didnt appear at pretrial

Issue is then that client is punished Black says its unfair to the client but the majority said he
chose his attorney voluntarily and Plaintiff should know somethings up when the case never
goes to trial
o Lawyers can be reprimanded under Rule 11 and can be sued for malpractice
Rule 83 allows district courts to adopt local rules providing for involuntary dismissal if no action is
shown of record within a stated time judges discretion
o
o

Defendants Options Challenging the Complaint Motions

A rule 12(b)(6) motion tests legal sufficiency and factual sufficiency of claim
Could also bring a motion for Summary Judgment under Rule 56
Also for a more definite statement under Rule 12(e) NOT for failure to state a claim
Move to strike under Rule 12(f) Claim for relief not available as a matter of law
Often times these motions delay the filing of an answer

Defendants Options Responding to the Complaint Answer

Admitting, Denying or saying you dont have enough information to admit/deny every specific claim
(Rule 8(b))
Allegations not denied are deemed to be admitted. If an allegation is denied, its joined and can be
adjudicated
o Doing nothing = admission

Lack of information is deemed a denial (8(b)(5)) only to be done when Defendant doesnt have

access to information/its not public

Rule 8(2)(b) A denial must fairly respond to the substance of the allegation keep it simple
o Dont plead contrary facts and dont say I did not negligently drive my car and ride over the
plaintiff because its implied you drove negligently at another time
Affirmative Defenses

8(c)(1) lists 19 affirmative defenses that are NOT exhaustive

Affirmative Defenses vs. Elements of a Claim

Question becomes how do you determine if an issue falls on Ps burden to plead (in complaint) or on
Ds burden (affirmative defense in answer)

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Burden of proof = burden of pleading, produce, persuade

o Element of cause of action (i.e., for negligence its duty, breach, causation, etc.) is burden for P.
What about Ps contributory negligence?
o Substantive law in each state determines who has the burden of pleading

Rule of Thumb A plaintiff prevails if she shows XYZ, unless ABC

o ifs are Ps claim, unlesses are affirmative defenses with burden on D
o Burden of production is on who needs to come forward with evidence to prove the claim
pleading/production are usually aligned

State legislatures decide these as policy matters factors include (1) who has positive vs. negative
burden/whats the default scenario; (2) burden of pleading vs. burden of production who would be in
better position to allege something given who has that evidence
o For subjective intent like immunity from suit/liability, its Ds burden to plead

Affirmative Defenses vs. Denials

o We allow inconsistent pleadings for answer as well you can both deny and provide an
affirmative defense
o O owns land, D came on land and dug a hole for wiring. P says trespass and alleges all
elements. D denies and at trial wants to provide evidence of an easement between them and
the former landowner
o P objected to Ds evidence at trial because she hadnt seen it in the pleadings
o Appellate court said you should have alleged it as an affirmative defense in answer. When you
fail to allege it, you waive it

Easement injects new matter into the suit and our system is one of notice pleading
you must give notice of defenses
Default Judgments

Failing to respond = default. Default judgment then gets you money/relief based on the default
o Clash of policies between not wanting to subject the P to an unnecessary delay but to decide
cases on merits instead of technicalities

Default; Default Judgment - Rule 55

Court has preference for determining the case on its merits

Most courts dont allow to set aside a default for lawyers negligence unless its gross/egregious
behavior
Summary of Defendants options:

Do nothing (default/default judgment), make a motion, file an answer, counterclaim against P and
cross-claim against other Ds

Amendments

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Rule 15
Rules limit to what degree Ps and Ds can change their pleadings
You can amend within 21 days of serving the pleading; after that you need other partys consent or
courts leave (Given with justice so requires)
o Court looks to undue delay, bad faith/motive, repeated failure to cure deficiencies in previous
amendment, undue prejudice to opposing party
o No time limit but the longer you wait to amend the more prejudice there is for the other party
to claim

Example of Aquaslide where party sued a slide manufacturer who admitted they were the manufacturer

Rule 15(c) Relation Back of Amendments

and denied everything else. After the SoL ran, they discovered they werent the manufacturer and
sought to amend.
o Court looks to why they got it wrong in the first place (due diligence), prejudice re. SoL
ultimately decided to allow the amendment because its hard to see how you can proceed when
youre suing the wrong person
o Standard for allowing amendment is more liberal so theres a bigger burden on the party
opposing amendment
Reasons for amendment Fairness, Accuracy (decision on merits), Efficiency (case will be longer
though)
o We count accuracy/fairness more than efficiency in the first half of the case, then we care
about efficiency/finality more

Statute of Limitations is an Affirmative Defense

Rule 15(c) lists when an amendment to a pleading relates back to the date of the original pleading
(meaning an exception for when SoL runs)
o (1)(B) Amendment asserts claim/defense that arose out of the
conduct/transaction/occurrence in original pleading
o Based on premise of notice pleading that the amendment isnt a big deal because the
defendant has been given all the notice required for SoL
This shows a clash with the SoL SoL embodies a policy that after a certain period, a D should be
assured he wont be liable for something. This goal may be undermined if P is permitted to amend her
complaint to add a new claim after SoL has ran
o Balance between liberal amendment and strict SoL accuracy/fairness vs. efficiency
15(c)(1)(C) allows for amendment when the party changes after the SoL but the original party had
reason to know (like if you sue Fortune magazine but their owner is Time Time knew it should have
been the party so theres no injustice in allowing amendment)

Marsh v. Coleman Company (D. Kan. 1991)

Marsh fired from Coleman company and originally sued for age discrimination, breach of contract. He
seeks to amend complaint to add fraud claim after SoL
The issue is does the fraud claim arise out of the same occurrence firing him

The big picture is notice his amendment is denied because the initial pleading contained things
relating to his firing in 1988. The fraud allegation refers to events in 1984-85

A reasonable person would not have expected that by reading original complaint that promises

made to P three years before would be called into question

No notice for D to prepare things on three year old acts

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Ethical Limitations Rule 11 & Others

Rule 11 lays out your professional responsibility to the court, opponent, other parties raised at any
time for any paper, not just complaint
Each states bar has its own rules of Professional Responsibility
Rule 11 governs in Federal Court; Rules of Professional Responsibility govern wherever you are
Non-frivolous arguments for extending the law are ok you need to have evidentiary support or be
able to get it in discovery
o Rule 11 usually involves monetary sanctions; bar rules could disbar you
Rule 11 existed since 1938 but wasnt paid much attention to; 1983-1993, Rule 11 imposed fairly
harsh sanctions no safe harbor rule and sanctions were mandatory

court, not to opponent

Bridges v. Diesel Service, Inc.

Bridges sued under the ADA. Court dismissed without prejudice for failure to exhaust administrative
remedies since he hadnt filed with EEOC before starting the action. Defendant moves for Rule 11
sanctions

Now, even if theres a violation, the court does not need to impose sanctions. Also, fine paid to

Rule 11 imposes an obligation on counsel to stop, look, and listen. Ps lawyer did not display a

competent level of legal research.

Monetary sanctions not necessary to deter future misconduct as attorney immediately acknowledges its
error and attempted to rectify it

Rule 11 should be reserved for exceptional circumstances where claim is frivolous, here this was just a
procedural mistake
Sanctions

In Bridges Obvious violation because he didnt file with EEOC first (11(b)(2) violation for failure to do
reasonable inquiry before filing complaint)
o No sanctions but this is a published opinion, thats bad news!
o Court errs on side of more limited sanctions

For a party - 11(c)(1) If Rule 11(b) has been violated, court may impose an appropriate sanction on
any attorney, law firm, or party

Sanction party based on which 11(b) violation it is (dont sanction him in Bridges because its a
lawyer error) no monetary sanctions on party for violating 11(b)(2) see 11(c)(5)(A)

For a law firm Absent exceptional circumstances, law firm MUST be held jointly responsible
o Encourages self-policing within a firm
Non-monetary penalties Court could make attorney do work over again without charging client, tell
client your error and certify it to court, require CLE credits
Youd sanction someone more willful than negligent, pattern of conduct vs. isolated incident, how bad
the problem is, experience of attorney

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Safe Harbor Provision (11(c)(2))

Motion for sanctions must be made separately from any other motion and must describe conduct that
violates Rule 11(b). IT must be served but not filed to the court if the challenged paper is withdrawn
or corrected within 21 days after service. If warranted, the court may award to the prevailing party the
reasonable expenses, including attorney's fees, incurred for the motion.
o Serve opposing side, dont file until 21 days after service if opposing party didnt
amend/withdraw
Rector v. Approved Federal Savings Bank

Rector made a frivolous claim. Approved moved for Rule 11 sanctions. At no time did Rector raise the
issue of the 21 day safe harbor provision until it was on appeal

Issue is whether the 21-day safe harbor provision of Rule 11 is a non-waivable rule of jurisdiction
o If its jurisdictional, the court loses its authority over the Rule 11 motion is the safe harbor
provision is NOT followed
o If its not jurisdictional, then its waivable by the defendant
o SMJ is one thing court have independent authority to check out

Court equates Safe Harbor Provision to Statute of Limitations a court still has jurisdiction if P files
claim after SoL. Court only addresses the SoL if D raises it. D can waive it by failing to raise it

Argument is that it IS jurisdictional because you must serve within 21 days before filing. Court says
there are many things that must be done which if not done dont end jurisdiction like PJ since if you
dont raise a PJ defense, you forgo it and essentially consent to jurisdiction of the court
o Its up to non-moving party to raise it at the beginning otherwise its waived. If they bring it up
in court, court must throw the motion out

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VII. Joinder and Supplemental Jurisdiction

Joinder by Plaintiffs

Benefits to Joinder: Private Avoids duplicative litigation and the expenses incurred
o Public Reduced backlog in court systems, avoids inconsistent results
Detriments Packaging makes litigation more complex, can confuse jury, mandatory packaging may
override Ps ability to chose forum
Balance between Ps autonomy and efficiency
Joinder doesnt alter the requirements of PJ, SMJ, and Venue

Every claim in federal court must have a basis of Federal SMJ; claims can get in under

supplemental jurisdiction if they arise out of the same transaction or occurrence

Two factors for getting a claim, party in: (1) Is there a joinder rule (procedural)? If yes, (2)
is it supported by SMJ (jurisdictional)?
o It could have an independent basis of SMJ, if not you need supplemental

Rule 17 deals with Real Party in Interest, Capacity (persons ability to sue/be sued), and Standing (O must
have suffered some injury before he can sue)

Claim

Procedural Aspects

Rule 18 A party asserting a claim may join as many claims as it has against opposing party

Claimant can assert EVERY claim against opponent, even if not transactionally related
18 is permissive but there are preclusion rules that may FORCE to join several assertions of liability in
a single case

18 pertains to a party asserting a claim NOT JUST PLAINTIFFS

Jurisdictional Aspects

18 is the procedural mechanism for getting the claim in. You still need a jurisdictional basis if the claim
does NOT have an independent basis of SMJ (FQ or Diversity)

Notion of supplemental jurisdiction expands courts authority of FQJ/Diversity. If youve already set the

bar so high under the Mottley arising under standard, theres less fear for letting another claim in
o Alternative is splitting up the claims in state/federal court inefficient
Court has the power to keep state claims but it need not exercise it. Doctrine of discretion
o Driving factors should be judicial economy, convenience, fairness
o Reasons to Dismiss:

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If federal claim is dismissed before trial

If case looks like a state case (like in Buffalo Creek where he debates attaching

Navigable Waters Act to get FQJ)

If state law issues predominate
Jury confusion with multiple claims
Dont litigate state claims that are issues of first impression
Reasons to Keep state claim:

State law claim was preempted by the federal statute Congress only wanted federal
law to govern, no state laws to conflict

United Mine Workers v. Gibbs Brennan

Plaintiff is Gibbs (TN) suing UMW (non-incorporated business with citizenship in TN) on a Federal Claim

State law claim is also asserted (Rule 18(a) you can assert as many claims as you want against an
opposing party)

Federal claim is the anchor claim that gets the case into federal court

This is before 1367 so you need a statute to get the claim in. They got it in under pendant
jurisdiction (from Hern)

Constitutional Basis - Court says this is a constitutional case Art. III 2 The judicial power shall
extent to all cases in law and equity arising under this Constitution

Cases not claims. A case can be made of multiple claims

Hern said as long as those grounds are designed to compensate for one actionable wrong, it
constitutes a case

As long as state and federal claims derive from a common nucleus of operative fact (CNOF), it
meets the case requirement of Art. III 2 and courts have power to hear case
o Arising out of the same transaction relates to Common Nucleus of Operative Fact

Statutory Basis - 1331 District courts shall have original jurisdiction of all civil actions arising under

the Constitution
o Like cases, a civil action= more than one claim
Federal anchor claim must be one of substance and viable

Gibbs defines power of the federal courts to hear claims that have no independent statutory basis of
Federal Jurisdiction:
o Federal/non-federal claims must share CNOF
o Claims must be so related that P would ordinarily be expected to try all of them in one
proceeding
o FQ must have substance sufficient to confer SMJ

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o For any case to invoke FQJ, federal issue must be substantial

1367 Supplemental Jurisdiction

(a) gives courts statutory authority to hear supplemental claims to an anchor claim (gives SMJ for
nonfederal claims). Claims are so related to claims in the action within such original jurisdiction

Find anchor claim. If courts have original jurisdiction over that claim (FQ or Diversity), then
theyll have supplemental jurisdiction over all claims that form same case or controversy

(b) is only relevant for cases founded on diversity (1332)

(c) District court has discretion to decide to hear supplemental claims

They use Constitutional language instead of Gibbs CNOF but they mean the same thing

(c)(1) and (c)(4) permit courts discretion in two circumstances never discussed by Gibbs

novel/complex issue of state law and exceptional circumstances

Permissive Party
Procedural Aspects

Rule 18 is joinder of claims Very broad; Rule 20 is Joinder of Parties Not as Broad because the
parties must arise out of same transaction/CNOF
Rule 20 (a)(1) is for joining Plaintiffs; (a)(2) is for joining Defendants
o Rule is permissive, P isnt required to join all the parties
Two ways to get them parties in - (1) Arising out of same transactions, (2) Common question of law or
fact

(2) is the easier prong to meet because if you arise out of the same transaction, its a common

question of law/fact (CQLF is broader than AST

Rule 20 is permissive P might not want to join all possible parties because of jurisdictional problems
or litigation strategy
o Under inclusive joinder of P is likely so the one P can get the first bite at the apple
o Joining all Ds helps the P because multiple Ds are likely to lay blame at each other
If defendants dont like joinder, they have options:
o 20(b) Court may issue orders to protect a party against prejudice that arises from including a
person against whom the party asserts no claim

Protects a party only involved in one aspect of the case

o 42(a) If actions before court involve a common question of law/fact, the court MAY (2)
consolidate the actions

Just Common Question of law or fact (broader), not arising from same transaction

42(b) For convenience, court may order separate trials of one or more separate issues,
claims, etc.

40

You can join for pretrial under joinder rules, this corrects it to allow for separate trials

Theme Joinder rules are broad in allowing joinder of claims (18), less liberal in allowing joining
parties (20), but court has corrective mechanisms (20b, 42)

or sever any claim against a party

Schwartz v. Swan

Dorothy in two car accidents 10 days apart. First one was with her sister-in-law, second one was with
her husband. She wants to sue the drivers from both accidents in one case with her husbands loss of
consortium claim
o Her sister in law filed a separate claim against the drivers from the first accident

Dorothy and her husband clearly meet Rule 20 since his claim is derivative of her injuries

Issue is about suing the both defendants in one case

Court says that the district court abused its discretion by forcing Dorothy to sue parties separately

Rule 21 Misjoinder of parties is NOT fatal. On motion or sua sponte, court can add or drop a party

To separate the cases would require a finding of reasonable medical certainty who caused what injury.

Since you cannot, the parties arise out of the same transaction
o Its a common question of law or fact who was responsible for the injury

Defendants made the sister-in-law consolidate under Rule 42

Jurisdictional Aspects

What about a supplemental state claim against a non-diverse party?

Constitutionally - Constitutes one case because a case can involve additional parties

Statute - 1367(a) Such supplemental jurisdiction shall include claims that involve the joinder or
intervention of additional parties

When claim is a federal question, supplemental jurisdiction is broad as long as other

claims/parties meet the same transaction different when anchor claim is diversity

1367(b) No supplemental jurisdiction when anchor is a diversity claim over a plaintiffs claim against
a person made a party under Rule 14 or 20

Scenarios 1 - P(VA) has a state claim >$75K over D(MD). Can they assert a claim >75K
against D(VA)? NO Inconsistent with 1332

Scenario 2 P(VA) sues D (MD) for >75K. Can P2(VA) sue D(MD) for a claim LESS THAN 75K?

Rule says no jurisdiction for claims by P AGAINST persons made parties through joinder
(D not made a party through joinder), OR over claim by persons joined by P under Rule
19 or 24

Here, P2 was joined by 20

This contradicts the rules of abrogation and SCOTUS saying that each Ps claim must
independently satisfy amount in controversy

For supplemental claims, in Exxon v. Allapattah, the court said Congress didnt remove
this exception so its ok

41

Scenario 3 P3(MD) wants to sue D(MD) for a claim > 75K?

SCOTUS says no Complete Diversity Rule must be treated differently from amount in
controversy requirement
1367 will allow circumvention of amount in controversy requirement but NOT for diversity of
citizenship
o Pro - Amount in Controversy was added for docket control and not in the Constitution
o Con - 1367(a) says in any civil action where district courts would have original jurisdiction
Here, they wouldnt have original jurisdiction

If its a federal claim, then its a 1331 civil action which provides federal anchor

Joinder by Defendants

Rule 13 Counterclaim and Crossclaim

P (MD) sues D (VA) for state claim >75K. Can D join a negligence counterclaim against P?

The claim is allowed and mandatory Rule 13(a) Compulsory Counterclaim

Rule 18 (joinder) is a may rule; Rule 13 is a must rule

o D needs to bring all claims against P but P doesnt need to file all claims against D. This is
untrue due to Claim preclusion which precludes Ps from bringing claims if they arose from from
same transaction
o Rule 18 + Claim Preclusion = Rule 13

Compulsory Counterclaims - Procedural Aspects

Opposing party must state a counterclaim if it arises out of same transaction of the opposing partys
claim

If the D doesnt file an answer, do they waive the right to a counterclaim?

Carteret v. Jackson

Default judgment against D because he didnt file a counterclaim. He now wants to bring up the
counterclaim

D says that since they served no pleading in the first case, the rule never kicked in

Court would agree if pleading had never been required but here it is because the rule says a pleading

must state as a counterclaim any claim thatat the time of its servicethe pleader has against an
opposing party
Default applies to whatever the party should have pleaded
o Rule 13 is to prevent multiple cases

42

o Defendant was supposed to file an answer; its not like he didnt have time to file!
If Ds position were accepted, a default judgment would have no certainty. Court says its different
when theres consent because theres a settlement

Dindo v. Whitney Same Judge as Carteret

Dindos case settled and he never thought of filing a lawsuit.

Does the compulsory counterclaim apply here?
If you settle before an answer has to be filed, then Rule 13 never kicks in and the counterclaim could
be brought

Purpose of rule is to prevent multiple actions and achieve resolution in a single lawsuit of all disputes
arising out of the common matter

If case had been tried, protection of court/parties says there should be no further litigation. If its
settled, court has not been burdened so justice seems obtainable
Two different ways of interpreting Rule 13s fundamental purpose:

Equitable Rule Ds usually waived claim but you look to a cases particular facts to see if it would be
unfair to preclude D from filing a second action (Dindo)
o Court has discretion

Rule of Preclusion More of a bright line rule. If you didnt bring compulsory counterclaim and didnt
answer with time to do so then youve waived right to counterclaim
o Most courts read Rule 13 like this we dont want multiple proceedings (efficiency,
accuracy, consistency)
o Claims that arise from same transaction need to be litigated in the same case

Compulsory Counterclaims - Jurisdictional Aspects

If a claim is a compulsory counterclaim, is 1367(a) always met?

Yes, because if its compulsory that means it arises out of same transaction (AST) which meets
CNOF

CNOF is Constitutional Interpretation so it has the broadest sense. AST is narrower

(rule interpretation)
What if a counterclaim is less than amount in controversy?

1367(b) is for claims by plaintiffs. A counterclaim is a claim by a defendant so its NOT

precluded
Congress is worried about P manipulating 1367 to get around 1332. D has no rule in
manipulating SMJ

Holmes v. Vornado (2002) No diversity. P tries to invoke FQJ but it doesnt arise under. D asserts a
compulsory counterclaim that does invoke FQJ. No SMJ because of well-pleaded complaint rule look
to complaint only, not counterclaim

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Permissive Counterclaims

Rule 13(b) is permissive counterclaims Claims against P that dont Arise from the same transaction
o
o

Similar to the open season rule in 18(a) for allowing claims by P

Allows defendant to err on side of asserting any claim against P in pending case

Jurisdictionally, the permissive counterclaim will not arise out of same transaction. Since CNOF is
broader, you can still get the claim in via 1367(a) if theres no independent basis for SMJ
o Remember to look if theres an independent basis of SMJ for claim!

Jones v. Ford Motor Credit You need a loose factual connection between the claims

Remember You must also have PJ and Venue over the claims

Theres a split in courts on whether PJ should be expanded with respect to additional claims against the
same defendant
o Joinder rules are broad 18 and 13 you could easily have PJ over one claim but not over a
second claim

Pendant PJ Courts suggest there may be an opportunity to massage PJ Doctrine and allow the
assertion of certain types of claims against defendant. No PJ over completely unrelated claim
o Example Claim 1 is a Federal Statute (nationwide service 4k) Claim 2 is a state claim (not
covered by long-arm statute). If its related (Arise out of same transaction) SOME courts will
allow it.

They already have to litigate in that court so theres no hardship in litigating second
case
Crossclaims

Rule 13(g) You can state a claim against a co-party if the claim arises out of the same transaction
that us the subject matter of the original action or of a counterclaim or if claim relates to any property
that is the subject matter of he original action. May include a claim that co-party is/may be liable to
crossclaimant for all/part of claim asserted against the crossclaimant

Theyre always permissive; may instead of compulsory

Example P(VA) sues O(MD) and D(MD) (O and D are joined under Rule 20(a)). O asserts a
PERMISSIVE counterclaim (doesnt AST as original claim) against P. O can then assert a crossclaim
against D if it arises out of the same transaction as her permissive counterclaim
o Once O has a claim against D, they can assert any other claim (Rule 18) against D. D
can/must assert any counterclaim against O (13(a) and (b))
o Once you have that initial link, the sky is the limit in terms of claims

Jurisdictionally
o

Claims between D and O have SMJ under 1367(a) Arise out of same transaction

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Claims exempted under 1367(b) are claims by P and are not exempted here because these

are claims by D
The unrelated Rule 18 claims asserted between Ds are unlikely to meet 1367(a) jurisdiction
Can non-diverse Ps crossclaim one another if theyre both suing the same D who counterclaims one of
them?
o Rule 13(g) says cross-claims between co-parties so procedurally its fine
o

Jurisdictionally, its P1 trying to sue P2. If the anchor claim is diversity, under 1367(b), this is
a claim by a plaintiff against a person made a party under Rule 20 The court would NOT have
jurisdiction

If anchor claim was FQJ, then its fine

Adding Parties

Rule 13(h) allows Ds to add other parties

o Rule says that 19 and 20 govern the addition of a person as a party to a
counterclaim/crossclaim

If D1 has claim against D2 and claim arises from same transaction as D1s counterclaim against P, then
D1 can attach D2 to that counterclaim as long as it meets Rule 20
o It has to relate to crossclaim or counterclaim
13(h) lets you add party when Rule 20 describes relationship to crossclaim or counterclaim that party
has asserted
o You have to make the connection or add the party first, then you can label other claims
Jurisdictionally this is fine because if its diversity, 1367(b) doesnt block it (its a claim by a D, not a
P); also 1367doesnt include 13(h) in its list of claims over which supplemental jurisdiction is
precluded

Party Impleader

This is a method to override the plaintiffs party structure, chosen by them in 20(a)
Rule 13(h) D can only add another party if theyre related to a claim he already has in the case

If D doesnt have one of those claims against an original party, Rule 14 comes in. Adding thirdparty defendants

Narrow, permitting joinder of one who is or may be liable to the defending party for all or part
of the claim against it

Generally for claims for contribution (if state tort law allows it) or indemnification
(relating to K law)

Claims against a third party defendant MUST be derivative of the original claim P has against D

P sues D. D has a right to indemnity for the claim from T so D impleads T. Any judgment for P against
D can be deflected to T. If D could not implead T, D would have to sue T in a separate proceeding

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o Impleader promotes efficiency!

Procedural Aspects
Markvica v. Brodhead-Garrett Co. Difference between contribution and indemnification

Kid got hurt in shop class, they sue the manufacturer. Manufacturer impleads the school for improper
maintenance and inadequate supervision, seeking indemnity

Indemnity Enables one tortfeasor to shift entire burden of judgment to another

o

Usually when one has been required to pay because of a legal relationship (respondeat
superior, vicarious liability) to shift burden to actual culprit)

Contribution Based upon common liability of two or more actors for the same injury. Equalizes
burden on wrongdoers by requiring each to pay his own proportionate share

Court says indemnity will not be allowed when both parties have been negligent

Rule 14(a) permits joinder of a party who is or may be liable to a defending party for all or part of Ps

claim. Where state law creates a right to contribution or indemnity, wrongdoer who has been sued can
implead his co-wrongdoers before P obtains a judgment this speeds up the claim
Rule 14 trumps state law requirement that you wait until D is liable before impleading TPD
o Joint and Several liability is a form of contribution

Once TPD is in the case, they have the right of all those counterclaim, crossclaim rules

Rule 14 is longer than many of the rules but it defines what claims these parties can have with each
other 14(a)(2) explains this

A P asserting a claim against a TBD is called an upsloping 14(a) claim whereas a TPD asserting a claim
against a P is a downsloping 14(a) claim
o Impleader is only the initial joinder of the absent party for indemnity/contribution

Jurisdictional Aspects

Any claim under 14(a) must be supported by an its own basis of SMJ
If theres no independent basis, is there CNOF under 1367(a)?
o Impleader claim requires TBD to be liable to D for Ps claim yes
o Upslopiong/Downsloping claims seem to meet it since they can only be asserted if they AST as
the underlying dispute

Upsloping 14(a) claims raise concerns Kroger (decided before 1367)

46

Owen Equipment v. Kroger (1978)

Krogers widow (Iowa) sued Omaha Power District (Nebraska) alleging negligence when a power line
killed her husband. Case was founded on diversity

OPPD impleads Owen Equipment since their crane hit the power line; OPPD gets SJ on its claim, Kroger

amends complaint to sue Owen. At third day of trial, Owen says their PPOB is in Iowa, destroying
diversity
Kroger couldnt have originally asserted its claim against Owen, they had to wait until OPPB brought
them in to assert their claim.

Dissent thinks this is OK because the P doesnt bring the TPD into the lawsuit so theres no

deliberate circumvention of diversity requirement

Majority says no because you still need independent basis for SMJ

1367 codifies Kroger by denying claims by Ps against parties joinder under Rule 14

Following the dismissal of the case in federal court, Kroger filed in state court and the court ruled that

her claim was NOT barred by the statute of limitations. After Kroger, Congress added 1367(d) which
tolls the statute of limitations while claims are pending in federal court
If Owen brought a claim against Kroger and Kroger compulsory counterclaimed, most courts would still
say this is exempted by jurisdiction because its still a claim by a P against a party joined by Rule 14
(1367(b))
o Some courts say its ok due to last clause of 1367(b)

47

Rules and Statutes

Rule 4 Summons
(a) Contents; Amendments.

(1) Contents. A summons must:

o
o
o
o
o
o
o

(A) name the court and the parties;

(B) be directed to the defendant;
(C) state the name and address of the plaintiffs attorney or if unrepresented
of the plaintiff;
(D) state the time within which the defendant must appear and defend;
(E) notify the defendant that a failure to appear and defend will result in a default
judgment against the defendant for the relief demanded in the complaint;
(F) be signed by the clerk; and
(G) bear the courts seal.

(2) Amendments. The court may permit a summons to be amended.

(b) Issuance.

On or after filing the complaint, the plaintiff may present a summons to the clerk for signature
and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff
for service on the defendant. A summons or a copy of a summons that is addressed to multiple
defendants must be issued for each defendant to be served.

(c) Service.

(1) In General. A summons must be served with a copy of the complaint. The plaintiff is
responsible for having the summons and complaint served within the time allowed by
Rule 4(m) and must furnish the necessary copies to the person who makes service.

(2) By Whom. Any person who is at least 18 years old and not a party may serve a
summons and complaint.

(3) By a Marshal or Someone Specially Appointed. At the plaintiffs request, the

court may order that service be made by a United States marshal or deputy marshal or by
a person specially appointed by the court. The court must so order if the plaintiff is
authorized to proceed in forma pauperis under 28 U.S.C. 1915 or as a seaman under 28
U.S.C. 1916.
(d) Waiving Service.

(1) Requesting a Waiver. An individual, corporation, or association that is subject to

service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving
the summons. The plaintiff may notify such a defendant that an action has been
commenced and request that the defendant waive service of a summons. The notice and
request must:
o (A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, a

managing or general agent, or any other agent authorized by appointment
or by law to
receive service of process;
o (B) name the court where the complaint was filed;

48

o
o
o
o

(C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a

prepaid means for returning the form;
(D) inform the defendant, using text prescribed in Form 5, of the consequences of
waiving and not waiving service;
(E) state the date when the request is sent;
(F) give the defendant a reasonable time of at least 30 days after the request was
sent or at least 60 days if sent to the defendant outside any judicial district of
the United States to return the waiver; and
(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a defendant located within the United States fails, without good
cause, to sign and return a waiver requested by a plaintiff located within the United
States, the court must impose on the defendant:
o (A) the expenses later incurred in making service; and
o (B) the reasonable expenses, including attorneys fees, of any motion required to
collect those service expenses.

(3) Time to Answer After a Waiver. A defendant who, before being served with
process, timely returns a waiver need not serve an answer to the complaint until 60 days
after the request was sent or until 90 days after it was sent to the defendant outside
any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not
required and these rules apply as if a summons and complaint had been served at the
time of filing the waiver.

(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive
any objection to personal jurisdiction or to venue.

(e) Serving an Individual Within a Judicial District of the United States. Unless federal

law provides otherwise, an individual other than a minor, an incompetent person, or a person whose
waiver has been filed may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

o (A) delivering a copy of the summons and of the complaint to the individual
personally;
o (B) leaving a copy of each at the individuals dwelling or usual place of abode with
someone of suitable age and discretion who resides there; or
o (C) delivering a copy of each to an agent authorized by appointment or by law to
receive service of process.

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an

individual - other than a minor, an incompetent person, or a person whose waiver has been filed - may
be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give
notice, such as those authorized by the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents;

49

(2) if there is no internationally agreed means, or if an international agreement allows but

does not specify other means, by a method that is reasonably calculated to give notice:
o (A) as prescribed by the foreign country's law for service in that country in an
action in its courts of general jurisdiction;
o (B) as the foreign authority directs in response to a letter rogatory or letter of
request; or
o (C) unless prohibited by the foreign country's law, by:

(i) delivering a copy of the summons and of the complaint to the individual
personally; or

(ii) using any form of mail that the clerk addresses and sends to the
individual and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders.

(g) Serving a Minor or an Incompetent Person. A minor or an incompetent person in a

judicial district of the United States must be served by following state law for serving a summons or
like process on such a defendant in an action brought in the courts of general jurisdiction of the state
where service is made. A minor or an incompetent person who is not
within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)
(2)(A), (f)(2)(B), or (f)(3).

(h) Serving a Corporation, Partnership, or Association. Unless federal law provides

otherwise or the defendants waiver has been filed, a domestic or foreign corporation, or a partnership
or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States:

o (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
o (B) by delivering a copy of the summons and of the complaint to an officer, a
managing or general agent, or any other agent authorized by appointment or by
law to receive service of process and if the agent is one authorized by statute
and the statute so requires by also mailing a copy of each to the defendant; or

(2) at a place not within any judicial district of the United States, in any manner
prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)
(i).

(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.

(1) United States. To serve the United States, a party must:

o

(A)
(i) deliver a copy of the summons and of the complaint to the United
States attorney for the district where the action is brought or to an
assistant United States attorney or clerical employee whom the United
States attorney designates in a writing filed with the court clerk or

(ii) send a copy of each by registered or certified mail to the civil-process

clerk at the United States attorneys office;
(B) send a copy of each by registered or certified mail to the Attorney General of
the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United
States, send a copy of each by registered or certified mail to the agency or officer.

o
o

50

(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To

serve a United States agency or corporation, or a United States officer or employee sued
only in an official capacity, a party must serve the United States and also send a copy of
the summons and of the complaint by registered or certified mail to the agency,
corporation, officer, or employee.

(3) Officer or Employee Sued Individually. To serve a United States officer or

employee sued in an individual capacity for an act or omission occurring in connection with
duties performed on the United States behalf (whether or not the officer or employee is
also sued in an official capacity), a party must serve the United States and also serve the
officer or employee under Rule 4(e), (f), or (g).

(4) Extending Time. The court must allow a party a reasonable time to cure its failure
to:

(A) serve a person required to be served under Rule 4(i)(2), if the party has
served either the United States attorney or the Attorney General of the United
States; or
o (B) serve the United States under Rule 4(i)(3), if the party has served the United
States officer or employee.
(j) Serving a Foreign, State, or Local Government.
o

(1) Foreign State. A foreign state or its political subdivision, agency, or instrumentality

must be served in accordance with 28 U.S.C. 1608.

(2) State or Local Government. A state, a municipal corporation, or any other
state-created governmental organization that is subject to suit must be served
by:
o (A) delivering a copy of the summons and of the complaint to its chief executive
officer; or
o (B) serving a copy of each in the manner prescribed by that states law for serving
a summons or like process on such a defendant.
(k) Territorial Limits of Effective Service.

(1) In General. Serving a summons or filing a waiver of service establishes personal

jurisdiction over a defendant:
o (A) who is subject to the jurisdiction of a court of general jurisdiction in the state
where the district court is located;

(B) who is a party joined under Rule 14 or 19 and is served within a judicial district

of the United States and not more than 100 miles from where the summons was
issued; or
(C) when authorized by a federal statute.

(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under
federal law, serving a summons or filing a waiver of service establishes personal
jurisdiction over a defendant if:
o (A) the defendant is not subject to jurisdiction in any states courts of general
jurisdiction; and

51

(B) exercising jurisdiction is consistent with the United States Constitution and
laws.
(l) Proving Service.
o

(1) Affidavit Required. Unless service is waived, proof of service must be made to the
court. Except for service by a United States marshal or deputy marshal, proof must be by
the servers affidavit.

(2) Service Outside the United States. Service not within any judicial district of the
United States must be proved as follows:
o (A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention;
or
o (B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or
by other evidence satisfying the court that the summons and complaint were
delivered to the addressee.

(3) Validity of Service; Amending Proof. Failure to prove service does not affect the
validity of service. The court may permit proof of service to be amended.

(m) Time Limit for Service. If a defendant is not served within 120 days after the

complaint is filed, the court on motion or on its own after notice to the plaintiff must dismiss the
action without prejudice against that defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must extend the time for service for an
appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f)
or 4(j)(1).

(n) Asserting Jurisdiction over Property or Assets.

(1) Federal Law. The court may assert jurisdiction over property if authorized by a
federal statute. Notice to claimants of the property must be given as provided in the
statute or by serving a summons under this rule.

(2) State Law. On a showing that personal jurisdiction over a defendant cannot be
obtained in the district where the action is brought by reasonable efforts to serve a
summons under this rule, the court may assert jurisdiction over the defendants assets
found in the district. Jurisdiction is acquired by seizing the assets under the circumstances
and in the manner provided by state law in that district.

28 USC 1332 Diversity of Citizenship; Amount in Controversy

(a) The district courts shall have original jurisdiction of all civil actions where the matter in

controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign state;

(3) citizens of different States and in which citizens or subjects of a foreign state are
additional parties; and

52

(4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a
State or of different States.

For the purposes of this section, section 1335, and section 1441, an alien admitted to the
United States for permanent residence shall be deemed a citizen of the State in which
such alien is domiciled.

(b) Except when express provision therefor is otherwise made in a statute of the United

States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be
entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or
counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and
costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the
plaintiff.

(c) For the purposes of this section and section 1441 of this title

(1) a corporation shall be deemed to be a citizen of any State by which it has been
incorporated and of the State where it has its principal place of business, except that in
any direct action against the insurer of a policy or contract of liability insurance, whether
incorporated or unincorporated, to which action the insured is not joined as a partydefendant, such insurer shall be deemed a citizen of the State of which the insured is a
citizen, as well as of any State by which the insurer has been incorporated and of the
State where it has its principal place of business; and

(2) the legal representative of the estate of a decedent shall be deemed to be a citizen
only of the same State as the decedent, and the legal representative of an infant or
incompetent shall be deemed to be a citizen only of the same State as the infant or
incompetent.

28 USC 1331 - Federal question

The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.

28 U.S.C. 1441. Actions Removable Generally

(a) Any civil action brought in a State court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant or the defendants, to the district court of
the United States for the district and division embracing the place where such action is pending.

(b) Actions arising under shall be removable without regard to citizenship. Any other removal
can occur only if none of the defendants are citizens of the state in which the action is brought

28 U.S.C. 1446(a)(b)(d). Procedure for Removal

(a) Defendant seeking to remove shall file in the district court of the United States for the
district and division within which such action is pending a notice of removal signed pursuant to Rule 11
of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for
removal, together with a copy of all process, pleadings, and orders served upon such defendant or
defendants in such action.

53

(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after

the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting
forth the claim for relief upon which such action or proceeding is based, or within thirty days after the
service of summons upon the defendant if such initial pleading has then been filed in court and is not
required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed

within thirty days after receipt by the defendant, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from which it may first be ascertained that the case
is one which is or has become removable, except that a case may not be removed on the basis of
jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

(d) Promptly after the filing of such notice of removal of a civil action the defendant or
defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice
with the clerk of such State court, which shall effect the removal and the State court shall proceed no
further unless and until the case is remanded.

28 U.S.C. 1447. Procedure After Removal Generally

(a) In any case removed from a State court, the district court may issue all necessary orders

and process to bring before it all proper parties whether served by process issued by the State court
or otherwise.

(b) It may require the removing party to file with its clerk copies of all records and

proceedings in such State court or may cause the same to be brought before it by writ of certiorari
issued to such State court

(c) Motion to remand the case on basis of any defect other than lack of SMJ must be made
within 30 days after filing the notice under 1446(a). If at any time before final judgment it appears
the district court lacked SMJ, the case shall be remanded.

(d) An order remanding a case to the State court from which it was removed is not reviewable
on appeal or otherwise, except an order removed pursuant to 1443

(e) After removal if plaintiff seeks to join additional defendants whose joinder would destroy
SMJ, the court may deny joinder or permit joinder and remand to State court

28 U.S.C. 1448. Process After Removal

In any case removed where one or more of the defendants has not been served with process,
such process or service may be completed or new process issued. This shall not deprive any
defendant upon whom process is served after removal of his right to remand the case

Fed. R. Civ. P. 81 Applicability of the Rules in General; Removed Actions

(c)(2) After removal, repleading is unnecessary unless the court orders it. A defendant who
did not answer before removal must answer or present other defenses or objections under these rules
within the longest of these periods:

(A) 21 days after receiving through service or otherwise a copy of the initial pleading
stating the claim for relief;

(B) 21 days after being served with the summons for an initial pleading on file at the time of
service; or

54

(C) 7 days after the notice of removal is filed.

(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as

1391. Venue generally

otherwise provided by law, be brought only in

(1) a judicial district where any defendant resides, if all defendants reside in the same
State,

(2) a judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the subject of the action is
situated, or

(3) a judicial district in which any defendant is subject to personal jurisdiction at the time
the action is commenced, if there is no district in which the action may otherwise be
brought.

(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may,

except as otherwise provided by law, be brought only in

(1) a judicial district where any defendant resides, if all defendants reside in the same
State,

(2) a judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the subject of the action is
situated, or

(3) a judicial district in which any defendant may be found, if there is no district in which
the action may otherwise be brought.

(c) For purposes of venue under this chapter, a defendant that is a corporation shall be

deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the
action is commenced. In a State which has more than one judicial district and in which a defendant
that is a corporation is subject to personal jurisdiction at the time an action is commenced, such
corporation shall be deemed to reside in any district in that State within which its contacts would be
sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no
such district, the corporation shall be deemed to reside in the district within which it has the most
significant contacts.

(d) An alien may be sued in any district.

(e) A civil action in which a defendant is an officer or employee of the United States or any

agency thereof acting in his official capacity or under color of legal authority, or an agency of the
United States, or the United States, may, except as otherwise provided by law, be brought in any
judicial district in which

(1) a defendant in the action resides,

55

(2) a substantial part of the events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is situated, or

(3) the plaintiff resides if no real property is involved in the action. Additional persons

may be joined as parties to any such action in accordance with the Federal Rules of Civil
Procedure and with such other venue requirements as would be applicable if the United
States or one of its officers, employees, or agencies were not a party.

The summons and complaint in such an action shall be served as provided by the Federal
Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or
agency as required by the rules may be made by certified mail beyond the territorial limits of the
district in which the action is brought.

(f) A civil action against a foreign state as defined in section 1603 (a) of this title may be

brought

(1) in any judicial district in which a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property that is the subject of the action is
situated;

(2) in any judicial district in which the vessel or cargo of a foreign state is situated, if the
claim is asserted under section 1605 (b) of this title;

(3) in any judicial district in which the agency or instrumentality is licensed to do business
or is doing business, if the action is brought against an agency or instrumentality of a
foreign state as defined in section 1603 (b) of this title; or

(4) in the United States District Court for the District of Columbia if the action is brought
against a foreign state or political subdivision thereof.

(g) A civil action in which jurisdiction of the district court is based upon section1369 of this

title may be brought in any district in which any defendant resides or in which a substantial part of the
accident giving rise to the action took place.

1404. Change of venue

(a) For the convenience of parties and witnesses, in the interest of justice, a district court may

transfer any civil action to any other district or division where it might have been brought.

(b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil

nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the
division in which pending to any other division in the same district. Transfer of proceedings in rem
brought by or on behalf of the United States may be transferred under this section without the
consent of the United States where all other parties request transfer.

(c) A district court may order any civil action to be tried at any place within the division in

which it is pending.

56

(d) As used in this section, the term district court includes the District Court of Guam, the

District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the
term district includes the territorial jurisdiction of each such court.

1406. Cure or waiver of defects

(a) The district court of a district in which is filed a case laying venue in the wrong division or

district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought.

(b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter

involving a party who does not interpose timely and sufficient objection to the venue.

(c) As used in this section, the term district court includes the District Court of Guam, the

District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the
term district includes the territorial jurisdiction of each such court.

Rule 12 Defenses and Objections

(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the
time for serving a responsive pleading is as follows:
o (A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

o
o

(ii) if it has timely waived service under Rule 4(d), within 60 days after the

request for a waiver was sent, or within 90 days after it was sent to the
defendant outside any judicial district of the United States.
(B) A party must serve an answer to a counterclaim or crossclaim within 21 days
after being served with the pleading that states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 21 days after being served with
an order to reply, unless the order specifies a different time.

(2) United States and Its Agencies, Officers, or Employees Sued in an Official
Capacity. The United States, a United States agency, or a United States officer or
employee sued only in an official capacity must serve an answer to a complaint,
counterclaim, or crossclaim within 60 days after service on the United States attorney.

(3) United States Officers or Employees Sued in an Individual Capacity. A United

States officer or employee sued in an individual capacity for an act or omission occurring
in connection with duties performed on the United States behalf must serve an answer to
a complaint, counterclaim, or crossclaim within 60 days after service on the officer or
employee or service on the United States attorney, whichever is later.

(4) Effect of a Motion. Unless the court sets a different time, serving a motion under
this rule alters these periods as follows:

57

(A) if the court denies the motion or postpones its disposition until trial, the
responsive pleading must be served within 14 days after notice of the courts
action; or
(B) if the court grants a motion for a more definite statement, the responsive
pleading must be served within 14 days after the more definite statement is
served.

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be

asserted in
by motion:

the responsive pleading if one is required. But a party may assert the following defenses
(1)
(2)
(3)
(4)
(5)
(6)

lack of subject-matter jurisdiction;

lack of personal jurisdiction;
improper venue;
insufficient process;
insufficient service of process;
failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

A motion asserting any of these defenses must be made before pleading if a responsive
pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive
pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is
waived by joining it with one or more other defenses or objections in a responsive pleading or in a
motion.

(c) Motion for Judgment on the Pleadings. After the pleadings are closed but early

enough not to delay trial a party may move for judgment on the pleadings.

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule

12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.

(e) Motion For a More Definite Statement. A party may move for a more definite

statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous
that the party cannot reasonably prepare a response. The motion must be made before filing a
responsive pleading and must point out the defects complained of and the details desired. If the court
orders a more definite statement and the order is not obeyed within 14 days after notice of the order
or within the time the court sets, the court may strike the pleading or issue any other appropriate
order.

(f) Motion To Strike. The court may strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is
not allowed, within 21 days after being served with the pleading.

(g) Joining Motions.

(1) Right to Join. A motion under this rule may be joined with any other motion allowed
by this rule.

58

(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party

that makes a motion under this rule must not make another motion under this rule raising
a defense or objection that was available to the party but omitted from its earlier motion.
(h) Waiving and Preserving Certain Defenses.

(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5)
by:
o
o

(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or

(B) failing to either:

(i) make it by motion under this rule; or

(ii) include it in a responsive pleading or in an amendment allowed byRule

15(a)(1) as a matter of course.

(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to
join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:

(A) in any pleading allowed or ordered under Rule 7(a);

o
o

(B) by a motion under Rule 12(c); or

(C) at trial.

(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.

(i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)-(7)

whether made in a pleading or by motion and a motion under Rule 12(c) must be heard and
decided before trial unless the court orders a deferral until trial.

Rule 7. Pleadings Allowed; Form of Motions and Other Papers

(a) Pleadings. Only these pleadings are allowed:

(1) a complaint;

(2) an answer to a complaint;

(3) an answer to a counterclaim designated as a counterclaim;

(4) an answer to a crossclaim;

(5) a third-party complaint;

(6) an answer to a third-party complaint; and

(7) if the court orders one, a reply to an answer.

(b) Motions and Other Papers

(1) In General. A request for a court order must be made by motion. The motion must:
o
o
o

(A) be in writing unless made during a hearing or trial;

(B) state with particularity the grounds for seeking the order; and
(C) state the relief sought.

(2) Form. The rules governing captions and other matters of form in pleadings apply to
motions and other papers.

59

Rule 8. General Rules of Pleading

(a) Claims for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the courts jurisdiction, unless the court
already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief;
and

(3) a demand for the relief sought, which may include relief in the alternative or different
types of relief.
(b) Defenses; Admissions and Denials.

(1) In General. In responding to a pleading, a party must:

o
o

(A) state in short and plain terms its defenses to each claim asserted against it;
and
(B) admit or deny the allegations asserted against it by an opposing party.

(2) Denials Responding to the Substance. A denial must fairly respond to the
substance of the allegation.

(3) General and Specific Denials. A party that intends in good faith to deny all the
allegations of a pleading including the jurisdictional grounds may do so by a general
denial. A party that does not intend to deny all the allegations must either specifically deny
designated allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part
of an allegation must admit the part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information

sufficient to form a belief about the truth of an allegation must so state, and the statement
has the effect of a denial.

(6) Effect of Failing to Deny. An allegation other than one relating to the amount of

damages is admitted if a responsive pleading is required and the allegation is not

denied. If a
responsive pleading is not required, an allegation is considered denied or avoided.
(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any

avoidance or affirmative defense, including:
o accord and satisfaction;
o arbitration and award;
o assumption of risk;
o contributory negligence;
o discharge in bankruptcy;
o duress;
o estoppel;
o failure of consideration;
o fraud;

60

o
o
o
o
o
o
o
o
o
o

illegality;
injury by fellow servant;
laches;
license;
payment;
release;
res judicata;
statute of frauds;
statute of limitations; and
waiver.

(2) Mistaken Designation. If a party mistakenly designates a defense as a

counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the
pleading as though it were correctly designated, and may impose terms for doing so.
(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.

(1) In General. Each allegation must be simple, concise, and direct. No technical form is
required.

(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more
statements of a claim or defense alternatively or hypothetically, either in a single count or
defense or in separate ones. If a party makes alternative statements, the pleading is
sufficient if any one of them is sufficient.

(3) Inconsistent Claims or Defenses. A party may state as many separate claims or
defenses as it has, regardless of consistency.

(e) Construing Pleadings. Pleadings must be construed so as to do justice.

Rule 9. Pleading Special Matters

(b) Fraud or Mistake; Condition of Mind. In alleging fraud or mistake, a party must state

with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person's mind may be alleged generally.

Rule 10. Form of Pleadings

(a) Caption; Names of Parties. Every pleading must have a caption with the court's name,

a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties;
the title of other pleadings, after naming the first party on each side, may refer generally to other
parties.

(b) Paragraphs; Separate Statements. A party must state its claims or defenses in

numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later
pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity,
each claim founded on a separate transaction or occurrence and each defense other than a denial
must be stated in a separate count or defense.

61

(c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by

reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all purposes.

15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:
o (A) 21 days after serving it, or
o (B) if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with
the opposing party's written consent or the court's leave. The court should freely give
leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to an

amended pleading must be made within the time remaining to respond to the original
pleading or within 14 days after service of the amended pleading, whichever is later.
(b) Amendments During and After Trial.

(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not
within the issues raised in the pleadings, the court may permit the pleadings to be
amended. The court should freely permit an amendment when doing so will aid in
presenting the merits and the objecting party fails to satisfy the court that the evidence
would prejudice that party's action or defense on the merits. The court may grant a
continuance to enable the objecting party to meet the evidence.

(2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by

the parties' express or implied consent, it must be treated in all respects as if raised in the
pleadings. A party may move at any time, even after judgment to amend the
pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to
amend does not affect the result of the trial of that issue.
(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to

the date of the original pleading when:
o (A) the law that provides the applicable statute of limitations allows relation back;
o (B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out or attempted to be set out in the original
pleading; or

(C) the amendment changes the party or the naming of the party against whom a
claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) for serving the summons and complaint, the party to be brought in
by amendment:

62

(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party's identity.

(2) Notice to the United States. When the United States or a United States officer or
agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)
(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to
the United States attorney or the United States attorney's designee, to the Attorney
General of the United States, or to the officer or agency.

(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just

terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented. The court may permit
supplementation even though the original pleading is defective in stating a claim or defense. The court
may order that the opposing party plead to the supplemental pleading within a specified time.

Rule 41. Dismissal of Actions

(a) Voluntary Dismissal.

(1) By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2 and 66and any
applicable federal statute, the plaintiff may dismiss an action without a court order
by filing:

(i) a notice of dismissal before the opposing party serves either an answer
or a motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have appeared.

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is
without prejudice. But if the plaintiff previously dismissed any federal- or statecourt action based on or including the same claim, a notice of dismissal operates
as an adjudication on the merits.

(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be
dismissed at the plaintiff's request only by court order, on terms that the court considers
proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's
motion to dismiss, the action may be dismissed over the defendant's objection only if the
counterclaim can remain pending for independent adjudication. Unless the order states
otherwise, a dismissal under this paragraph (2) is without prejudice.

(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these

rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under
this rule except one for lack of jurisdiction, improper venue, or failure to join a party under Rule
19 operates as an adjudication on the merits.

(c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a

dismissal of any counterclaim, crossclaim, or third-party claim. A claimant's voluntary dismissal under
Rule 41(a)(1)(A)(i) must be made:

63

(1) before a responsive pleading is served; or

(2) if there is no responsive pleading, before evidence is introduced at a hearing or trial.

(d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an

action in any court files an action based on or including the same claim against the same defendant,
the court:

(1) may order the plaintiff to pay all or part of the costs of that previous action; and

(2) may stay the proceedings until the plaintiff has complied.

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Freer Lecture

There is no right answer to Personal Jurisdiction! You need an analytical framework

I. Personal Jurisdiction (PJ)
II. Notice
III. Subject Matter Jurisdiction (SMJ)
IV. Venue
I-IV Choosing a Forum, are we in the right court?
V. Erie Doctrine What law we apply
VI. Pleadings claims, defenses that start case
VII. Joinder how big the case gets
I. Personal Jurisdiction
In what state(s) can the plaintiff sue the defendant(s)? Federal/state doesnt matter!

Court can have power over the defendant or over her property
Three kinds of PJ: In personam, In Rem, Quasi in Rem (QIR)

In Personam Power over defendant because of connection with forum

In Rem/QIR Power over defendants property

Ultimate limit of having power is Due Process (Constitutional Requirement), there must also

be a statute that allows jurisdiction on the case (often a long-arm statute)

First assess whether a statute allows for PJ. If yes, then do Due Process analysis

A. In Personam Jurisdiction

General or Specific General means defendant can be sued in this forum on a claim that

arose ANYWHERE; Specific means defendant is sued for a claim that arose in the forum
1. Constitutional Limit

65

The law today is an amalgam of all the previous cases, starting with Pennoyer

Pennoyer v. Neff (1878) Court has power over everything, everybody in the state.
o

Gives us four traditional bases for in personam jurisdiction: (1) served with
process in the forum (presence = General Jurisdiction); (2) defendants agent is
served with process in the forum; (3) defendant is domiciled in the forum (general
jurisdiction as well); (4) consent you can always consent to jurisdiction
This makes it very tough to go after a nonresident, so court expanded the
traditional bases

Hess v. Pawloski (1927) Defendant from PA, drives to MA and gets into a car accident.
Massachusetts had a statute that said if you drive a car in our state and youre in a wreck,
you have appointed a state officer as an agent for service of process

This is consistent with Pennoyer because we have service of process in the forum

o
o

on the defendants agent

This opinion expands consent to implied consent
Every state has a nonresident motor vehicle statute

International Shoe (1945) Court has jurisdiction if defendant has such minimum
contacts with a forum so that exercise of jurisdiction does not offend traditional notions of
fair play and substantial justice
o This is very flexible and had led to an expansion of jurisdiction
o By this time, its clear we can serve process on the defendant outside of the forum
you do not have to serve inside of the forum
o Two parts minimum contacts and fairness (fair play/reasonableness)

Nowhere does it overrule Pennoyer! Court says this is the test ONLY if the
defendant is not present it implies the 4 traditional bases are correct

McGee (1957) TX insurance company sold one contract in CA. Does CA have jurisdiction
even if there was just one contact? Yes!
o Defendant solicited that contract
o Relatedness Plaintiffs claim arose from defendants contact with the forum for
breach of very contract that brought defendant to forum
o States interest Cal had an interest in providing a court for its people

Hanson v. Decka (1958) Court finally said no on PJ! Wealthy PA woman sets up trust
fund at a DE bank. Woman moves to FL. When she dies, does Florida have jurisdiction
over DE bank? No!

Purposeful availment To have a contact under International Shoe, contact must

result from Purposeful Availment. DE bank never reached out to Florida; the only
reason they were there was because woman moved there. Unlike McGee where
TX company reached out to CA

66

Worldwide Volkswagen (1980) No jurisdiction! Robinsons in NY sue in OK do they have

jurisdiction over the regional distributor (WWVW) who does business in NY NJ CT, and
Seaway who only does business in NY. No jurisdiction because theres no purposeful
availment. They didnt ship car to OK! Tie there was simply from a unilateral act of a third
party
o Robinsons argue forseeability because if you buy a car in NY its foreseeable that it
can be driven to OK.
o Forseeability is not enough! You need forseeability that defendant could get sued
in that forum! Not foreseeable that regional distributor and retailer could be sued
there

Calder v. Jones (1984) California had jurisdiction over Floridians who wrote a
defamatory article in Natl Enquirer
o Defendant need to go to CA to have minimum contacts

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Burger King (1985) Yes Jurisdiction!

Two parts to International Shoe test contact part and fairness part

You must have a relevant contact before fairness is even assessed. All the fairness
in the world will not make up for a lack of a relevant contact
In this case, contact was easy they availed themselves of FL. Big deal here was
fairness
On fairness, burden is on the defendant to show that that forum is unconstitutional
very tough to show!

So gravely inconvenient that youre at a severe disadvantage in the

litigation. Relative wealth of parties is irrelevant
This is a Brennan opinion who was traditionally a protector of the little guy

o
o

Effects Test You can have minimum contacts by having an effect there

Asahi (1987) Stream of Commerce You make something, sell it to State B. Company
in State B puts your part in their product and sells it to States C, D, E. you didnt send
your product to state C, D, E. Can you be sued there? Have you availed yourself of C, D, E
o Court split 4-4 and Stevens was in the middle two approaches!
o Brennan It is a contact if you put product in the stream and can reasonably
anticipate that it will get to states C, D, E
o OConnor You need what Brennan has + an intent to serve state C, D, E
o No law here! This means you need to argue both ways

Burnham (1990) NJ Defendant sued in CA on claim that arose in NJ. Only way this
works is if Cal has general jurisdiction defendant was served with process in Cal. Is this
enough by itself to give jurisdiction? Do the Pennoyer traditional bases live, or were they
replaced by International Shoe? Another 4-4 split!

Scalia Presence when served is ok on its own, you dont assess minimum
contacts/International Shoe because of its historical pedigree

Remember, Shoe itself implied that this would be ok on its own because of
presence

Brennan Historical pedigree doesnt matter, you must assess under Shoe

Brennan said Burnhams contacts were sufficient to give general

jurisdiction though, so all justices agree.
According to Brennan, anyone who has ever set foot in Cal for 3 days is
subject to general jurisdiction there

General and Systematic - Perkins and Helicopteros A court has general jurisdiction if
defendant has continuous/systematic ties with the forum
o A company with its world HQs or individuals in their domiciles can be sued there
on claim anywhere

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to the Burnham split. Maybe presence is good on its own or maybe you need to do Shoe
minimum contacts analysis. If you do need to go to minimum contacts analysis: (1)
relevant contact between defendant and forum (a) contact from purposeful availment
and (b) forseeability must be foreseeable that defendant could get sued there; (2)
fairness (a) relatedness Does plaintiffs claim arise from defendants contact with
forum? This is assessing general or specific jurisdiction, then (b) five fairness factors
(burden on defendant) (i) inconvenience for defendant/witnesses; (ii) states interest;
(iii) plaintiffs interest; (iv) interest in efficiency; (v) interstate interest in shared
substantive policy (little opinion on (iv) and (v); Kulko No jurisdiction because of interest
in family harmony)
2. Statutory Analysis

Recap of Constitutional Analysis Does one of the traditional bases apply? If yes, go

On exam always start on statute! Every state has statute based on the 4 traditional

bases as well as statutes that let you go after nonresidents (specific jurisdiction statutes)
nonresident motorist statutes (Hess); long-arm statute for other claims.
o Statutes vary from state to state some have laundry list
o Long-arm statutes often say we have jurisdiction over defendant who commits a
tort in our state commits a tort is interpreted differently!

Grey v. American Radiator

Look for a fact pattern where you sell something in state B and it blows up
there. Did you commit tort there? Maybe some say yes because the
injury is there, others say no, your negligence was in state A and thus the
statute doesnt apply to you
o Note: Youll usually have relatedness if you meet the long-arm statute
B. In Rem and Quasi In Rem

Difference between the two with in rem, the suit itself is about who owns that property;
QIR, dispute has nothing to do with who owns it

Good example of this is Pennoyer which arose from an action after Mitchell v. Neff

which was about breach of contract. That is QIR. That suit would have worked if
the court seized that property at the outset of the case
o For In Rem and QIR, you need to make sure court seizes property at outset of the
case
Starting point is there a statute? Yes, an attachment statute which every state has that
allows seizure as basis of jurisdiction for property which defendant owns or claims to own.
Next point Constitutional Test
Shaffer v. Heitner (1977) In addition to seizing property at outset, you still need to show
that defendant meets International Shoe
o Constitutional test for in personam, in rem, QIR is the same

II. Notice

In addition to PJ, you need to give defendant notice of service of process

A. Service of Process

Governed by Federal Rule 4

Definition: Process consists of a summons and a copy of the complaint

69

o
o
o

Summons is a symbol of courts power over you Rule 4(a)(1)

Service can be made by any NON party who is at least age 18
To serve an individual, Rule 4(2). 4(e)(2) gives three alternatives:

Personal Service

Substituted Service at defendants dwelling (usual abode) AND you must

serve someone of suitable age (note, it doesnt say age 18) and discretion
who resides there

Serve defendants agent

o Dont forget 4(e)(1) You can use methods for serving process allowed by state
law! State where federal court sits AND where service is effected
o How to serve a business, 4(h)(1) Serve an officer or managing or general agent
someone of significant responsibility given the job description

4(e)(1) applies here too. You can use state methods

o Waiver of service, Rule 4(d). This is NOT service by mail, its waiver by mail

Send to defendant process and a waiver form and a SASE. If she returns
it by 30 days, then we deem it a waiver of service

If she doesnt mail it in 30 days, then we have to serve process formally

and she will pay the costs!
B. Constitutional Standard

Mullane v. Central Hanover Bank (1950) Notice is OK if it is reasonably calculated under

all the circumstances to apprise the party of the proceeding

All of the methods of Rule 4 are constitutional even if the defendant didnt actually get it.
No constitutional requirement that defendant actually receive service of process!

Jones v. Flowers (2006) If the plaintiff becomes aware that it was not received, she may
have to pursue other means. In this case, state became aware that defendant wasnt
getting service because the mail kept getting returned. Court required them to make
service by other means

III. Subject Matter Jurisdiction

What court do we go to in state X? State court or federal court?

State courts can hear any kind of case, they have general SMJ. One minor exception is
that there are some federal question cases that must go to federal court bankruptcy,
patent infringement, etc.

Federal courts have limited SMJ because Article III says so Diversity of Citizenship and
Federal Question

Remember: PJ is over parties, SMJ is over claims

A. Diversity of Citizenship 28 USC 1332(a)(1)

(1) A case between citizens (not residents) of different states; (2) amount must exceed

$75K
1. Citizens of Different States

Complete Diversity Rule (from Strawbridge v. Curtis (1806)) No diversity if any plaintiff

is a citizen of the same state as any defendant

Citizenship of a human being A US citizen is a citizen of the state where domiciled.

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Domicile You only have 1 at a time. You retain your domicile until you (1) are
present in the new state AND (2) you form the intent to make it your permanent
home

Example is Robinsons in WWVW they form intent to go to AZ but their

domicile is still NY because they never set foot in AZ
Citizenship of Corporation 1332(c)(1) Corporation is a citizen of two places (1) where
its incorporated; (2) the one state where it has its principle place of business (PPOB)
o A corporation, unlike a human being can be a citizen of more than one state
o

To determine PPOB, SCOTUS determined Hertz (2010) PPOB is the companys

nerve center the place from which business is directed. Usually the HQs

Before Hertz, some courts said PPOB was nerve center, others said muscle

center, where it did most of its business

Citizenship of an Unincorporated Business (Partnership, LLC) You look to citizenship of
ALL members
o It could be a citizen of all 50 states, the Teamsters Union is like this meaning it
cant be sued in federal court under diversity ever
2. Amount in Controversy

Must exceed 75K. The claim itself must exceed it, not counting interest on claim and costs

of litigation
Plaintiffs claim governs unless it is clear to a legal certainty that she cannot recover more
than 75K pretty rare!
o Like if there were a statutory cap on damages or a contractual breach that limited
recovery

Aggregation Where we must add multiple claims to get over 75K

o We aggregate claims if it is one plaintiff vs. one defendant no limit to number of
claims and the claims dont need to be related at all!
o You cannot aggregate if you have multiple plaintiffs OR multiple defendants
o FOR JOINT CLAIMS, USE THE TOTAL VALUE OF THE CLAIM and the number of
parties is IRRELEVANT

This is so because in a joint claim, any one of the multiple tortfeasors

could be held liable by himself
B. Federal Question Jurisdiction (1331)

The amount in controversy is irrelevant, as is citizenship

Case has to arise under federal law

Well-Pleaded Complaint Rule Court looks ONLY at the complaint, not the answer,
counterclaims, etc. Within the complaint, look only at the claim itself

Mottley (1908) Mottleys contract with RR for free pass then congress passes law saying
no free passes. Mottleys sue RR for breach of contract, saying federal law doesnt apply
to them. Case cannot go to federal court because it does not arise under federal law.
Here, the claim is breach of contract. Federal law not applying is an anticipated defense

Ask yourself: Is the plaintiff enforcing a right under federal law? Answer here is

no!
Supplemental Jurisdiction

For every claim in federal court, there must be SMJ

71

Test every claim for diversity and federal question. If it does NOT meet them, we might
still get it in through supplemental jurisdiction (1367)
o Here, were talking about another claim in the case. It cant get the case into
federal court

Gibbs Labor disputes in coal fields. One plaintiff and one defendant, both from
Tennessee, two claims. Claim 1 arises under federal law (federal labor law), Claim 2 arises
under state law by itself, could not get into federal court. SCOTUS said federal court can
hear that claim if it is part of same overall case as the claim that got us into federal court
o If those claims share a common nucleus of operative fact

1367 is easy if we keep it mechanical

To do supplemental: (1) Does 1367(a) grant supplemental jurisdiction? Yes if it meets

Gibbs (Common Nucleus of Operative Fact); (2) 1367(b) kills supplemental jurisdiction
over certain claims ONLY IN DIVERSITY CASES and only claims BY PLAINTIFFS (a) against
parties joined by 14, 19, 20, 24, (b) rule 19 plaintiffs, (c) rule 24 plaintiffs
Removal Moving from state trial court to federal trial court

1441, 1446, 1447 Removal Provisions

It is a one way street. This goes ONLY from state to federal. You CANNOT remove from
federal to state. If a case doesnt belong in federal court, it is remanded to state court
General Rule - Removal if the case invokes Federal SMJ (if it meets diversity/federal
question)
Exception You cannot remove a diversity case if any defendant is a citizen of the forum
o Professors love to mix it up and give diversity of parties but make it over federal
question dont get faked out!
All defendants must agree to remove a case
Venue Provision You can remove only to the federal district that embraces that state
court where it sits

IV. Venue

If claims arise under transaction or occurrence, it always meets Gibbs

SMJ tells us that a case can go to federal court. Venue tells us which federal court

A. The Basic Rules

1391 Venue Choices

1391(a) for Diversity Cases, 1391(b) for Federal Question Cases but the two basic
provisions are the same; (1) and (2) are the same for each WHAT ABOUT (3)

In a case filed by the plaintiff in federal court, your two choice are (1) lay venue in a
district where ALL defendants reside
o If all defendants reside in different districts of the same state, then you can sue
them all in any of those districts

Its where the defendant resides different from citizenship. Residence for Venue
for individual, its your domicile, for a business (1391(c)), residence is in all
districts where it is subject to personal jurisdiction when the case is FILED

Applies to ALL businesses (corporation, LLC, Partnership, etc.)

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Example Ford has its PPOB in Michigan and incorporated in Delaware. It

does business everywhere so its subject to PJ everywhere

RESIDNCE IS FOR VENUE, CITIZENSHIP IS FOR SMJ

(2) Venue where a substantial part of the claim arose

B. Transfer

Moving within the same judicial system

Original federal court is called the transferor and the court to which we send it is the
transferee

Two transfer statutes in both of them, the transferee must be a (1) proper venue and (2)
must have personal jurisdiction, without waiver by the defendant
o This is a great way to check transfer and venue/PJ good exam question!

1404(a) applies when transferor is a proper venue. Allows for transfer based on
convenience of parties and witnesses AND the interest of justice
o In deciding whether to transfer, which is totally up to the judge, court will look at
public factors and private factors

1406(a) where the transferor is an improper venue. Up to the court to transfer or

dismiss
C. Forum Non Conveniens

Different from transfer. This is where a court dismisses because theres another court that
is the center of gravity

You dismiss because transfer is legally impossible. Like where the better court is in a
different judicial system, like a foreign country

Piper Aircraft v. Reyno (1980s) Plain crash in Scotland where everyone/everything was
Scottish, but manufacturer was in US. Court allows FNC dismissal because everything was
in Scotland

Look at Footnote 6 of Piper to see public/private factors. They are the same as in

1404
Defendants love FNC because in the foreign country they wont be liable for much because
there is no strict liability, punitive damages, etc.
When we get an FNC dismissal, its conditional upon the defendant submitting to the
foreign court

V. Erie Doctrine

Generally comes up only in Diversity cases

Federal court must decide an issue must federal judge apply state law to decide that
issue

Comes from Erie v. Tompkins (1938) Apply state substantive law because (1) Rules of
Decision Act (1652) and (2) the 10th Amendment Power not given to federal
government stays with the state government
How do you know if a case is substantive? The elements of a claim. But if its not
obviously substantive?

Starting point is not Erie, its Hannah v. Plumer (1965) What we thought was
one Erie doctrine is really two. First question we ask Is there a Federal Directive
on point could be a statute, FRCP, etc.? If yes, we apply the federal rule as long
as it is valid

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If federal directive is an FRCP, how do you know it ifs valid? Rules Enabling
Act (2072) Shady Grove. Court generally says its valid

What if theres no federal directive on point? This is an Erie question. Must file state law if
issue is substantive. Three tests: (1) outcome determination (Guaranty Trust (1945)) If
federal judge ignores state law, will it cause a different outcome? If no, we dont want that
and you must apply state law; (2) Balance the Interest (Bird (1958)) Ordinarily federal
courts follow state law unless there is a federal interest in doing it a different way; (3)
Twin Aims of Erie (dicta in Hannah) We want to avoid (i) forum shopping and (ii)
inequitable administration of the law Ask question at outset of case. If federal judge
ignores this state law, will it cause people to flock to federal court? If so, thats a bad idea
because we dont want to promote forum shopping

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Schaffner on Outlining

SMJ you may use statutory component; PJ doesnt have as big of a statutory component, you
have to think more about how to organize it

Syllabus organizes the semester and gives you the large and medium issues

Create outline in IRAC principle Rule, Application, Conclusion

Organize suptopics under IRAC

When looking at rule, identify possible issues gray areas

What is the real standard for purposeful availment of stream of commerce? (Asahi
OConnor, Brennan)

Different applications of the rule Burnham Scalia vs. Brennan

Quasi-in-rem/in-rem cases like Shaffer. Does that work in real property?

Application

What are the kinds of facts you should be looking for?

Minimum contacts is there a contract there? List kinds of facts

Conclusion

Maybe is many times the right answer.

The best way to add value to your conclusion is where policy comes in.

How would policy best be applied in choosing the right arguments

Personal Jurisdiction Outline

Two primary policies Individual Fairness and Convenience (Burden on defendant) versus
State Sovereignty
o If defendant purposefully availed himself from the benefits of the state, then he
was able to handle the obligations in court

Statutory and Constitutional

o Statutory Long Arm Statute

Does the court have statutory authority over the defendant?

Long arm statute, Consent, service in state, (4)(k) exception

presented in hypothetical nationwide long-arm statute or (4)(k)
(2)

Remember if its 4k2 analysis, youre dealing with national service

so your constitutional analysis changes

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Interpret the long arm statute could look like CA (extent to

Constitution), or GA (more limited)
Constitutional What does due process require?

International Shoe has defendant purposefully availed himself of such

minimum contacts with the state such that fair play and substantial justice
are followed
(1) Minimum Contacts (1) nature of the contact (single/isolated or
continuous/systematic), (2) relationship between contact and the claim
(give rise/related/unrelated); (3) purposeful availment (how much benefit
is person getting from the state)

Hanson case gives us purposeful availment (1) Stream of

Commerce (WWVW and Asahi) (2) Contract Cases (BK) (3)

Internet (Revell) (3) Effects Test (Calder, Jones, Revell)

(2) Reasonableness (1) Burden on defendant (how inconvenient on

defendant? High Bar); (2) states interest (is plaintiff resident/citizen?
Does state have an interest in regulating? (3) Plaintiffs interest (4)
Interstate interests

Well also see Joinder analysis

o The more reasonable the forum is, perhaps less compelling the minimum contacts
have to be

Organization by doctrine, not case by case

Notice

Rule 4

Statute/Rule and Constitution

o Rule 4 elements Waiver (is there a waiver?) or Personal Service

Waiver (mail or by other reliable means email/fax?)

If a defendant complies, what does that mean? What if they dont

comply?

Service What (complaint and summons), Who (served by a non-party

whose 18 years of age, Where (personally on defendant or at the
defendants dwelling/usual place of abode Kashoggi), to whom (suitable
age and discretion and residing there within)

Or by state law (in addition to (4)(e))

Constitutonal Test Mullane

What satisfies due process? Notice reasonably calculated to inform

parties of the penancy of the action so that they may appear and
be heard

Cost benefit analysis

Types of notice:
Publication, Mailing, Personal

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Schaffner Course Review

Not really a caselaw driven case, really an interpretation of Constitution, Statute, Rule. Cases
inform those interpretation and are examples of application Cases help ID what facts to apply

Arguing if something does or does not arise from same transaction

Policy Why the rules are the way they are.

Do legal analysis first. Policy can often come in in your conclusion

SMJ

Diversity Protecting out of state parties from in state bias in state courts

FQJ Lets federal courts have expertise in federal law

Constitutional and Statutory Authority

o Challenges are always under the statute, not the constitution (1331, 1332, 1367)

Diversity -1332 Complete Diversity of Citizenship and Amount in Controversy >75K

Strawbridge Complete Diversity of Citizenship

Citizenship determined at time of the filing

Individual Physical Presence + Intent to remain indefinitely in new states (Mas)

Corporations State of Incorporation + PPOB (nerve center)

Non-incorporated entity Citizenship of all of the members
Greater than $75K
o Based on good faith allegation in the complaint
o If judgment is under 75K you can get costs shifted but we look at complaint and if
theres not a legal certainty that party cant meet 75K
o
o

Aggregation You can add individual claims for separate injuries against one

defendant

Each P must meet amount in controversy against each defendant

o If its an injunction, courts look at value of injunction to the plaintiff or monetary
cost to D If either one of those meets amount in controversy, then its good to
go
FQJ (1331) Does the claim arise under federal law (staute/constitution)?

Arise Under (1) Mottley Well-pled complaint rule Court will only look to well

plead complaint of plaintiff Not anticipation of defense, counterclaim, etc.

When does a claim actually arise under federal law?

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Easy case Federal law creates cause of action and thats what plaintiff is
suing under

Harder case Grable When claim is created under state law but there is
a federal issue that arises within that state law claim. If four elements are
met, court can determine that it arises under federal law:

(1) state law claim must necessarily raise the federal issue theyll
definitely need to address federal issue to get to a judgment
essential element to recovery

(2) Federal issue must actually be in dispute

(3) Federal issue must be substantial If law has a federal action,

importance of issue to federal government (tax issues in Grabel)

(4) Federal forum may entertain the case without disturbing the
balance between state/federal case

Supplemental Jurisdiction (1367) Gibbs and Kroger were both codified by 1367
o
o
o

Arises when you have more than one claim.

Find the anchor claim where theres federal SMJ
Then, identify supplemental claim where there may not be independent SMJ

Are claims sufficiently related to comprise a constitutional case (Common Nucleus

o
o

of Operative Fact Gibbs). IF yes, youve met part (a)

Then, is the anchor claim a diversity or FQ? If diversity, look to part (b)
Is supplemental claim exempted under part (b) only PLAINTIFF claims are
exempted by part (b)

Would it defeat purpose of 1332 to allow SMJ?

1367 allows multiple P to sue one defendant regardless of amount in controversy

(Exxon)
Then, turn to (c) Court can decline supplemental jurisdiction under 4
circumstances (1) novel or complex issue of state law; (2) Supplemental claim
predominates the case; (3) are all anchor claims dismissed? (4) Exceptional
circumstances compelling reason not to hear supplemental claims (jury
confusion, pending action in state court already)
o Court may want to retain claims for efficiency purposes, important policy issues
Removal and Remand
o Removal If P files in state court, D can remove to federal court if theres SMJ
(1331, 3, 67)

If yes, you must properly remove and then remand if its done improperly
o All defendants have to join in the removal. If its diversity, make sure none of Ds
are citizen of state in which the case is proceeding
o Venue provision is inside the removal statute federal district ct that embraces
o Remove within 30 days of receipt of document which says court has SMJ
o Total window for diversity cases one year
o

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Remand if removal improper why? (1) P doesnt believe theres SMJ over the
case that can be raised at any time. (2) If removed for any other issue (timing,
etc.) you have 30 days to file remand motion

Venue

Closely tied to PJ

Venue = finding the most convenient place to litigate the case

o 1391

Three possibilities for venue. Third one is a fallback provision if no venue under (1) or (2).
Part (a) is for diversity, (b) is everything else. Only difference is (3)

Do all defendants reside in same state? If yes, then any district in which any of the
defendant resides (citizen).

If youre a corporation, citizen is a district where the corporation resides

OR where a substantial part of the events gives rise to the claim (Bates)

Only if theres no venue under (1) or (2), then you can use (3)
o (a) Where any defendant is subject to PJ at time of filing of action

(b) Where any defendant is found at time of filing of action

Transfer 1404, When you start in correct venue but you want to transfer in a better
venue. 1406 - You start in an improper venue but court wants to transfer instead of
dismiss (for inconvenience and justice Piper)

Piper is the only common law doctrine weve studied Forum Non Conveniens
o
o
o

Case in federal court, a court is better off in a foreign jurisdiction

Is there an adequate alterative forum outside of the US (not if the law isnt as
good elsewhere)
Balance factors wheres evidence, witnesses, burden on parties, etc.

Choice of Law if you start in proper forum, choice of law follows you (Piper). If you start

in wrong venue, you dont get choice of law

Pleading

Policy theme here is notice

Short and plain statement of claim that shows pleader is entitled to relief

We allow inconsistent claims to be alleged, as long as theres a good reason to and let jury
sort out what happened

Two kinds of sufficiency tests Legal and Factual

Legal Issues (1) P has not alleged all elements of claim. If somethings missing, court
will dismiss without prejudice under 12(b)(6). (2) You have all elements alleged but as a
matter of law, one of them doesnt meet the legal requirement Example is Loss of
Consortium

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Factual Issues How much detail do you need within each allegation Twombly, Iqbal.
Court accepts as true only the factual allegations, not the legal conclusions. Then, based
on facts accepted as true, court will draw all plausible inferences to determine if theres a
plausible claim against defendant
Procedural matter 12(b)(6), youre looking at complaint. If they have to look outside of
complaint, its a summary judgment motion

Dismissal Rule 41

Voluntary any time before an answer is served or by stipulation of party or order of court
o Without prejudice

Involuntary With prejudice Failure to prosecute claim by P, failure to comply with rules
or failure to comply with court order

Whenever a court order is dismissed without saying anything, its dismissed WITH
prejudice unless its for lack of PJ, failure to join under Rule 19, improper venue
Defendants Response

They can do nothing default judgment then collateral challenge on jurisdiction only,
otherwise full faith and credit is given to judgment and can be enforced

Timing 20 days to do something unless its waiver (you have 60 days)

Motion under Rule 12(b) or file an answer

o You only get one pre-answer motion (12(g))
o If not in motion, you can put them in answer

12(h) talks about which defenses get waived and which dont. For lack of PJ and improper
service, you waive it if its not in motion, answer, or amendment

12(h)(2) Failure to state a claim can be raised any time through trial. It will be a 12(c)
motion

12(h)(3) SMJ can be raised at any time and by the court sua sponte

Answers 8(b) Admit, Deny, or Allege lack of sufficient info for every allegation in
complaint. If you dont, its deemed an admission

Affirmative Defenses vs. denial Is some issue an element of the claim or an affirmative
defense. P complaint, D says you didnt allege all factors, 12(b)(6). P says no its an
affirmative defense
o How is language of statue written to suggest who has burden of pleading?
o Fairness Who has better access to information

8(c) lists some of the affirmative defenses

Example of easement you have to deny claim and list affirmative defense because its
beyond four corners of the complaint and it needs to be raised to give notice

15(a) One amendment within 20 days or permission of court (liberal standard)

o Fairness factors

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15(c) Relation back to amendments amending complaint to allow a new claim whose
SoL has lapsed If new claim arises out of same transaction, court will allow it (Marsh)
o Again, its about notice to he defendant

Rule 11 Any time a lawyer files a paper to the court, you are representing that youve done a

reasonable inquiry under the circumstances and based on this, factual contentions have or will likely
have evidentiary support after discovery; (2) allegations are based on a non-frivolous argument
(Bridges)

Court has discretion in assigning sanctions to deter the conduct, not to compensate the
opposition

Look for willful or negligent behavior, pattern or isolated behavior, big deal or not big deal,
what kind of attorney is it

Procedurally you have to serve Rule 11 motion on non-moving party and wait 21 days before
filing with court. If you dont wait and party doesnt raise defense, court can move on it

Court must give party an opportunity to explain their conduct

Joinder

Policy Fairness, efficiency, accuracy about getting parties/claims in one case

What are joinder rules that govern initial filing of case Claim joinder (18) P can bring
any and all claims against D.
o Party joinder Rule 20. Claims against each of joined party must AST and have
common issue of law/fact
o YOU MUST MEET VENUE, PJ, SMJ FOR ALL CLAIMS/PARTIES

When can defendant join claims/parties

o Claims (Rule 13) Counterclaim (a) compulsory if AST, (b) permissive not
AST. 13 a + b = Rule 18
o Supplemental jurisdiction if ds claims do not have independent basis of SMJ they
meet 1367(a) (CNOF) and are not exempted by (b)

13(g) Crossclaim if claim AST as the original complaint

Adding parties 13(h) D must have a counterclaim against P or a crossclaim against a

co-party. If they have one of those two, they can add D if relationship between their claim
and new D meets Rule 20
o Other way 14 Impleader Rule Derivative claims Where TPD would be liable to
D only if D was liable to P it offsets Ds liability it P

Contribution (Tort), Indemnification (Contract)

Rule 21 Improper Joinder Severe claims, no dismissal

20(b) and 42 Court can separate for trial, consolidate

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