Civ. Pro I Outline Overview CPI explores the question of where a plaintiff might be able to sue a defendant.

, which is practically a select-a-court game. There are two main court systems, namely state court systems and federal court systems. State courts are generally referred to as courts of general jurisdictions, meaning they can hear just about everything as limited by state law, while federal courts are referred to as courts of limited subject matter jurisdiction, meaning what federal courts can hear is limited by statutes as well as the United States Constitution. State courts are divided in ascending order as follows: - Trial courts (these are courts of original jurisdiction, meaning you can commence your claim/dispute in this court) - Appellate courts - State Supreme courts Federal courts are divided in ascending order as follows: - U.S. District Courts - (each state has at least one federal court; they can also be courts of original jurisdiction) - Circuit Court of Appeals - (these courts have appellate review jurisdictions, meaning they have the power to examine decisions that have already been rendered by lower federal courts; new claims may not be filed here i.e. They lack original jurisdiction) - U.S. Supreme Court - (although they have appellate review jurisdiction, they sometimes also have original jurisdiction, meaning cases can be first brought there though very rarely) There are some benefits why P might want to bring a claim in federal court as opposed to a state court. These include:

1. The wait time to process cases in federal courts may be significantly smaller than that of a state court since federal
courts are courts of limited subject matter jurisdiction, meaning they listen to fewer cases.

2. There may be less bias in federal courts than in state courts as the jury selection in federal courts is typically done from
a larger pool than in state courts.

3. Federal judges are more immune from various local pressures, including political pressures than state judges. This is
because federal judges are Article 3 judges, meaning they have life tenure whereas this is not the case with state judges, who are elected by their constituents. 4. Federal courts may be more sensitive to a claim that has federal law involved than state courts.

Exclusive v. Concurrent Jurisdiction Some courts have exclusive jurisdiction, meaning only they have the power to hear certain types of claims/disputes. For example, federal courts have exclusive jurisdiction over issues pertaining to bankruptcy, admiralty law, and intellectual property law. If a statute is exclusive to a particular court, the statute would say so. If the statute is silent, then the statute is concurrent to both federal and state courts. If a claim qualifies for concurrent jurisdiction, it means that it can be heard in both federal and state courts i.e. Both federal and state courts have the power to hear these claims. Examples of claims qualifying under concurrent jurisdiction are 1331 (federal question or arising under jurisdiction, 1332 (diversity jurisdiction) and 1367 (supplemental jurisdiction).

Subject Matter Jurisdiction (SMJ) SMJ is the courts power to hear a particular type of claim/dispute. You must establish SMJ over every claim asserted by each party. Therefore, it is important to draw a diagram accounting for all claims raised by each and every party. For example, a party might have three claims; you must establish SMJ for each of the three claims.

Article 3, section 2 of the U.S. Constitution establishes the outer bounds of what claims a federal court can hear. In fact, federal courts are limited in two ways:

1. They may not hear claims outside of those outlined in Article 3 (Outer Bounds). 2. They are not entitled to hear every claim that falls within Article 3 (Inner Bounds).
Once a claim has made it through the constitutional Article 3 outer door, the claim must also make it through one of the following three inner bound doors, namely: A. 1331: Federal Question or Arising Under Jurisdiction To determine whether the claim truly arises under federal law, we use a. The W ell-Pleaded Rule (aka the Creation Test/Mottley Rule): The rule is that the claim itself must arise under federal law. Under this requirement, we do not consider any defenses raised by D that may invoke a federal issue. Similarly, the mere presence of federal law in the claim does not make the claim arise under federal law. You look at the necessary and proper elements of the claim. Under this analysis, a claim arises under federal law IF the plaintiff relies on federal law as the source of her right to relief. In other words, federal law/issue absolutely NECESSARY to the proof of Ps claim. In Mottley, P did not base her right to relief under federal law but rather under Contract law (breach of K), even though P also raised a federal defense. The issue there was that the federal law was not Ps source of her right to relief. The mere presence of federal law or an anticipation of a federal issue alone does not suffice under this rule.

b. The Substantial Ingredients Test, which is a minority rule, examines whether: 1. The claim raises a substantial federal issue.
One way to determine this is by asking if the issue is one that is significantly prone to confusion for which federal courts have an interest to clarify. For example, in Grable, one of the issues was whether personal service could be used instead of certified mail for the purposes of giving D notice. Unfortunately, the IRS statute was not very clear. Therefore, it was a substantial federal issue for the federal courts to clarify what type of service was allowed under the IRS statute.

2. The issue is disputed by both P and D 3. The federal courts resolution of the issue upsets the balance between state and federal judicial powers.
Procedural Propriety (Rule 12(b)(1) Defense) SMJ is a Rule 12(b)(1) defense, which means: You can invok e it any time It is non-waivable You can even invok e it on appeal for the first time. D has two options when dealing with a Rule 12(b)(1) defense, namely:

1. File a pre-answer motion to have the case dismissed for lack of SMJ, or 2. Invoke the defense any time later, including during appeal for the first time
It is strategically better for D to use option #1 since it prevents D from admitting to anything on record. If a statute uses the word jurisdiction, it is referring to SMJ. 2

Conversely, note that P must allege SMJ from the very beginning when he commences his action. Broader Arising Under Definition Arising under has a broader definition under Article 3, section 2 of USC. It is basically satisfied in ANY case in which ANY party seeks to rely on or establish a proposition of federal law in order to prove a claim or even to defend a claim. Here, federal law ONLY needs to be an ingredient in the dispute. ***Problems 1 and 2 on page 179 reinforce this area***

B. 1332: Diversity SMJ

In order for a claim to satisfy diversity SMJ, there must be:

1. Diversity between the parties as defined by statute, AND

Diversity here means the parties must be domiciled or citizens of different states. The rule of complete diversity provides that no D can be from the state as P. *****Diversity and citizenship are BOTH determined at the time of filing***** Citizenship is defined as For Individuals To prove domicile/citizenship, P must be physically present in the state where he is claiming to be a citizen from AND have an intent to remain there permanently. These two elements must be met AT THE SAME TIME.

- It is important to note that citizenship is determined at the time the claim/suit is filed, not subsequently. - If a party is transitioning to another state but never made it to the new state, the state where they last held citizenship
applies.

- You can be a United States citizen and not be a citizen of any state.
For Corporations Corporations, unlike individuals, are creatures of dual citizenship, meaning we look at both the state where they are incorporated and the state where their principal place of business (PPB) is to determine their citizenship. For example, XYZ corporation may be incorporated in DE and have its PPB in WA. In such a situation, XYZ is a citizen of DE and W A. Therefore, any claim from another party must be from a state other than DE and W A to satisfy complete diversity. - There are two main approaches to determining a corporations PPB. One approach looks at the nerve center and then determines the corporations PPB by the location of its headquarters. The other approach looks at the muscle test, which focuses on where the corporation does/makes the most business. Partnerships If a suit is filed involving members of a partnership, all members of the partnership MUST be from separate/different states to create complete diversity UNLESS the non-diverse party leaves to create diversity. Permanent Residents and Citizenship Status U.S. permanent residents are considered citizens of the state where they reside. However, only treat permanent residents are citizens IF, BUT ONLY IF, it destroys diversity, not create diversity.

2. A claim in excess of $75,000, not including costs and interests Here, there is a presumption of good faith by the court upon P.
Once a claim passes this initial threshold, we must classify the claim under one of the following diversity of citizenship categories: 3

1. 1332(a)(1): Citizens of Different States ONLY (State v. State) - Here, we are dealing ONLY with citizens from different U.S. States. For example, - IA, IL v. W A, OR. - The key here is that the rule of complete diversity must be met i.e. No D can from the same state as P. 2. 1332(a)(2): Citizens of a State and Citizens of a Foreign State (State/Foreign State v. State/Foreign State) - The key here is that you must have ONLY single parties. - There still must be complete diversity on both sides - An example of this would include MI v. France, or W A v. Canada. 3. 1332(a)(3): Citizens of Different States FIRST, then additional parties, including foreign countries (State + Foreign
State v. State + Foreign State) - The key here is that as to the different non U.S. parties, there is NO complete diversity requirement - However, there still must be complete diversity among the U.S. States. - An example includes: MI v. OH, Mexico - Note that if you took MI out, theres no soup for that setup. Similarly, theres no soup for a setup between just foreign countries e.g. Canada v. Mexico.

Aggregation This refers to Ps ability to combine various claims in order to meet the amount-i n-co ntroversy requirement. It ONLY comes up under diversity claims i.e. ONLY under 1332 claims. Rule: One P can combine multiple claims with one D AS LONG AS the claims are UNRELATED. Similarly, single P can combine multiple claims against multiple Ds IF the claims are UNRELATED. For example, if E files two claims against L, one for 30k and the other for 50k, E can aggregate the claim to meet the amount-i n-controversy requirement. In this case, 80K, as long as both claims are unrelated. Similarly, if E files a claim against L and M for 50k and 40 K respectfully. E can combine the claims against the two Ds, L and M, as long as the claims are UNRELATED.

C.1367: Supplemental Jurisdiction

Using a Process of Elimination analysis, we always come to 1367 last. Under supplemental jurisdiction, we are faced with two claims, one claim which can perfectly enter federal court under either 1331 or 3132, which we call the anchor claim and another claim which cannot enter the federal court on its own, which we call the orphan or supplemental claim. Analysis

1. 1367(a): Does the federal court even have the power to hear both cases?
To address this question, we must first identify both the anchor claim and the supplemental/orphan claim. Once we have identified these claims, we must then apply SCNOOF (Same Common Nucleus of Operative Facts), meaning we must show that both the anchor claim and the orphan claim are so close that they would comprise the same federal case or controversy. You show SCNOOF by arguing that a ruling in one claim has an effect on the other claim. IF this is met, SCNOOF is met and we now have a federal case or controversy. 4

2.1367(b): Even though the court has the power under 1367 (a), is this one of the excluded cases?
Supplemental SMJ is taken away IF all of the following three factors are met: 1) The anchor claim is diversity only 2) The Orphan claim is asserted by P 3) The orphan claim is asserted against a party joint under rule 20 or rule 14. IF ALL of these factors are met, then no Supplemental SMJ. o IF ONLY some i.e. less than three of these factors are met or none at all, proceed to 1367(c)

3. 1367(c): Are there any reasons the court might decline to exercise its discretionary power?
Under this analysis, there are four factors courts must examine, which may cause the court to deny to exercise its power. These factors are namely:

a.The state claim is a novel or complex, meaning the orphan claim, which is a state claim in and of itself is one that state courts have never dealt with themselves. b.The state claim predominates the federal claim, meaning when you objectively consider the nature of the state claim, it is such that state courts are better apt to address the issue. Here, we consider BOTH a qualitative and a quantitative analysis. c.All of the federal claim has been dismissed, meaning that the anchor claim is no longer available and therefore, there is no reason for the state claim alone to get into federal court. d.There are other compelling reasons not to allow the state claim, meaning the federal court has the discretionary power whether or not to allow the claim.
Personal Jurisdiction (PJ) PJ refers to a courts power over the parties of a dispute to bring them to court, render a judgment and then enforce that judgment against them. PJ must be established over each and every party to a dispute/claim. Here, we typically focus on D, not P because when P brought the suit in court, P agreed to the courts PJ where he filed the suit. However, the issue is typically whether the said court has PJ over D. There are three main categories of PJ, namely:

A. In Personam Jurisdiction
In personam jurisdiction refers to the courts power over D himself. Here, the court may render money judgment against D, or order D to perform certain acts or refrain from acting. This judgment gives the court PJ over D and allows P to enforce the courts judgment in any state under the full faith and credit clause, which allows a court to respect the ruling of a previous court as long as that court had proper PJ over the parties. For example, if the court rendered a money judgment against D, P may go to any state where D has property and enforce the judgment there under the full faith and credit clause.

B. In Rem Jurisdiction
In Rem jurisdiction is a proceeding against Ds property. The court gets PJ by virtue of the fact that the property is physically located within its barriers. In exercising the courts PJ over the property, the court typically affects ownership and use of the property. Examples of this includes an action to quiet title or to foreclose a lien on real estate. Before a court can exercise in rem jurisdiction over Ds property, the court must tag the property at the beginning of the lawsuit else the in rem jurisdiction is invalid.

C. Quasi In Rem Jurisdiction

Quasi In Rem jurisdiction is a scheme that the court uses to get an out-of-state defendant into the state so that it can exercise PJ over him. Generally, the out-of-state D has property within the courts physical boundaries but the defendant may not be in the state at the time. Here, D is not personally bound. However, the court uses either Ds property to satisfy a judgment or to get D to enter the state so the court can tag him. ****Pennoyer and Its Significance**** In Pennoyer, there was a dispute over a piece of land, which was originally owned by Neff. W hen Mitchell obtained a judgment against Neff, the land was sold at a Sherriffs sale to Pennoyer. Neff then sued Pennoyer in a separate action to recover his land, which ended up going all the way to the Supreme Court. Ordinarily, if the judgment in the first case was valid, then the second court was obliged under the Full Faith and Credit Clause to follow the sister courts ruling. Under this scenario, Pennoyer would have won. However, the Supreme Court ruled that the first courts judgment against Neff was invalid because the court lacked PJ over Neff. NOTE: Neff did not have title to the property when the court exercised quasi in rem jurisdiction in favor of Mitchell. The issue was not against the property but rather against Neff. Under the Pennoyer scheme, a persons mere presence was sufficient for the purpose of obtaining in personam jurisdiction, irrespective of how long a person was in the given state. In fact, the court could even hear claims that did not relate to the purpose of the persons presence in the state at the time. This case highlighted two important territorial principles, namely: 1. Person or Property in State: A court could exercise in personam jurisdiction over any person, or in rem jurisdiction over any property, as long as the person or the property was within its borders at the time the suit was brought. 2. Person or Property outside the State: Since a states authority ended at its borders, a court did not have in personam jurisdiction over a person, or in rem jurisdiction over a persons property if the person or the property was not in the state. Similarly, D could expressly agree to the court exercising in personam jurisdiction over him. Despite these two principles, the courts established two exceptions, namely: 1. Status: A court had the power to determine the status of one of its residents in relation to another nonresident. Here, jurisdiction over the resident gave the court power over the status as well. One example of this included the courts power to grant a divorce even though only one spouse was a resident. 2. Consent: If a person appointed an in-state agent for service of process, serving that agent gave the power jurisdiction over the person. Notice Under Pennoyer Proper notice was required in order for the court to exercise its jurisdiction. - Under in personam jurisdiction, notice had to be served while the person was in the state. This was known as tag or transient jurisdiction. - Under in rem jurisdiction, the court had to either seize or exercise its jurisdiction over the property from the onset of the action. Due to inconsistencies pertaining to the application of Pennoyer, especially as it applied to corporations, there was a need for change in the PJ analysis. Modern PJ analysis asks the following questions and then, depending on the answer, proceeds with the appropriate approach, namely: 1. Did the defendant consent to PJ in the forum state or waive its lack of PJ defense? 6

D may consent to a courts PJ over him in advance of suit. The consent can be given:

A. Expressly: This is where D expressly agrees to the courts PJ over him. Examples of express consent include:
i. Forum-Selection Clauses in Contracts: This is where the parties specify that disputes can be heard ONLY in a particular court. In Carnival Cruise Lines, Inc. v. Shute, the court held that a forum-selection clause that was printed on the back of Ps steamship ticket was valid. o The Supreme Court ruled here that this clause was valid because it involved ships o If a party sues elsewhere, violating this clause, the other party can move for dismissal. o These clauses are enforceable in most jurisdictions as long as they are fundamentally fair; fairness is measured at the time the agreement was made and not when the case was filed. o Enforceability of forum-selection clauses is governed by state law, not federal law. o Not all states enforce these clauses. NOTE: A forum selection clause aka a choice of forum clause is DIFFERENT from a Choice of law clause. (1) A choice of law clause is where the parties agree that the laws of a certain jurisdiction would be used in interpreting and resolving any disputes BUT it does not grant PJ. o The parties can sue in any court and then have the court apply the specific law provided under the choice of law clause. o For example, just because A and B agree that MI law would apply in their K does not make MI to have PJ over the parties. (2) Choice of forum clauses is ONLY an element in the Due Process Minimum Contracts and reasonableness analysis while a forum selection clause, if found valid, decides forum selection. (3) A forum selection clause may be broad or narrow. ii. Consent documents signed by foreign corporations with state authorities as a condition for doing business in the forum

B. Impliedly/Waiver: A party may consent/waive PJ by inaction or by simply taking actions that are inconsistent with
his agreement that the court lacks power over him. Some examples of this include: i. Plaintiffs: W hen Ps file claims, including counterclaims and cross-claims in a given forum, they automatically waive/consent to the courts PJ over them. ii. Failure to Assert Defense (Defendants) Traditional Approach o Under the traditional approach, if D defended himself in ANY W AY, he had automatically waived his PJ defense as it was deemed tantamount to his admission that the court had jurisdiction to decide the case. Default and Collateral Attack: As a result, Ds only option if he was sued was to do nothing in the action. If D never showed up in court, courts would have declared a default judgment against D. This option allowed D to challenge the courts jurisdiction over him if P attempted to enforce the default judgment against D in any jurisdiction. D could invoke a collateral attack against P arguing that the default judgment was invalid because the court lacked proper PJ. This is what happened in Pennoyer. Dangers of the Collateral Attack: The danger of using the collateral attack approach by D was that if D appeared in any way in the initial action, he was deemed to have waived his PJ defense, making the collateral attack impossible. Also, the only issue D could raise in the second action was the first courts lack of PJ. If D lost on the PJ grounds, he could no longer argue on the merits of the case and would therefore be bound by the default judgment.

Special Appearance o A special appearance is one where D is allowed to appear and argue ONLY a lack of PJ. 7

This is a modified approach by modern courts from the original collateral attack approach where D could not even show up in court else it would have been considered a waiver of the courts PJ over him. NOTE that this is ONLY applicable if D is in state court. If D makes a special appearance, he can ONLY argue the question of jurisdiction and nothing else.

(1) IF D mak es other defenses, he is deemed to have consented or waived his PJ defense. Options After Jurisdiction Fails If D failed on the jurisdictional question, he has two options, namely: i. D can proceed to defend the case on its merit, which means he has conceded to jurisdictional question, OR ii. D can tak e no further action in the case, allowing the court to render a judgment against him after which he can challenge the ruling on the basis of jurisdictional question.

Federal Approach (Rule 12) o Rule 12 requires a party to raise objection to PJ no later than the answer and even earlier in some cases. IF Pre-Answer Motion is Filed: (1) Federal rules allow a party to raise certain defenses in a pre-answer motion. If a party files a pre-answer motion raising any Rule 12 defense or objection, he must also include any objections to PJ in that motion. If the party fails to include any objection to PJ in the motion, that objection is lost/waived. (2) NOTE: There are some defenses that a party may make prior to an answer that do not include Rule 12. W ith these types of defenses, the party need not include a PJ objection. For example, if the partyfiles a motion to disqualify a judge for bias, the party need not object to PJ. (3) A motion to dismiss for lack of venue triggers this rule. However, a motion to transfer venue does not trigger this rule. IF No Pre-Answer Motion is Filed (1) If D does not object to PJ in a pre-answer motion based on Rule 12, he must do so in the answer or in an amendment as of right to the answer. (2) Examples: P sues D. D then files a pre-answer motion claiming that Ps complaint fails to state a claim on which relief can be granted. The request is denied. D then files an answer that challenges PJ over him. Ds failure to include the objection to PJ in the preanswer motion prevents him from invoking the defense either in the answer or in another motion. P sues D. D brings no pre-answer motions. D files a timely answer but forgets to include a PJ defense. The time period for amending the answer as of right has expired. D has waived his PJ challenge.

****IF D waived or consented to PJ, then go to #4 (below), dealing with Service of Process aka Notice**** ****IF D DID NOT consent to or waive PJ, then go to #2*** 2. What type of state long-arm statute applies? A state long-arm statute indicates to what extent state and federal courts can exercise jurisdiction over an out-of-state D. Some state long-arm statutes even stipulate what type of claims state courts can hear. o Typically, most federal courts apply the State Long-Arm Statute (SLAS) where they are sitting. There are mainly two types of SLAS, namely: o Limiting SLAS: A limiting SLAS is one that lists specific instances under which the state can exercise jurisdiction (sometimes called enumerated or laundry list)

Example: In order for the state of MI to exercise jurisdiction over an out-of-state D, the D must have acted on Tuesday, wearing a blue scarf, etc. Exceptions (Federal Courts) (1) Despite the limitations provided under a states long-arm statute, federal courts still have a little more leeway under the following circumstances, namely: i. Other Federal Statute: if there is a specific federal statute that authorizes a federal court sitting in a given state to exercise its jurisdiction beyond that of a SLAS, the federal court may extend its jurisdiction to out-of-state defendants as allowed under the federal statute. ii. 100-Mile Bulge: A federal court that may ordinarily not be able to exercise jurisdiction over an out-of-state resident due to a limiting SLAS may be able to do so if: (i) The SLAS does not authorize the federal court to exercise jurisdiction over the party (ii) the party is within 100 miles from the federal court excluding any foreign territories (iii) D is a joinder (to be discussed later) Example: MI has two federal districts, W estern District and the Eastern District. If a limiting SLAS restricted courts in the eastern district from exercising jurisdiction in the western district, a federal court sitting in the eastern district may still be able to exercise jurisdiction over a party if the party is within 100 miles from the federal court EVEN IF that 100-mile extended to the western district restricted by the statute. iii. Federal Q + Sufficient Contact: IF the partys claim is a 1331 claim i.e. a federal question claim, we proceed by analyzing the partys contact within the entire U.S. (not only within the state where the federal court is sitting). IF the party has sufficient contacts AND the claim was a 1331 claim, the federal court CAN extend its arm beyond that authorized under a SLAS.

***IF Ds forum contacts do not qualify under the limiting SLAS, then no PJ**** ***IF Ds forum contacts qualify under the limiting SLAS, then go to #3.***

Non-Limiting SLAS: A non-limiting SLAS is one that confers jurisdiction to the full extent permitted by the Fourteenth Amendment right to due process (sometimes called blanket or limits of due process) NOTE that a non-limiting SLAS CANNOT go beyond USC. On Profs exam, briefly describe why a given code falls under one of the above categories. o ***IF D qualifies under non-limiting SLAS, then go to #3.***

3. Does the defendant have sufficient contacts with the forum state to satisfy minimum contacts/due process? 0 Contacts o If D has NO contacts between the defendant and the forum state, then the analyses stops immediately and we conclude that there is no PJ. Single or Isolated Contacts o Ds single or isolated activities in the forum state that do not relate to the controversy are not sufficient for the court to exercise jurisdiction over him. Note, however, that if the single or isolated activities in the forum state relate to the controversy for which D is sued, the court CAN exercise jurisdiction over D. 1 or More Contacts In determining whether D has sufficient contacts within any given forum, we can use one of the following approaches, OR BOTH if the fact pattern is ambiguous, namely:

A. Specific Personal Jurisdiction (SPJ): This is where a courts power over a person is specific to its contact in that state, meaning the person can only be sued under these activities.
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To prove whether SPJ applies, the following elements must be met, namely: (i) Nexus: This is the connection between what D is doing in the state and what he is being sued for. If the claim for which D is being sued for directly relates to Ds activity in the forum state, we say the claim arises out of Ds activity. If, however, the claim does not directly relate to Ds activity but it is still somehow relevant to Ds activity in the forum state, we say the claim relates to Ds forum activity. Ps claim against D must arise out of or relate to Ds activity NOTE: arise out of is closer than relate to o The lesser the contacts D has in the forum state, the more direct the claim must be. o The contacts in the state must be there voluntarily. (ii) Purposeful Availment: This is where D purposefully engages in the privileges of the forum state such that D invokes the possibility of being sued there. If D took advantage of the benefits and protections of the forum state in some way, then it is reasonably foreseeable to D that he would be sued in the forum state and therefore, D would have purposefully availed himself. Special Situations/Claims a. Contract Claims: If the claim for which D is being sued involves a K, state that merely entering into a K is NOT purposeful availment. Look at the K and consider Use the Burger King factors in analyzing the claim to see whether D has purposefully availed himself, namely: (i) The nature of prior negotiations between the parties In Burger King, Rudzewicz chose to negotiate for a franchise with a Florida company when he could have chosen to establish a franchise of a company based in Michigan or many other states. ****Look for factors that show that a party specifically targeted a particular forum state or knew that the forum state would dominate his contractual duties.**** (ii) The contemplated future consequences of entering into the contract In Burger King, Rudzewicz knew that he would derive many benefits by being affiliated with Burger King because of its national reach. ****Check to see what benefit the party stands to gain by entering into a K with the other party vis--vis its forum location*** (iii) The terms of the contract In Burger King, the terms of the contract clearly indicate that Burger King conducts its operations out of Miami. ****Look to see whether the K specifically mentions that certain activities would be conducted from the forum state.**** (iv) The course of dealing between the parties In Burger King, Rudzewicz clearly learned from his dealings with Burger King that the decision making power lay in the Florida headquarters and not the Michigan district office. ***Ask what the party has learned from his dealings with the other party that may shed light on the significance of the other partys forum state*** b. Internet Cases: This wrestles with the question of whether the viewer of a website can sue the party running the website in the viewers forum. In these cases, we use the sliding scale analysis, which categories websites into one of the following three classes, namely: (i) Passive Internet Site: This is a site that has: o no commerce or business 10

(ii)

(iii)

simply provides informati on NO PJ if the site is passive Active/Aggressive Internet Site: This is a site that has: o Commercial/business activity o Viewers can interact on the website o Viewers can download o The operator of the site gets some economic gain PJ/purposeful availment if the site is active/aggressive The Middle Scale: This is a site that: o Allows users to download content o Does not clearly have economic activity or is hard to discern whether economic activity exists Hard to decide whether PJ/Purposeful availment exists Courts examine the entire content of the site to see what determination can be arrived at. o

c. Stream of Commerce (aka Products Liability) Cases: This is a case involving a manufacturer placing a product in the market that ends up injuring someone for which the manufacturer is being sued. In order to satisfy purposeful availment under this situation, you MUST discuss these two theories, state that there is a split on how USSC views these cases. The split is dominated by the following two theories, namely: (a) Commerce Plus Theory (OConnor): Here, you must show that the manufacturer engaged in commerce PLUS an intent to serve the particular forum. The intent to serve the particular forum can be showed through examples as advertising in the forum state, specific design for the forum state, insurance policy in the forum state, etc (b) Commerce Theory (Brennan): Here, the mere exercise of commerce fulfills the purposeful availment element.

(iii) Fairne ss/R eas onable nes s: Once the above two elements have been shown by P. D has the burden of bringing up fairness factors, which deal with a question of degree of inconvenience; some inconvenience is to be expected. The following factors must be examined, namely: (i) The burden on defendant: We consider not only the distance D must travel but also any other circumstances that make defending in the forum state burdensome on the D. (ii) Interest of the State: A state is interested in hearing a case if any of the parties are from that state OR if the dispute directly affects the state. (iii) Interest of Plaintiff: This factor is satisfied if P is from the forum state OR if the forum is a convenient place to try the case because of the availability of evidence, witnesses, etc. (iv) Efficient Resolution: It is inefficient when a case involving multiple parties must be split up and litigated in several different places. If the chosen forum is the ONLY place that the claims can be heard, this factor supports jurisdiction. (v) Furthering Social Policies: If the alternate forum does not recognize Ps claim, refusing to exercise jurisdiction frustrates the policy underlyiung the substantive law. This is most lilk ely an issue if P is forced to refile in a foreign court.

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B. General Personal Jurisdiction (GPJ): This is where Ds contacts in the forum state are so extensive/substantial that the court has power over D is not limited to his contacts in forum. You must analyze GPJ under one of the following categories, namely: (i) Individuals: In order for a court to establish GPJ over individuals, the court must get jurisdiction through:
i. Domicile/Citizenship: Here, if D is physically present in the forum state and has an intent to remain there permanently, a court may execise GPJ over him, OR ii. Tag/Transient Jurisdiction: Here, if D is physically present in another forum voluntarily, without trick, without fraud, without immunity, a party can personally serve him for any purpose not related to his being in the forum. o HOWEVER, if another party wants to sue D, they cannot tag D on the initial partys tag. They must tag on their own. (ii) Corporations: A corporation fulfills the GPJ requirement if any of the following are met: i. PPB: Prof will give PPB ii. Place of Incorporation: Prof will provide this info. iii. Substantial, Systematic and continuous: A court within a given forum may exercise GPJ over a corporation if the corporations activities within the forum are substantial, systematic and continuous. o Substantial means we look at both the qualitative and quantitative nature of the corporations activities o Systematic means we the corporations activites were not random or sporadic o Continuous means the corporations activities continued unbrok en for a period of time. NOTE: If dealing with a corporation and you dont have PPB, or place of incorporation, discuss use both the Specific General Jurisdiction and Substantial, Systematic and Continuous analysis.

***IF D has no sufficient minimum contacts under the above analysis, NO PJ**** ***IF D has no sufficient minimum contacts under the above analysis, then go to #4.*** 4. Service of Process aka Notice The Due Process Clause of the Constitution requires that, in addition to Ds contacts within a given forum, D must also be served with notice; using only one does not suffice. o P give s notice of a pending action when he serves the summons and a copy of the complaint to D The summons notifies D that he is being sued in a particular court and commands D to answer Ps complaint within a fixed period. The complaint details Ps claims and the type of judgment P is seek ing against D. (1) How can P serve D? o IF D is an individual, then serve. D personally i.e. in hand Ds agent authorized by law or contractual arrangement A person of suitable age and discretion who resides at Ds usual place of residence o IF D is a corporation, then serve An officer of the corporation A managing or general agent ***Other substituted methods of service that are acceptable include: o Service by first class mail or certified mail o Service on the secretary of state with instructions to deliver to D o Service by publication if the whereabouts of D are not k nown and cannot be ascertained even with reasonable effort 12

(1) Who can serve D? o Any process server o Ps attorney, though not a good idea o Anyone 18+ who is not a party to the lawsuit can serve Waiver of Summons/Rule 4 (d): This is an alternative to actual notice. This is where P asks D to waive service. (i) Request for Waiver: P asks for a waiver by mailing the following via first class mail: a. Form 5 (the request for D to waive) and Form 6 (the actual waiver) b. Copy of the complaint c. Prepaid means of return (ii) Date Requirement: The request must specify a date by which it must be returned, which cannot be less than 30 days from the date it was sent for Ds within the U.S. OR 60 days for Ds outside the U.S. How Waiver is Effected: D waives service by returning the request by the specified deadline. IF D does not return the request by the deadline, the request DOES NOT constitute a waiver. Failure to Waive: The law does not require D to waive. However, the rule provides both a carrot and a stick to encourage defendants into waiving service of process, as follows: a. Carrot: If D waives service, he automati call y gets an extensi on from 21 days to 60 days following the date the request was sent to answer Ps complaint. o If the request was sent to an address outside the U.S., the time for answering is extended to 90 days if D returns the request i.e. waives b. Stick: Although D has no duty to waive service, he has a duty to avoid unnecessary costs. IF D is located in the U.S., failure to respond to the request for a waiver is grounds for P to get an order from court requiring D to reimburse P for the costs of actual service, together with collection fees UNLESS there was good cause for the failure. o Examples of good cause include being incapacitated, sick, etc

(iii)

(iv)

NOTE: W aiving PJ DOES NOT waive service of process/notice Waiving service DOES NOT waive any other defense, including those based on lack of venue. You cannot ask the U.S. government to waive; individuals and corporations can waive.

Did D waive his 12(b)(4) or 12(b)(5) defenses? o Rule 12(b)(4)/Insufficient Process This is when something is defective with the content of the summons or complaint, such as the summons failing to name the parties or the court. Rule 12(b)(5): Insufficient Service of Process Here, the summons and complaint are fine but they were not properly delivered to D.

***IF D waived service as well as any of his Rule 12(b)(4) and Rule 12(b)(5) defenses, then the court NOW has proper PJ i.e. the court can now bring D into court and render judgment against him*** Venue Venue is the place where the legislature requires a particular action to be brought; it is a creature of statute, meaning it is inherently not a constitutional requirement. NOTE: o Venue is different from transfer (ak a change of venue) 13

Transfer or change of venue is going from one proper venue to another within the same court system

o o o

Venue is decided by federal district. On an exam, DO NOT state that venue is appropriate in MI; it is ONLY by district. There may be multiple proper venues; it is not a search for the one and only perfect venue It is a waivable defense i.e. if D fails to invok e an improper venue defense under Rule 12(b), he has waived the defense. The defense must be brought in your first response. You cannot dismiss a case based on improper venue.

28 USC 1391 Determines Where Venue Is Proper o Venue in Purely Diversity Cases: 1391(a ) IF SMJ is based SOLELY on diversity, venue is proper in any of the following situations, namel y: (1) 1391(a)(1): a district in which any defendant resides, IF all defendants reside in the same state o Resides means domicile ak a physical presence + intent to stay there permanently o IF even one D is domiciled in another state, then venue is not proper o IF a state has multiple districts, say ED, WD, ND, and CD, and P sues three Ds, each from ED, WD, and ND, venue is proper in any of these three districts. HOWEVER, venue IS NOT proper in CD if no D is from there (2) 1391(a)(2): any district in which a substantial part of the events or omissions giving rise to the claim occurred. o An event or omission is substantial ONLY IF it is relevant somehow to Ps claim (3) 1391(a)(3): IF there is no other option, any district in which any defendant is subject to PJ at the time the action was commenced. o ONLY a single D needs to have PJ over him o Note that if other Ds are not subject to PJ they can invok e their lack of PJ defense.

Venue in All Other Cases NOT Purely Diversity-Based: 1391(b) IF a diversity claim is combined with other claims, such as 1331 federal question claims, then diversity is proper in the following situations, namely: (1) 1391(b)(1): a district in which D resides, IF all the Ds reside in the same state o Resides means domicile ak a physical presence + intent to stay there permanently o IF even one D is domiciled in another state, then venue is not proper o IF a state has multiple districts, say ED, WD, ND, and CD, and P sues three Ds, each from ED, WD, and ND, venue is proper in any of these three districts. HOWEVER, venue IS NOT proper in CD if no D is from there (2) 1391(b)(2): any district in which a substantial part of the events or omissions given rise to the claim occurred. o An event or omission is substantial ONLY IF it is relevant somehow to Ps claim (3) 1391(b)(3): IF there are no other options, any district in which any D may be found. o Only one D suffices to meet this requirement o Venue involving Corporate Defendants: 1391(c)

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Sued in State of Incorporation: If a corporation is incorporated in a given state, venue is proper in any district in that state. Sued in PPB State: If a corporation is incorporated in another state but has its PPB in another state, venue is proper in any district in the PPB state. (1) You must do a district-by-district analysis.

Other Situations: If a corporation is not in its PPB or incorporation state OR if there are no contacts in a given district,then the corporation does not reside there and therefore venue is not proper. (1) Must do a minimum contact analysis (Not a full blown one) Foreign Acts: If the event giving rise to the claim happened overseas, then venue is proper in any district where D is from. Venue involving Aliens Aliens can be sued in any district; venue is satisfied.

Forum Non Conveniens o This is a court-created doctrine that allows a court to dismiss a case even though venue is proper. o Before a court can dismiss a case based on forum non conveniens, the court must ascertain that there is an alternative forum and whether the chosen forum is grossly inconvenient by considering the following factors: Private Factors: These factors pertain to individual litigants, namely: (i) Where the underlying events occurred (ii) Where the witnesses and physical evidence is located (iii) The overall costs of litigating in the two places (iv) Whether it would be possible to compel witnesses to testify in the forum chosen by P (typically an issue when witnesses are located in other countries) (v) Language issues (vi) Whether the judgment by the chosen court would be enforceable in the place where Ds assets are locate d.

Transfer (aka Change of Venue) o Two main statutes governing this area, namely: 1404: This section is applicable where ONLY if the court hearing the case has BOTH PJ and venue. (1) If either is lack ing, then you must go to 1406 (2) Any party can request a transfer based on convenience or for reasons that are in the interest of justice to them. (3) When transferring under this section, the law of the transferring court follows the 1404 transfer i.e. the transferee court would apply the same law that the transferor court followed. 1406: This section is applicable where venue is improper. The parties can seek to have the case transferred to a court with proper venue. (1) Here, a party may only seek a transfer for reasons that are in the interest of justice, not conveni ence. (2) The transferee court must have proper PJ and venue. (3) The law of the transferring court does not follow the case to the new court.

Pleading A pleading is the means by which parties advise the court and each other of the claims and defenses they plan to assert in court. o There are two main types of pleadings, depending on the jurisdiction, namely Code Pleading: These are pleadings that are very fact-intense 15

Notice Pleading: These are pleadings that are intended to put D on notice and therefore not as fact-intense. (1) Federal courts follow notice pleading. There two main pleadings in a case are: The Complaint: This is the paper filed by P that describes the underlying event and sets out the claim or claims for which P seeks to recover.

The Answer: This contains a partys response to another partys allegations. (1) NOTE: These are filed not only in response to the complaint but also in response to counterclaims, cross-claims, and other claims for relief. (2) Pleadings can be categorized as follows: Original Pleading Complaint Answer with counterclaim Answer with cross-claim Third-party complaints o Responsive Pleading Answer Answer to Counterclaim Answer to Cross-claim Answer to third party complaints Other (ONLY IF allowed by the court) Reply to answer to complaint Reply to answer to Third party complaint

Understanding Important Terms Counterclaim: P sues D and then D also sues P. Cross-claim: P sues D and then D sues D2 Third party Complaint: P sues D and then D turns and sues some third party

General Rules for Pleading: Rule 8 o Rule 8(a): This deals with the claim itself. The claim must satisfy the following three elements, namely: (i) A short and plain statement of the basis for SMJ (SMJ) (ii) A short and plain statement of Ps claim (notice) (iii) A demand/prayer for the relief sought (relief) o NOTE that (b) is the most difficult. o New (Iqbal) Pleading Standard Old Standard: Prior to Trombly, the pleading requirement was much more flexible as P was not required to plead specifics; P simply had to assert a claim and courts would presume Ps legal conclusion and then allow P to find proof as the case proceeded. New Standard: Today, there is an elevated pleading standard. Analyze a pleading as follows: (1) Look at the complaint and sort the allegation; toss out anything that looks like a conclusion. o This is because these are not entitled to a presumption of truth (2) Any remaining well-pleaded factual allegations are entitled to remain and then determine whether they plausibly (more than a mere possibility) give rise to a legal action against D ***Plausibility is key here; something is plausible if it is believable and appears likely to be true*** o Basically, under the new standard, facts are alleged that paint a plausible picture of liability, thereby showing that the pleader is entitled to relief.

Conclusory Zone (insufficient): No facts breaking down legal conclusions are alleged.

Neutral Zone (insufficient): Factual allegations are pleaded but those facts are consistent both with liability and with innocent alternate explanations.

Zone of Plausibility (Sufficient): Facts are alleged that paint a plausible picture of liability, thereby showing that the pleader is entitled to relief.

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Challenging a Complaint (D Attacking Ps Complaint) D can invoke many Rule 12 defenses and specifically Rule 12(b)(6), which is where P files a complaint and then D files a motion asking P to provide more details. A court can dismiss on these grounds ONLY IF there is no reasonable way to construe a complaint to allege a recognized cause of action. o IF Rule 12(b)(6) motion is granted, before dismissing the case, courts would almost always grant P the opportunity to amend the complaint. In federal court, the granting of a 12(b)(6) dismissal for failure to state a claim is dismissal on the merits of the case UNLESS the court states otherwise i.e. the case cannot be brought back in. NOTE: Courts hardly approve these types of motion. o Exception: this is not the case with claims involving fraud or mistake claims

12(C): D can also challenge P's complaint under 12(c), a judgment on the pleading. This happens at the close of the pleadings, arguing that even after all that, P still can't meet the standard o What do you look at under this defense? o The pleading; you ONLY look at the pleading and ask, "can they allege this?" NOT Can they prove this?

Rule 8(b): This deals with how D deals with Ps allegations in Ps complaint. The rule requires D to admit or deny the allegations asserted by P. Failure to Deny: IF D fails to deny the allegations made by P in the pleading, it constitutes an admission of the matter in question. o NOTE: This ONLY applies where responsive pleadings are required e.g. answer, etc. IF NO responsive pleading is required, D is deemed to have denie d. Exception: D is not required to deny the amount in damages claimed by P; D can still challenge this amount during trial.

Lack of Knowledge: Since statements made in pleadings must be done in good faith and grounded in fact, if D does not have sufficient information to respond to Ps claim, he can simply plead that he lacks knowledge or information sufficient to form a belief about the truth of the allegation. o D must specifically state he lack s info; specificity is required Ds statement alleging lack of information is treated as a denial. Therefore, the issue mains a controversy for the purposes of trial and discovery.

Federal Rule 8 (d): Consistency This section applies to all pleadings. It requires each allegation to be simple, concise and direct o 8(d)(2): Alternative: An example of alternative claims involves a situation where P can include alternative forms of relief under his complaint e.g. if P has a claim that offers remedy under both K law and Tort law. The pleading MUST still comply with the New/Iqbal Standard. o NOTE: Under the federal rules, you are allowed to allege alternative or inconsistent claims or alternative or inconsistent defense. - At common law, this was the case. 17

Pleading Special Matters - Rule 9(b): Fraud or Mistake; Conditions of Mind Fraud and Mistake: If a party brings a claim against D based on fraud or mistake, there are elevated pleading standards requiring the party to plead the fraud or mistake with particularity. o Here, P cannot simply state that D fraudulently caused him to sign the K but rather he must describe in detail the representations made by D and how they were incorrent. The rationale for this is to mak e sure people to spoil others good name without merit. Conditions of the Mind: Other mind conditions such as malice, intent, k nowledge, and any other condition of the mind are not subject to the particula rity/heightene d requirement.

Section 1983: Federal Civil Rights Act (aka the Ku Klux Klan) This creates a right of action in federal courts against state and local government entities who act in such a way that deprives citizens of their federally-protected right. o Rationale: To prevent discrimination and bias when a citizen files a claim in state court. o Elements: (i) You have been deprived of your federally protected right and (ii) Someone or something is acting under color of state law NOTE: o Most, if not all, public employees have a Qualified Immunity Defense (QID), meaning they acted with a good faith subjective belief that what they thought they were doing was legal o Pattern, practice or policy is also another approach a public employee can use where they don't have QID. Here, they basically just have to prove that they were engaged in such a conduct BEFORE the claim at issue. o USSC has not ruled on QID as to whether a heightened pleading requirement is needed. Prof won't test us on areas that the US Supreme Court is unclear on with regard to heightened requirements. Nonetheless, be prepared to spot a similar Form 11 on the exam and see if it passes the New Standard analysis.

Ethical Limitations in Pleading: Federal Rule 11 Rule 11 governs the ethical nature of pleadings. o Note, however, that Rule 11 DOES NOT apply to discoveries or disclosure documents. The rule is divided into the following three sections, namely:

1.

Rule 11(a): Signature Requirement Everything that gets filed with the court, that does not involve a discovery or a disclosure document, must be signed by the attorney of record or his authorized agent, or if you are representing yourself, you. Prof says attorneys use signature stamps and therefore must be careful who signs with their stamp. NOTE:

18

(1) You CANNOT sign on a document as a law firm; the signature must be an individual lawyer's name, not his law firm's name. (2) The lawyer must give his address, email address, etc. (3) A person who has not passed the bar exam cannot sign. (4) Under general pleading rules, you don't have to verify pleadings, BUT here you need verification. o Some statutes may impose verification requirements

2.

Rule 11(b): Representations to the Court As a general proposition, any time you submit any written paper, you are telling the court generally that you have done an investigation; the investigation must be one that is reasonable under the circumstances. o Reasonable under the circumstances could mean that if you the attorney is almost running out of time to avoid your client's case from being thrown out due to the clock running out on the Statute of Limitations requirement 11(b)(1): You are basically saying the complaint/paper you are filing is not being done for an improper purpose e.g. harassment, unnecessary delay, etc. 11(b)(2): You are saying that you have a legal basis for this claim or for this motion OR a non-frivolous reason to modify to create new law e.g. suing the federal government's authority to impose federal income taxes 11(b)(3): You are saying that you have a factual basis OR that with discovery you will be able to establish the claim/basis 11(b)(4): Deals with someone who is responding to an allegation. o As a general rule, if someone makes an allegation against you, you must respond as follows: Admit Deny: It means you have facts to base it on Deny for lack of information or belief: This means you don't have enough factual basis to mak e a response

3.

Rule 11(c): Procedures and Sanctions Deals with procedures and sanctions if someone violates. Basically, it talks about what can happen to you if you sign but cannot back up your representation. o Generally, either your opponent will bring the issue or the court will bring up the issue on its own initiative Rule 11(c)(1): States that the court has discretion on whether to impose a sanction or not. Even if there is a violation, it does not guarantee that there will be a sanction. Rule 11(c)(2): States that there are no "combo meal" motions with rule 11 motions i.e. You CANNOT combine rule 11 with any other motions o o Prof says this is an area that trips students on exams. Procedure: You draft your motion, file it with the other party and then wait 21 days, which acts like notice giving the other party the opportunity to resolve the issue IF the party fixes the issue, then no sanctions.

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IF the party does not fix it, you can then file the motion with the court and the court will decide. o Whoever wins may be entitled to their attorney fees for winning or defending it.

Rule 11(c)(3): States the court on its own can initiate action against the party suspected of violating the rule.. o The court on its own may order a party to show that they have not violated a rule o However, note that if this happens, you DO NOT have 21 days as is the case under 11(c)(2) to fix the issue. Rule 11(c)(4): Nature of Sanction o The court may impose monetary and non-monetary sanctions. Monetary includes an order to pay a penalty to court or pay other side's attorney fees If the court raises the motion, they will not impose attorney fees on you (limitation) Non-monetary includes dismissing a claim, reprimanding the lawyer and reporting the lawyer to the ethics board or even require you to take Civil Procedure class again

======================================= What triggers Rule 11? o It does not apply to discovery and deposition. o The trigger of Rule 11 is signed pieces of paper filed with the court o Every paper filed with the court has to be signed by an attorney of record o No discovery or Oral communication NEVER use "good faith" with Rule 11 Mechanics 1. Certification is the trigger: That is, signing any document and filing in to court. When you file a document in court, you are basically telling the court that you did a reasonable inquiry; it does not mean everything is true but rather that under the circumstances you have done a reasonable inquiry under the law 2. Certification means... 1. Reasonable: Reasonable Inquiry W hat constitutes "reasonable" depends on the facts of the case. If your 2. Factual Support: Not frivolous. No matter how reliable you think your client is, you cannot rely on them for the factual version of your paper. You must do independent factual investigation such as a police report, public records, etc. 3. Legal Support: Meaning there is a legal basis for what you are filing in court. If no basis, you must have an argument that the law should not be followed or modified to fit your circumstances. The classic scenario here on exams is that the attorney's jurisdiction does not follow that law but surrounding jurisdictions follow the law. The attorney can argue that his jurisdiction should now start following 4. No Improper Purpose: Not for harassment, delays or to make the other side's case too expensive. 3. Certification Standard Hypo: P, citizen of NY, sues D, a corporation incorporated in DE with PPB in NY. This is a state law claim. D's attorney's removes case to federal court. P's attorney calls D's attorney and says you can't remove this case because there is no diversity. D takes no step to cure the issue. If P filed a Rule 11 violation against D, D could not invoke the pure heart empty head defense i.e. D cannot claim his mistake was in good faith. Ignorance is not a defense 20

 The standard is not good faith or bad faith. Don't think that an attorney's defense to a Rule 11 complaint is bad faith Today's Standard" Would a reasonably competent attorney have filed that piece of paper? 4. When is Rule 11 Compliance Measured Rule 11 is measured when the piece of paper is filed IF at the time you filed the paper, you had support for what you put on there. However, if later you no longer have that support on the paper, you are under no obligation to go back and change the paper as long as at the time you filed you had legal support 5. Who is sanctioned? Old Rule: Previously, it was ONLY the person who signed the paper filed in court. Modern Rule: Today, a law firm and partners in the law firm are jointly and severally liable. NOTE: The client may also be sanctioned for not proving true statements to the attorney. If a piece of paper is filed that has no legal support and the client is represented by an attorney, only the attorney can be sanctioned.

6.

What are the Sanctions? In 1993, the rule was amended to state that sanctions are discretionary; courts don't have to impose it even if a violation The rule states the court should in the first instance not even impose monetary sanctions Non-monetary first (preferred.) If monetary, then only for the worst case IF the court finds that monetary sanctions are necessary to deter bad conduct, then they can imposed. e.g. a party filing a paper that ended up costing the other side a lot of money, etc. Procedures for Sanctions How do you get a court to do something? File a motion These are several pieces of paper that asks the court to do something The motion includes supporting affidavits and a memorandum of law, which takes a lot of time Before you file a motion, you must give them 21 days to correct the problem (Safe Harbor) IF you don't, courts would deny that motion. If the problem corrects, you cannot file the motion. Sua Sponte ("Of their Own Accord") This means the court on its own can sanction an attorney. HOW EVER, the usual procedures for Rule 11 don't apply i.e. you don't get 21 days. Courts would NEVER appoint attorney files.

7.

1.

======================== o How does D respond to Ps Complaint? D responds in one of two ways: (1) A Pre-Answer Motion: a. This is a motion filed by D, typically before the answer is due. b. It is typically a Rule 12(b) motion, which may raise defenses such as lack of SMJ, insufficiency of process, insufficient process, failure to state a claim (the so what motion) c. It suspends the time you have to respond to the answer. d. If the motion is granted, the case is gone. e. If the motion is denied, D has 14 days to answer 21

D can choose to raise his 12(b) defenses in his pre-answer motion or in his answer. However, if D has raised waivable 12(b) defenses in his pre-answer motion, he cannot raise them again in his answer as they are gone forever. g. Basically as a rule, your first response to the litigation has to raise the waivable defenses h. A 12(b) motion is the cheapest and easiest way to get out of the complaint or to buy yourself some more time. (2) The Answer: a. An answer is a pleading. b. It tak es a factual position on the case. c. Every single allegation raised in Ps complaint, which has to be numbered, must be responded to; each one of them. d. The answer tak es a factual position, where D admits, denies (specific denials preferred) or says I dont k now; IF D forgets to respond to an allegation, it is deemed that D admits to it. If D says I dont k now, it is deemed to have been denied. e. The answer can also tak e a legal position such as raising a 12(b) or 8(c) defense; 8(c) deals with affirmative defenses. f. D can also raise a counter-claim against P in his answer Rule 8 (c): Affirmative Defenses Definition: An affirmative defense introduces a new fact to the case that completely wipes out liability. If you don't raise an affirmative defense, you may not be able to bring it up during trial. Example: A classic affirmative defense example is D claiming that P failed to meet the SOL requirement by not serving him on time. How do you know it's an affirmative defense? It introduces a new fact beyond what P claimed. It takes the other part by surprise; keep in mind, though, that surprise a bad thing about pleadings.

f.

Rule 15: Amending a Pleading AKA How Parties Change their Minds o Because courts recognize that a pleading is just the beginning of the story, Rule 15 embodies a very liberal amendment policy. Still, the rule after a certain point, that story can't/shouldnt change any further. As a result, the earlier you seek to amend your pleading, the better. Plaintiffs: IF P wants to amend his complaint, P can do so as a matter of right without asking the court or D as long as it is done up to 21 days after receiving Ds response irrespective of whether that response is Ds answer or pre-answer motion. P DOES NOT have to wait for D to respond before he amends; he can do it any time before or up to 21 days after receiving Ds answer This is a one-time shot for P. Rationale: After P receives D's response, he may see some weaknesses in his claim and make one change without seeking permission from the court or D.

Defendants: There are two rules for Ds, namely: a. IF Ds answer contains NO counter-claim, then D can amend once within 21 days of serving his original answer. b. IF Ds answer has a counter-claim against P, then D can amend as a matter of right within 21 days after receiving Ps answer. o After expiration of One-Shot Deal 22

After the deadlines for the one-shot deals have passed or if either party wants to make another amendment, they must seek the other sides permission. o IF the other side declines, the party must seek permission from the court. o Courts are more likely to allow an amendment to a pleading UNLESS the court finds something wrong with the pleading Courts do not like pleadings that parties have sat on for a while Courts would also deny an amendment if there is a potential to surprise the other side e.g. surprising the other side at trial. Courts do not like repetitive amendments especially if they think you have repeatedly been sloppy or lazy Courts are empowered to deny a motion to amend if they think the other side will be prejudiced. What does prejudice mean? o It's NOT that the other side will be hurt but rather with trial preparation time.

NOTE: Two Important Scenarios: a. Normal Scenario: P sues D; D has 21 days to send his answer to P or 21 days from the receipt of service of any motion, such as a pre-answer motion, filed by P. b. P Amends Complaint Before D Gets a Chance to Respond: P sues D. However, before Ds 21 days are up, P amends the complaint. How much time does D now have? D has two options: 1) D can send his answer 14 days after he was served with the amended complaint, OR 2) send his answer within the original time left under the original complaint (21 days from the original pleading); D is free to choose whichever is longer. TRAP: D does not have to answer Ps original pleading, just Ps amended pleading. D cannot waive service of process for subsequent pleadings; D can only waive the original pleading and getting the extra 60-days from the date of the request to waive service.

An Amendment to A Complaint that Adds a Time-Barred Claim Hypo: You hit Prof. C and Prof. C sues you for negligence. A couple years later, Prof. C finds out that you actually hit him intentionally. o However, ordinarily, Prof. C cannot add an intentional tort because of SOL but prof wants to add this claim to get punitive damages. o Rule 15(c): If the time-barred claim arises out of the claim as the original claim, the court is empowered to grant the amendment. This is known as relation-back Rationale: IF the time barred claim arises out of the same claim, there is no reason to give D the benefit of the SOL D CANNOT claim he was tak en by surprise because the first claim automatically gave D notice that P might sue him for another claim relating to the original claim. NOTE: Time-barred means barred by SOL. When analyzing whether a time-barred claim can be added to an original claim, consider factors such as whether there exists different duties, different times, etc.

Defaults (Rule 55) Sometimes a claim can end at the pleading stage. Generally, D has to respond to the complaint within 21 days or 60 days if D waives service. IF D does not respond within this time, D is technically in default. If D fails to respond by a day or two, do not just raise to the court claiming D has defaulted. Definition of Default: The D has failed to plead or otherwise defend the case There is a 2-step process to get a default judgment, namely: i. Entry of default: (i) This is a motion made to the clerk. 23

(ii) When you make the motion, you must include an affidavit outlining why you think D has defaulted. (iii) You must also tell the court the event of default and the paperwork you filed. (iv) After entry of default, it cuts off the time for D to respond to the complaint. (v) The easiest way to get a default judgment, which is what most Ps want, is by asking the clerk to enter the default judgment. (vi) There are basically needed to enter a default: a. Event of default, with damage sum certain b. Complaint c. D has not appeared: D had to have appeared before, e.g. D had to have either answered Ps complaint or communicated with P regarding the claim.

IF the above is not possible, then ii. The court has to enter the default aka default judgment (i) Here, the court determines damages. (ii) Sometimes the court will have jurors to enter damages (iii) D may show up to only contest damages.

What are Ds options if a court clerk has made a default entry against D? You can file a motion to set aside the entry of the default

What if the default judgment has been entered? D can ask the court to vacate the default judgment by claiming the following excusable neglect under Rule 60: Act of God Out of the country Improper service (another reason for excusable neglect) Sickness or incapacity Attorney misconduct, such as Ds attorney being under the influence and not filing the right paper and D was not aware o D basically has to show the court that he has a meritorious defense without which courts wont vacate the default judgment. IF D appears before the default judgment is entered, the court has to give D 7 days before entering the default judgment.

Failure to Prosecute: Rule 41(b) Failure to prosecution Like D, P can default as well, which is called an involuntary dismissal for failure to prosecute under rule 41(b) If a claim is dismissed against P's will, it is called involuntary dismissal. If P brings a meritorious defense and the court accepts, P can continue with the case IF a case is dismissed with prejudice, P cannot file the same case ever again.

Voluntary Dismissal Rule 41(a)(1): By Notice Perhaps P needs more evidence and wants to dismiss or does not like the judge assigned to the case or P and D negotiate settlements, etc. A plaintiff can voluntarily dismiss a case without anyone's permission simply by filing a notice of dismissal before D answers the complaint. * P ONLY gets one shot If P dismisses the second time that second notice is a dismissal with prejudice i.e. P cannot file the case again. 24

Dismissal by consent:

If P and D decide to dismiss the case at the conclusion of settlement, P can file a voluntary dismissal by consent. P just has to tell the court they've settled the case and are dismissing the case by consent. Rule: A voluntary dismissal by consent is without prejudice UNLESS the parties stipulate otherwise. Rule 41(a)(2): By Motion IF P cannot voluntarily dismiss by notice or by consent, then P has to ask permission to dismiss without prejudice under Rule 41(a)(2). It is up to the court. The court would not grant the dismissal if it would prejudice D, maybe D has invested a lot of money in the trial, etc. Any type of practical or legal prejudice is grounds for the court's denial of P's motion for dismissal.

Erie Doctrine/Problem IF there is a conflict between a federal rule of procedure or rule of evidence or any other federal rule, and a state law, then we have to apply the federal statute because the statute was passed by Congress. This ONLY applies to diversity problems IF you have a conflict between a state law and a federal law, check to see what the source of the federal law is. If the source of the federal rule is part of federal rule of civil procedure, etc., then you must apply the federal rule because Congress is responsible for our being the federal courts. This is known as the guided Erie problem. Sometimes the source of federal law is judge-made, which may be in conflict with state law o This is called an unguided Erie problem In this case, ask, if we apply the federal practice, does it change the result of the case? o If the answer is yes, then we apply state law.

Joinder Joinder is something that is effectuated in a pleading i.e. P does it in his complaint. o Example: Suppose P wants to assert multiple claims against D, D has to denominate the claims as claim #1, and claim #2. Similarly, suppose D wants to file multiple claims, he must do so in his answer.

Why would P want to join several Ds? o To minimize expenses because only one trial for all Ds. o To minimize the possibility of getting inconsistent jury verdicts/judgments, which are higher with separate claims as opposed to joint claims

Joinder Triggers A potential joinder problem is triggered where: 1. There is more than claim 2. P sues D asserting more than one claim; no joinder problem if P only asserts one claim against D 3. There is more than one P or more than one D Joinder Analysis

A.

CLAIM JOINDER

Two questions must always be asked and satisfied, namely: 1. Permission: Do FRCP permit the claim or the party to be joined in the action?

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This means there must be specific support in FRCP for the joinder of the claim or the joinder of the party, namely Rules 13, 14, 18, 20, and 21 Rule 18 of FRCP: Allows a party to join a claim. It states that one party may assert as many claims as that party may have against D; the claims need not be related. Exception to Rule 18: Unless a more restrictive FRCP rule applies Rule 13 of FRCP: Talks about counter claims and therefore it is more restrictive than Rule 13. Where D is asserting a counter claim, Rule 13 trumps Rule 18 and therefore you must analyze the Permission element under Rule 13. Two types of Counter Claims under Rule 13(a)

a. Compulsory Counter Claim (CC): A compulsory CC is a claim that arises out of the same transaction or occurrence as P's claim. ***Be careful before concluding that a claim arises from the same transaction as Ps claim***
**D has to assert it in his answer. If D fails to do so, D will be barred from bringing it at a later lawsuit forever**

b. Permissive Counter-Claim: A permissive CC is a claim by D that has no factual relation to P's claim. However, if D wants to assert it in his answer, he can.
How do we know if a claim is compulsory or not? The court says there is a couple of tests, namel y:

1. Does the CC involve the same set of fact or law as P's claim? - If yes, then compulsory 2. Does the CC involve the same evidence as P's claim? -If yes, then compulsory 3. Is the CC logically related to P's main claim? (MAIN TEST) - If yes, then compulsory NOTE: Test 1 & 2 are seldom used because they require discovery before they can be accurately answered. What does "logically related" mean? - Courts interpret the term broadly. HOW EVER, Prof. C believes it basically means the claim arises out of the same common nucleus of operative facts as P's claim. The categorization of whether a counter claim is logically related aka same common nucleus of operative fact is critical because it can help an orphan claim piggy back off of an anchor claim to make it into federal court. o Similarly, if the claim is found not to be logically related, it may be classified as an orphan claim, which would cause the claim to be dismissed. Rule 13(g) deals with cross claims. A CC does not have to be federal question only, it can be diversity based as well. 1. Power: Is there Original SMJ (1331, or 1332 claims) OR Supplemental SMJ? IF claims asserted by one party against another DOES NOT have original SMJ, then the claim has to be dismissed from federal court because it is an orphan claim UNLESS it can piggy back off of an anchor claim i.e. 1331 or 1332. Still, in order for the orphan claim to get in, the orphan claim and the anchor claim MUST BE OF THE SAME NUCLEUS OF OPERATIVE FACTS

B.

PARTY JOINDER

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As is the case with claim joinder, you still must analyze party joinder problems by asking: o Permission: Do the FRCP allow the parties to join?

Rule 20: Says a Plaintiff can join multiple Ds as long as:

a.Their claims arise out of the same transaction or occurrence or series of transactions or occurrences,
AND

b.There is a question of law or fact in common to all the claims. (Important on the exam)
Each claim must also have original SMJ; if not, it must have supplemental SMJ.

Hypo: Suppose P1 is hit by D while P1 is leaving his driveway and he is injured. P1 then calls his friend, P2 to pick him up. W hen P2 later drives P1 to drop P1 off back at his place, the same D hits P1 and P2 but this time only P2 is injured. o Under this hypo, do the two accidents arise out of the same transaction or occurrence? Prof. C. says NO, because they happened at different times, different victims; the only commonality between them is D, which is NOT enough to establish the same transaction element. If a defendant believes there are no grounds for party joinder, D can mak e a motion to sever under Rule 21. The question of whether incidents arise out of the same transaction or occurrence can be a hot debate, such as in the GM case, where there were 10 different Ps wanting to sue GM for various reasons but the court found that the commonality of discrimination made the claims arise out of the same transaction.

o Power: Is there original SMJ or Supplemental SMJ? General Rule: Any claim with original SMJ, such as a 1331 or a 1332 claim can make it directly into federal court. Similarly, if there is an orphan claim, such a state claim, it can ONLY make it if it has an anchor claim and both claims arise out of the same common nucleus of operative facts (SCNOOF). Exceptions to the General Rules of 1367 o 1367(a): Gives supplemental jurisdiction, BUT does 1367(b) tak e it away? o 1367(b): Supplemental SMJ is tak en away IF all of the following three factors are met: 1) The anchor claim is diversity only 2) The Orphan claim is asserted by P 3) The orphan claim is asserted against a party joint under rule 20 or rule 14. IF ALL of these factors are met, then no Supplemental SMJ. IF less than 3 are met, then SMJ is met.

Rationale: This rule ONLY applies to P. Why? Because P pick s the court system, and therefore D should have a broader use supplemental SMJ than P as D is dragged into court by P. Rule 1367(b) Triggers You may have a potential 1367 problem IF: (1) There is an orphan claim asserted by P (2) An anchor claim asserted by a party joined. 1367(b) DOES NOT apply to orphan claims asserted by D. Conversely, 1367(b) ONLY applies to anchor claims involving supplemental jurisdiction.

Impleader: Rule 14 Scope: Rule 14 allows P to sue whoever he wants; he can sue multiple Ds or only one D. However, Rule 14 allows a defendant to drag someone into the lawsuit that has not been named by P, called an impleader. 27

When this happens, D is basically filing a third party complaint against that third party. o There must be PJ AND SMJ over the third party; venue is irrelevant. IF D is impleading a third party AFTER more than 14 days after they have served their answer to P, they must make a motion to the court o The third party must answer When does Rule 14 give D permission to implead a third party D? o RULE: D can implead the third party if the third party will be liable to D for all or a part of P's claim against D. o Therefore, the ONLY time D can drag someone into the case is if D is asserting a claim for indemnification or contribution. This is basically a derivative liability situation; derivative liability means the liability of another person's actions.

*NOTE: If D brings the third party and that third party "destroys diversity," it does not matter because the destruction of diversity is not applicable as a result of the fact that P did not sue that third party. What if D impleads the third party but claims that D did not do it and that the third party did it? This is invalid because it is not an indemnity or contribution claim against third party.

What if D seeks to implead another third party saying that the third party breached their contract by saying that they did something? Just because D blames the third party does not make the claim a valid claim. It is not a derivative claim D must claim that they are entitled to reimbursement.

Rule 14 allows P can amend his complaint to add/assert a claim against a third party defendant, which can be the same defendant that D impleaded, as long as his claim arises out of the same transaction as the Ds. HOWEVER, k eep in mind that EVERY claim asserted by one party against another must have original SMJ; if it does not, it is an orphan claim. 1367(a) gives Supplemental jurisdiction but 1367(b) takes it away.

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