Civil Procedure Outline – 1L

Federal and State Jurisdiction
1 {Section I Jurisdiction}
1. Introductory Survey of
  Civil Procedure
  1. US Constitution
    Article III
    1. Section 1:
      The powers of the United States are vested in one U.S. Supreme
      Court.
    2. Section 2:
      The power of the US Supreme court extends to all cases in law and
      equity arising under the Constitution, the laws of the US (Fed
      Law), and treaties made, cases affecting ambassadors, maritime,
      cases where the U.S. Is a party, issues between 2 or more states,
      between citizens of two sates (diversity), citizens of a
      state claiming land under grants from other states, between a US
      citizen and a Foreigners.
    3. Section 3:
      Treason conviction only on the testimony of two witnesses or a
      confession in open court.
  2. U.S
    Court Structure
    1. State-court
      - Trial Court/Superior
        Ct
        
        Police Court, Small
        Claims Ct, Tax Ct
      - App.
        Ct./Intermediate Ct.
        
        Looser has a right to
        a single appeal
      - Cal.
        Supreme Ct.
        
        Judges appointed
        first term then elected, can be impeached or recalled by a
        popular vote
      - Cases
        can be removed from state court directly to
        US Supreme Ct only if it is a Federal Issue
        and the US Supreme grants cert.
    2. Federal
      Ct
      - Fed District Ct
        
        At least one in every
        state.
        
        Fed trial ct, tax ct,
        Military Ct.
        
        You have a right to
        Appeal to Fed Ct. App.
      - US
        Circuit Ct. App.
        
        13 Circuits, takes
        appeals from Dist. Ct.
      - US
        Supreme Ct.
        
        9 Justices
        appointed for life (impeached by House, removed by Senate)
        
        Chief Just. Roberts,
        Kennedy, Stevens, Scalia, Thomas, Altio, Ginsburg, Breyer,
        Sotomayor
  3. FRCP
    Rules 1 and 3
    1. Rule 1 Scope and
      Purpose: FRCP govern all civil actions in the US district
      courts. The proceedings should be just, secure, speedy and
      inexpensive
    2. Rule 3 A
      civil action is commenced by filing a complaint with the court.
  4. 28
    USC § 1331 – The [federal] district cts. Shall have original
    jurisdiction of all civil actions arising under the Constitution,
    laws or treaties of the United States
  5. § 1332(a)
    1. Fed dist. Cts. Have
      jurisdiction where the amount in controversy exceeds
      $75,000 ($75,000.01 !) AND is between
      - 1 citizens of
        different states,
      - 2 US
        citizens v Foreigners,
      - 3
        citizens of different states where foreigners are additional
        parties; AND
      - 4 a
        foreign sate defined in 1603a
        
        An alien admitted for
        permanent residence is a citizen, FOR THIS PURPOSE, of the
        state that person is domiciled
  6. Civil
    Procedure in Action pg 1-25
    1. Selecting a proper
      court
      - In choosing a court
        you must first determine:
        
        Personal
        Jurisdiction: Jurisdiction over the parties, check for
        minimum contacts with the forum state (Fed OR State
        Ct) AND the party must then receive proper notice due
        process.
        
        Venue:
        The case must be heard in any dist where the D resides OR where
        a substantial portion of the events occurred. (In Fed Ct this
        is one of the 13 districts)
        
        Subject Matter
        Jurisdiction: FEDERAL ONLY (because states have
        universal jurisdiction over any occurrence within the forum)
        
        Diversity: No P is
        of the same state as any D – AND $75,000.01 ($75K alone is not
        enough)
        
        Federal Question:
        Question the US Constitution, Fed treaty, or act of Congress
        (No min $ for fed Question)
    2. Commencing
      the Action…….
Class
2
1. General Jurisdiction
  1. Jurisdiction over the D
    irrespective of the nature of the claim
  2. Claims where the suit is
    unrelated to activity in the forum
  3. Continuous systematic
    activities (Int Shoe)
2. Specific
  Jurisdictional
  1. Jurisdiction because the
    D activities in the state are the subject of the suit
  2. Minimum contacts or
    purposeful availment required
3. Personal
  Jurisdiction:
  1. US
    Constitution Amendment XIV, Section 1
    1. - All persons born and
        naturalized in the United States subject to the jurisdiction,
        are citizens of the US in the state they reside. They shall not
        be deprived of life liberty or property without due process
        of law
    2. Due
      Process: “The protection and enforcement of private rights,
      including notice and the right to a fair hearing
      before a tribunal with the power to decide the case.” – Black’s
      - Proceedings in a court
        to determine personal rights and obligations of parties over
        whom the ct has no jurisdiction do not constitute due process of
        law.
  2. Pennoyer
    v. Neff pg 71-82
    1. Jurisdiction over a
      person is valid by their presence within the forum state.
      - “Territoriality
        Rule” – Every state has power over persons and property
        located within the state and may assert power of any D resident
        or not, by personally serving him summons while he is present in
        the forum state, even if only there briefly. (Exception for
        Special Appearance to contest Jurisdiction)
        
        A state CANNOT obtain
        personal jurisdiction by serving process outside the state on a
        non-resident D
        
        A state CAN establish
        in rem OR quasi in rem if the D owns
        property in the forum state AND the property is legally
        attached (put a sign on the property) giving constructive
        notice that legal action is pending.
      - US
        Supreme HELD that improper assertion of PJ violates a D rights
        to due process under XIV any judgment in violation of due
        process is invalid and unenforceable
      - RULE A court
        may enter judgement against a non-resident only if the D is 1
        served personally while in the forum state OR 2 has property
        within the state that is attached BEFORE litigation establishing
        quasi in rem jurisdiction
  3. Three
    Types of Personal Jurisdiction.
    1. In Personum –
      Personal Jurisdiction over the person who must be served with
      due process. Judgment is not limited and can be enforced in any
      state. Since Pennoyer and still today, if you are present in the
      state you can be sued about anything, even if it has nothing to
      do with the state, as long as you are in the state the Ct has In
      Personum over you. (However if the Ct will follow the substantive
      law of the state the incident occurred in if suit in CA was about
      injury in FL then CA court will use FL law for substantive
      matters)
    2. In Rem – The
      issue is about the property itself eg a claim to title or status
      of the property. Usually land, sometimes property is U.S. v.
      Boxes of Pepsi, Bananas etc.
    3. Quasi in rem –
      The action is not concerning the property but the property
      or debt is seized by attachment and the D will only be liable for
      no more than the property used to gain quasi in rem
  4. Hess
    v. Powloski pg 82-85
    1. Implied consent to PJ
      by operating a vehicle in the state (most states)
    2. This former MA statute
      held that there was jurisdiction over anyone who operated a motor
      vehicle in the state.
    3. Modern theory not
      “implied consent” but the states simply have the right to
      exercise police power to protect their own citizens from crazy
      out of state drivers
    4. HOLDING by
      driving in the forum state you are submitting to PJ and may be
      served process in ANY ACTION arising out of a motor vehicle
      accident. (Where the line to “ANY” action is drawn is anyones
      guess)
    5. Rule: State has
      the power to declare that all non-residents who use its highways
      have impliedly consented to submit to the state’s jurisdiction
      for all actions arising from that highway usage
  5. Kane
    v. New Jersey
    1. Out of state motorists
      must sign a paper consenting to allow a NJ agent to accept due
      process prior to driving on the highways
    2. RULE Motorists
      used to be required to consent to PJ before using the states
      highways
4. Jurisdiction
  over individuals can be established by:
  1. Presence in the
    forum state as long as service is made while the D is within the
    state borders
  2. Domicile where
    the person has his current dwelling place OR has an
    intention to remain/return to the state (You can only have
    one domicile at a time)
    1. Residence Some
      states allow jurisdiction based on residence, you can have more
      than one residence.
  3. Consent
    by waiver of personal jurisdiction “OK fine sue me here”
  4. Driving a car
    within the forum (Hess v Powloski)
  5. Committing a tort
    long arm will allow
  6. Owning property in
    the forum
  7. Conducting business
    with minimum contacts (Int. Shoe Co. v. WA)
  8. Being married to a
    citizen of the forum BUT you must have minimum contacts ie
    a NY father sending his daughter to visit mother in CA is NOT
    minimum contacts sufficient for PJ
Class
3
1. “Personal Jurisdiction”
  over corporations and Others
  1. International Shoe
    Co. v. Washington
    1. Had traveling salesmen
      taking orders for shoes then mail the orders to HQ. Did these
      salesmen submit Int Shoe to PJ in Washington?
    2. Due process requires
      only that the D has minimum contact with the forum state. Minimum
      contacts are found when the entity conducts systematic and
      continuous business within the forum
    3. Purposeful availment
    4. Combined the doctrines
      of Implied Consent (Hess) and Express Consent (Kane) forming the
      MINIMUM CONTACTS Standard
    5. HOLDING Yes
      minimum contacts with the forum state are sufficient to establish
      PJ consistent with Due Process.
      - DISSENT Just Black:
        Wanted a clear cut Rule for fair play
2. Long
  Arm Statutes
  1. Cal Code Civ Pro –
    410.10 and 410.30
    1. 410.10
      A court of this state may excercise jurisdiction on any basis not
      inconsistant with the Constitution of this state or of the United
      States.
    2. 410.30(a) When a court, upon motion by a party or a courts own
      motion, finds that in the interest of justice an action should be
      heard in another forum the court shall dismiss in whole or in
      part.
      (b) Provisions in 418.10 dont apply to a motion to stay
      or dismiss the action by a defendant who has made a genreal
      appearance.
    3. California
      has an “Unlimited” long arm statute the gives power
      over any person or property up to the constitutional limit.
  2. New
    York Long Arm
    1. Also online
  3. Long
    arm statutes provide PJ over non residents who cannot be found and
    served in the forum
    1. Substitute Service:
      Long arms typically allow substitute methods of service since
      in-state personal service is not possible.
  4. Long
    Arm jurisdiction is based on links between the defendant and the
    forum state such as, property, domicile, minimum business
    contacts, tortious acts,driving a motor vehicle etc.
3. Cases
  from 91D-98 99-100 105-119thru n 1
  1. Grey v. American
    Radiator
    1. Exploding Water Heater
      – OH valve → Assembled in PA → injury in IL.
    2. In products liability a
      D who sells products that he knows/has reason to know will be
      used within a forum state he may be required to defend in that
      state if the product causes tortious injury
    3. HOLDING yes the
      OH valve maker is required to defend in IL because the valves
      were frequently and expectedly used in the state of IL
  2. Hanson
    v. Deckla
    1. Donner PA established a
      trust in DE, she then moved to FL and died
    2. Donners daughters
      brought suit in FL regarding the dispersal of the trust.
    3. Defendant’s claimed FL
      had no jurisdiction of DE trust
    4. The DE trust had no min
      contact with FL
      - The cause of action
        doesnt arise out of an act or transaction in the forum state.
      - The DE bank did not
        purposefully avail itself to FL, Donner just moved there.
    5. IF no
      min cont then it doesnt matter how fair it is
    6. HOLDING A court
      cannot excersice jurisdiction where a defendant has only sporadic
      and inadvertant contacts with the forum.
  3. Word
    Wide Volkswagen Corp. v. Woodson
    1. Injured by defective
      burning NY Audi while driving through OK
    2. Brought suit in state
      court against all 3 parties to destroy diversity juris to prevent
      it from being removed to business friendly Federal court.
    3. Defendants made special
      appearance in OK claiming no juris
      - Test for minimum
        contacts to:
        
        Protect the D
        
        Ensure state
        sovereignty
      - Base
        the test on the D conduct in the forum state
      - Purposeful Availment?
        
        Direct acts by the D
        in forum?
        
        Conduct outside their
        own state that would have obvious potential for a suit being
        brought in the forum
      - Fairness
        Test Looks at:
        
        The burden on the D
        
        The forum state’s
        public interest in hearing the case-by-case
        
        The P interest in
        using the forum
        
        Judicial efficiency
        
        Forum’s social
        interest in creating public policy on the issue
      - Interlocutory
        Appeal: an appeal made on a trial court ruling that is made
        before the full trial is over that will send the case directly
        to Appellate Ct. This appeal is permitted if:
        
        The case outcome
        would be determined by the issue
        
        The issue appealed is
        collateral to the merits AND
        
        The matter was
        effectively reviewable if the immediate appeal was not allowed.
    4. HOLDING
      The US Supreme said no juris in OK because the NY dealers did
      nothing to solicit business and the mere foreseeability that the
      car would end up in OK was not sufficient to establish PJ
      - DISSENT Brennan: Used
        the same tests for min contacts but said fairness is more
        important and the WERE MIN CONTACTS because thats fair
    5. Calder
      v Jones – The Calder Test
      - Shirley Jones,
        actress, was libeled by National Enquirer.
      - She
        sued the FL owners in CA Superior Ct.
      - Superior
        Ct granted Calders Motion To Dismiss 12(b)(2) lack of personal
        juris.
      - HOLDING US
        Supreme Ct reverses, gives CA personal jurisdiction. Because the
        “libelous story concerned the activities of a California
        resident…[t]he article was drawn form California sources…and
        the brunt of the harm…was suffered in California”
        
        Committed an
        intentional Act
        
        Aimed at the forum
        state
        
        Caused harm known
        by the D in the forum state
        
        Courts
        warn not to rely too heavily on this
Class
4
1. Long Arm Statutes
  continued….Cases 138-140 n 1 142-148 n 1
  1. Perkins v. Benguet
    Mining Co Ms. Perkins, after messy divorce sues a
    Philippine corporation in OH for dividends and damages arising out
    of shares in the Philippine Co.
    1. D set up shop in OH
      after fleeing the Philippines due to Japanese WWII occupation.
      Uses OH for payroll, holding meetings, etc probably out of his
      garage.
    2. OH district grants D
      12(b)(2) dismiss no PJ
    3. HOLDING US
      Supreme said OH DOES have PJ! Because D had “continuous and
      systematic” activities in OH the court has GENERAL
      JURISDICTION:
      - General
        Jurisdiction is when the claim arises out of activities
        outside of the forum state. In this case the the in personum
        is sometimes called general jurisdiction.
      - Specific
        Jurisdiction is when the in personum jurisdiction is
        granted over activities that DO arise from contacts in the
        state.
      - Perkins Test
        When the Action arises out of activities done outside the
        forum, Due Process requires that the in forum activities be
        “systematic and continuous”
  2. Helicopteros
    Nacionales De Columbia, S.A. v. Hall (US Supreme 1984)
    1. Helicopteros makes K
      with Consorcio to provide transport in Peru
    2. One negotioation
      session with Helicol and Consorcio was in TX at Bell Heli
    3. Helicol trains pilots
      and mechanics, and purchases 80% of its fleet from Bell
      Helicopter in TX
    4. HOLDING US
      Supreme said no Jurisdiction in TX
      - BECAUSE all the
        defendants activities were “mere purhcases” and purchases
        from an in forum entity even if “systematic and continuous”
        is not enough to establish PJ. The wrongful death did not arise
        out of the D in state activities. AND their in state activities
        were not “systematic and continuous” (Failed Perkins
        test!)
      - Brennen DISSENT,
        argues that the action was “related to” the Ds TX contacts
        because the negotiation in TX and the helicopters that crashed
        were bought in TX and the pilot trained in TX, it is only “fair
        and reasonable” to allow TX PJ
2. New
  Technology
  1. Zippo Manuf. Co.
    v. Zippo Dot Com Articulated a “sliding scale”
    balancing test for websites.
    1. Active websites used
      to carry out transactions with the residents of a forum sate. One
      end of scale
    2. Passive websites
      do little more than post information on the web
  2. Pebble
    Beach Co v. Caddy (9^th
    Circuit)
    1. Caddy had dual
      citizenship US/England
    2. Ran
      a bed and breakfast www.pebblebeach-uk.com
      - Passive website, no
        reservation system. Non-interactive.
    3. Pebble
      Beach sues under Lanham Act for TM infringement and Bus Prof Code
      for intentional infringement and dilution
      - Must prove that Caddy
        had “performed some act…or otherwise purposefully availed
        himself” privileges of the forum state.
    4. District
      court grants Caddy’s motion to dismiss 12(b)(2) “lack of
      personal jurisdiction”
    5. HOLDING Judgement
      Affirmed, when a website owner puts up essentially passive
      content website there is no grounds for PJ unless he purposefully
      avails himself to the forum state (Supreme Ct has yet to address
      this, and is still up for state by state consideration)
    6. Reasoning Minimum
      Contacts Test – Three Mandatory Requirements
      - The defendant
        performed some act or transaction within the forum or otherwise
        purposefully availed himself the privileges of conducting
        activities in the forum
      - AND the claim arises
        out of those activities by the D
      - AND exercise of
        jurisdiction is reasonable
  3. Inset
    Systems Inc. v. Instruction Set, Inc. (D.Conn. 1996) A
    website advertisement not directed towards any particular state
    was sufficient to establish PJ in Connecticut
  4. Cybersell,
    Inc. v. Cybersell, Inc. When a website owner puts up
    essentially passive content there is no grounds for PJ
Class
5
1. “In Rem”
  Jurisdiction
  1. Black’s “A court’s
    power to adjudicate the rights to a given piece of property,
    including the power to seize and hold it.”
  2. The issue is about the
    property itself eg a claim to title or status of the property.
    Usually land, sometimes property is U.S. v. Boxes of Pepsi,
    Bananas etc.
2. “Quasi
  in rem” Jurisdiction
  1. Black’s “Jurisdiction
    over a person but based on that person’s interest in property
    located within the court’s territory”
  2. Requires attachment at
    the outset of the action. D liable only for the property located
    within the state. The property is not the subject of the
    litigation but simply collateral to satisfy a possible judgement
3. Harris
  v. Balk (US Supreme 1905)
  1. Harris
    NC $180 –> Balk NC $300 –> Epstein MD
    $180
    ———————————————->
  2. Harris goes to MD to
    visit, while he’s there Epstein sues him to recover the debt that
    Balk owed to Epstein. Asserting quasi in rem over Balks
    debt. MD makes Harris give the $180 to Epstein
  3. Balk then sues Harris in
    NC for the $180 that he just gave to Epstein.
  4. HOLDING supreme
    court found that the quasi in rem over the debt was valid
    in MD and the NC court must give full faith and credit to the MD
    ruling.
  5. NOTES The attachment on
    Harris’ debt probably would violate Balk’s Due Process under
    Shaffer (1977). Could Epstein ave sued Balk in MD?
    Probably IN REM as long as it was applied to MD transaction,
    because his business had established min contacts. IN PERSONUM, no
    because Balk was not Pennoyer present in MD. QUASI IN REM, Yes
    only up to the amount of the debt.
4. Shaffer
  v. Heitner (US Supreme 1977)
  1. P brought a shareholder
    derivative suit in DL on behalf of Greyhound Corp. against 28 of
    Greyhounds non-resident officers and directors.
  2. Shareholder
    derivative suit “A shareholder
    derivative suit is a lawsuit
    brought by a shareholder
    on behalf of a corporation
    against a third party. Often, the
    third party is an insider of
    the corporation, such as an executive officer or director.
    Shareholder derivative suits are unique because under traditional
    corporate law,
    management is responsible for bringing and defending the
    corporation against suit. Shareholder derivative suits permit a
    shareholder to initiate a suit when management has failed to do
    so.” – Wikipedia
  3. None of the violating
    activities took place in DL and main place of business activities
    was at the AZ hq
  4. HOLDING
    court rejected Quasi In Rem
    over the shares of stock because the suit has nothing to do with
    in state property and it is just a slick way to attempt
    jurisdiction over the owner of the stock. This is obvious because
    DL doesn’t allow “special appearance” and this is just a
    sneaky way to force the D to appear submitting to a general
    appearance. Used the “minimum contacts” test from Int
    Shoe to decide that QinRem
    was unsuitable.
  5. Notes:
    In principle this case kills Quasi In Rem in CA because we have an
    expanded long arm statute over anything as long as it is
    constitutional. The court here rejected traditional arguments for
    quasi in rem
    especially the argument that a D should not avoid liability by
    removing his assets to a location outside jurisdiction.
Class
6
1. More on Physical Presence
  1. Burnham v.
    Superior Court
    1. Separated couple (didnt
      finish divorce), Mrs. Vernon takes kids to CA
    2. Mr. Vernon visits kids
      while in CA for business
    3. Mrs. Vernon serves him
      while hes there to get money out of him
    4. Affirmed, a person CAN
      be served if physically in the state even on matters unrelated to
      his reason for being in the state.
2. Consent
  1. Under Pennoyer v Neff
    a D can consent to Personal Jurisdiction.
  2. Rule 12(h)(1) states
    that if you fail to object to PJ in your FIRST 12 defense, then
    you waive it
  3. Carnival Cruise
    Lines v. Shute
    1. Plaintiff opposes suit
      by a passenger who was injured on a cruise, because the tickets
      included a forum selection clause for FL
    2. RULE Forum
      selection clauses are enforceable as long as thy pass the test of
      fairness
      - Passengers saved money
        up front because of forum clause
      - A crusie line
        especially has interest in choosing forum with potentially
        worldwide operations.
3. Challenging
  Jurisdiction
  1. FRCP 12 (b) How to
    Present Defenses.
    1. Lack of subject-matter
      jurisdictional
    2. lack of personal
      jurisdictiona
    3. improper venue
    4. insufficient process
    5. insufficient service of
      process
    6. failure to state a
      claim upon which relief can be granted; and
    7. failure to join a party
      under Rule 19
  2. A
    motion asserting any of these (12(b) defenses must be made before
    pleading if a responsive pleading is allowed. If a pleading sets
    out a claim for relief that does not rewuire a responsive
    pleading, an opposing party may assert at trial any defence of
    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.
  3. 12(g) Joining Motions
    1. Right to Join: A motion
      under this rule may be joined with any other motion allowed by
      this rule.
    2. Limitations 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.
  4. 12(h)
    Waiving and Preserving Certain Defenses
    1. When Some Are Waived: A
      party waives any defenses in Rule 12(b)(2)-(5) by
      - 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 by Rule 15(a)(1)
        as a matter of course.
    2. When
      to raise Others: Failure to state a claim upn 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 under Rule 7(a)
      - B. by a motion under
        Rule 12(c); or
      - C. at trial
    3. Lack
      of Subject Matter Jursidiction: If the court determines at any
      time that it lacks SMJ the court MUST dismiss the action.
  5. Collateral
    Attack: When a separate lawsuit is filed to protest a piece of
    another lawsuit. Typically Habeus Corpus lawsuit, eg was
    Mirandized, unconstitutionally searched, these would be
    colllateral attacks on a crime conviction.
  6. How
    can you sue someone if you dont have PJ?
    1. USE the Long-Arm!
    2. CA Long-Arm: You can
      sue anyone, anywhere as long as its constitutional.
Class
7 {Section II How You Start a Lawsuit}
1. Summons
  1. FRCP 1: Scope and
    Purpose: These rules govern the procedure in all civil actions and
    proceedings in the US district courts, except as stated in Rule
    81. They should be construed and administered to secure the just,
    speedy, and inexpensive determination of every action and
    proceeding.
  2. FRCP 3: A civil action
    is commenced by filing a complaint with the court.
  3. FRCP 4
    1. a. Contents of a
      summons
    2. b. Issuance of a
      summons from the court clerk
    3. c. Service of that
      summons ^
    4. d. waiving service
      - 1. Requesting a waiver
      - 2. Failure to Waive: D
        will incur costs of service
      - 3. Time to answer
        After waiver: 60 days
      - 4. Results of Filing a
        Waiver: no proof of service reuqired
      - 5. Jurisdiction and
        Venue not waived: < even if summons is waived
    5. e.
      Serving an Individual Within a Judicial District of the US
      - 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 US by:
        
        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
        
        Doing any of the
        following
        
        A. delivering a copy
        of the summons and the complaint to the individual personally;
        
        B. leaving a copy at
        the individual’s dwelling OR usual place of abode with
        someone of suitable age and discretion who resides there; OR
        
        Not Office under
        FRCP, In CA-RCP you can deliver to home OR business AFTER
        attempting personal service
        
        C.
        delivering a copy of each to an agent authorized by
        appointment or by law to recive service of process.
        
        (ex Hess said the
        sec of state was aloud to accept service for out of state
        drivers)
  4. FRCP
    Form 3: Is a summons (pg453 Heiser)
2. Notice
  1. Service
    1. Personal Service all
      the way down to constructive notice (publication). In between
      there is a spectrum, mail it, leave at home, business, with mum
      ect. Different jurisdictions require different minimums for
      service, ranging from federal system that says 4(e)(2) that says
      you can satisfy the state where they are or the state where the
      suit is brought (which may be the same, or may not if long-arm)
      or you can leave it with them or at home.
    2. Courts are generally
      lenient for service that isnt served to an agent, probly wont
      throw ot for bad service.
    3. Recently rules have
      been leaning more towards formalism of rules.
    4. The preferred method of
      service now is NO SERVICE by waiver of service 4(e)3), and you
      have 60 days instead of 21 to answer/respond to the service.
      - 60 days from the time
        it was mailed!
    5. Even
      if you respond and say NO i dont waive, you havent been served.
      But you will have to pay for the service
  2. Mullane
    v. Central Hanover Bank & Trust Co.
    1. Central Hanover was the
      trustee of a large estate with pooled assets of a number of
      people
    2. Is notice given to out
      of state parties by publication in a newspaper, when the parties’
      addresses were known, constitutional in light of the Due Process
      Clause of the Fourteenth Amendment?
    3. RULE
      No. Notice given to out of state
      parties by publication in a newspaper, when the parties’
      addresses were known, is unconstitutional in light of the Due
      Process Clause of the Fourteenth Amendment
  3. 4(d)
    Waiving service
    1. Under Rule 4 of the
      Federal Rules of Civil Procedure, the defendant must either
      consent to waive service or be personally served. Service be
      affected by mail only if the defendant does not waive service or
      accept personal service.
    2. Under the new Rule
      4, if the defendant does not reply, there is no basis for
      defaulted judgment, except that the defendant has to pay for
      normal service.
  4. a
    fortiori – a for-she-orie Stronger
    argument.
Class
8 Notice, cont.
1. 217-229
  1. 4(d) specifies
    First class mail, postage prepaid for service.
  2. FedEx has been accepted
    under 5(b) mailing to last known address
  3. 4(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:
    (A)
    delivering a copy of the summons
    and of the complaint to the individual personally;
    (B)
    leaving a copy of each at the
    individual’s dwelling or usual place of abode with someone of
    suitable age and discretion who resides there; or
    (C)
    delivering a copy of each to an
    agent authorized by appointment or by law to receive service of
    process.
  4. National Equipment
    Rental, Ltd. v. Szukhent
    1. Szukhent rented
      equipment from NER
    2. Lease stated Weinberg
      as agent for process, Szukhent doesnt know who Weinberg is.
    3. NER served Weinberg, he
      sent the summons certified mail to Szukhent
    4. HOLDING
      Yes, you may appoint an agent to
      receive service and the service is valid IF that agent promptly
      transmits the notice
    5. DISSENT. Doesnt belive
      the appointment of W as an agent is valid because it was simply a
      name on a form K
  5. 4(h)
    Serving a Corporation,
    Partnership, or Association.
    Unless
    federal law provides otherwise or the defendant’s 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:
    (A) in the manner prescribed by Rule 4(e)(1) for
    serving an individual; or
    (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).
  6. 4(f)
    Serving an Individual in a
    Foreign Country.
    (They are also
    given incentives to waive service in the form of a loner time to
    respond to summons. but they will not be charged for the costs of
    formal service.)
    Rio Properties
    v. Rio Int. – 9^th
    circuit approved service by email for international
    affairs.
    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;
    (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:
    (A) as prescribed by the
    foreign country’s law for service in that country in an action in
    its courts of general jurisdiction;
    (B) as the foreign
    authority directs in response to a letter rogatory or letter of
    request; or
    (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.
2. 231
  (Sewer Service)
  1. When a process server
    provides a false affidavit of service. He never actually serves
    defendant, just throws the paper in the sewer then lies to court
    about it.
3. 231-232
4. 237-239 n1
-10
{Section III Pleadings} When in doubt if
you have a claim JUST PLEAD IT!!!
1. Notice
  Pleading – Just tell the other
  party what you are suing for Purpose of Notice is to give party
  notice
  1. IF you DONT MEET than →
    12(b)(6) FAILURE TO STATE A CLAIM
2. Code
  pleading – required pleading
  facts, not law, very technical
  1. Twombly
    and Ickball have thrown a lot
    of uncertainty into the pleading under federal rules
  2. Extent to which they
    change a very liberal Notice Pleading is unclear
  3. Pure
    notice Pleading WILL NOT satisfy TwomBall
3. .Example
  of Notice Pleading
  1. Dioguardi
    v. Durning
    His pleading is not
    at all clear and was amended a couple times, but the court finds
    his pleading to be good enough
    Claims he lost his 37 bottles of
    imported medicine being held at customs and were then auctioned
    off
    Holding
    As
    long as you present a claim with a cause of action, (NOTICE
    PLEADING) it is ok if you cant quite articulate the claim as long
    as something is presented.
  2. BELL
    ATLANTIC CORP. v. TWOMBLY
    telephone
    used to be a regulated lawful monopoly, it was then broken down
    into smaller regions and separate companies
    Parralelism of
    conduct is not illegal simply sticking to your territory is not
    illegal BUT
    However AGREEING to divide up territories as an
    industry is illegal
    HOLDING
    Complaint, 100 paragraphs
    alleging that the phone companies are sticking to their
    territories
    This is not a cause of action here 12(b)(6)
    Heightened the Pleading Requirement for Fed Civil Claims to
    include enough facts in their
    complaint to make it plausible — not merely possible or
    conceivable

The
Complaint
1. 7(a) PLEADINGS: Only
  these pleadings are allowed
  1. 1. A complaint;
    2. An answer to a
      complaint;
    3. An answer to a
      counterclaim designated as a counterclaim;
    4. an answer to a
      cross-claim;
    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
2. 8(a)
  CLAIMS FOR RELIEF: A pleadng that states a claim for relief must
  contain:
  1. 1. a short and plain
      statement of the grounds for the court’s 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 of different
      types of relief.
3. 9(b)
  Fraud od 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.
4. 10(a) Caption; Names of
  Parties (Document Label)
  1. 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.
5. 10(b)
  Paragraphs; Separate Statements (Number each claim in its own
  paragraph so the claims can be reffered to by number in the answer
  1. 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.
6. 8(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.
  8(e) Construing
  Pleadings.
  Pleadings must be
  construed so as to do justice.
7. 54(c) Demand
  for Judgment; Relief to Be Granted.
  A
  default judgment must not
  differ in kind from, or exceed in amount, what is demanded in the
  pleadings. Every other final
  judgment should grant the relief
  to which each party is entitled, even if the party has not demanded
  that relief in its pleadings.
8. Form 10: Complaint to
  Recover a Sum Certain
9. Form 11: Complaint for
  Negligence
10. Form 12: Complaint for
  Negligence When the Plaintiff Does Not Know Who is Responsible
11. Form 13: Complaint for
  Negligence Under the Federal Employers Liability Activities
12. Form 14: Complaint For
  Damages Under the Merchant Marine Act
13. Form 15: Complaint for
  the Conversion of Property
14. Form 16: Third Party
  Complaint
15. Form 17: Complaint for
  Specific Performance of a Contract to Convey Land
16. Form 18:Complaint for
  Patent Infringement

Class
11 Motions and Defendant’s Answer
1. 1. FRCP 12 (b) How to
    Present Defenses.
    1. Lack of subject-matter
      jurisdictional
    2. lack of personal
      jurisdiction
    3. improper venue
    4. insufficient process
    5. insufficient service of
      process
    6. failure to state a
      claim upon which relief can be granted; and
    7. failure to join a party
      under Rule 19
  2. A
    motion asserting any of these (12(b) defenses must be made before
    pleading if a responsive pleading is allowed. If a pleading sets
    out a claim for relief that does not rewuire a responsive
    pleading, an opposing party may assert at trial any defence of
    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.

RULE
12

Defenses
and Objections: When and How Presented; Motion for Judgment on the
Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

(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:

(A) A
defendant must serve an answer:

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

(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:

(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 court’s 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 the
responsive pleading if one is required. But a party may assert the
following defenses by motion:

(1) lack
of subject-matter jurisdiction;

(2) lack
of personal jurisdiction;

(3)
improper venue;

(4)
insufficient process;

(5)
insufficient service of process;

(6)
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.

(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:

(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);

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

(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.

1. American
  Nurses’ Association v. Illinois
  1. Nurses felt
    discriminated by gender. Didnt draft a very clear complaint, more
    likely that they were afraid the actual facts didnt mactch
  2. They really were
    claiming that men in completely different jobs were making more
  3. Comprable work, suppose
    im an employer i have two jobs
    1. Forklift operator $12
    2. Bookeeper $8 hou
    3. is it sex
      discrimination under the law if most bookeepers are women or most
      forklifts are men? NO not currently
    4. Womens rights have been
      pushing for this.
    5. One fix is to jsut pay
      everyone the same. for every jo
  4. Could
    require 50/50 hiring
  5. Good claim would be
    equal pay for equal work (but nurses were unclear about this
  6. They really claimed
    1. Comprable work should
      be paid the same – WELL WHAT IS A COMPARABLE WORK??? it would
      take a large Czar to determine the millions of options
  7. Reveresed
    and remanded (will probobly loose)
  8. Comprable work claims
    will fail
  9. But if they can show
    evidence for unequal pay for EQUAL work they may have a claim. but
    prob not
  10. Ingraham
    v United State US Ct App 5th Circuit 1987
    Limits
    on medical malpractice
    Argument for – Can cause some
    geographic areas to be devoid of certain practitioners due to high
    malpractice insurance
    When
    in doubt if you have a claim JUST PLEAD IT!!!
    Why
    do you need to plead these defenses from 8c affirmatively?
    In
    med malpractice case you may try to go after damages you know are
    not going to be capped
    Specific denial –> denial of
    fact
    Affirmative defenses –> disputes an issue by
    theoretically adding facts that kill the claim
  11. 8(c)
    RULE 8c
    Requirement
    to affirmatively state any affirmative defense.
    (c)
    Affirmative Defenses
    (1) In General.
    In responding to a
    pleading, a party must affirmatively state any avoidance or
    affirmative defense, including:
    1. accord and
      satisfaction;
    2. arbitration and award;
    3. assumption of risk;
    4. contributory
      negligence;
    5. discharge in
      bankruptcy;
    6. duress;
    7. estoppel;
    8. failure of
      consideration;
    9. fraud;
    10. illegality;
    11. injury by fellow
      servant;
    12. laches; (Unreasonable
      delay in pursuing a right or claim — almost always an equitable
      one — in a way that prejudices the party against whom relief is
      sought — also termed sleeping on rights)
    13. license;
    14. payment;
    15. release;
    16. res judicata; (an issue
      that has been definitively settled by judicial decision)
    17. statute of frauds;
    18. statute of limitations;
      and
    19. waiver.

Mistaken
Designation.
1. 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.

Class
12 Amendment
1. FRCP 15
  1. A.
    Amendments before trial
  2. 1. A party may amend its
    pleading once as a matter of course
    1. A. 21 days after
      serving it OR
    2. B. If the pleading is
      one which a response is required, 21 days after service OR 21
      days after service of a motion under Rule 12(b) (e) OR (f),
      whichever is EARLIER
  3. 2.
    Other amendments: In all other cases, a party may amend its
    pelading only with the opposing party’s written consent or the
    court’s leave [permission]. The court should freely give leave
    when justice requires.
  4. 3. Time to respond:
    Unless the court orders otherwise, any required response to an
    amended pleading must be made within the time remaining ot respond
    to the original pleading OR within 14 days after service of the
    amended pleading whichever is LATER
  5. (b) Amendments During
    and after trial
    1. Based on an objection
      at trial: If at trial a party ojects to evidence as being outside
      the original pleading the court may allow the pleading to be
      amended. The court should allow if it will aid in the merits and
      will not prejudice the parties action or a defense on the merits
    2. For issues Tried by
      Consent: When an issue is tried by express or implied consent it
      will be considered to have been part of the pleading.
  6. (c) An
    amendment Relates back when:
    1. A) the statute of
      limitations allows it to relate back OR
    2. B) the amendment
      asserts a claim or defense from same T/O; OR
    3. C) the amendment
      changes the naming of the party under 15(c)(1)(B)^^ within RULE
      4(m) for serving summons, the party to be brought in
      - (i.) received such
        notice AND
      - (ii) Knew or should
        have know it was supposed to be their name on the complaint
  7. (2)
    When Notice to the U.S. 15(c)(1)(C)(i) and (ii)^^ are SATISFIED IF
    process was delivered or mailed to the US Attorney or designee,
    the US Attorney General or an officer of AttGeneral.
  8. (d) Supplemental
    Pleadings → A court may on just terms allow amendment for an
    event that occurred AFTER the original pleading, and will prob
    require the other party to respond within a specific time
  9. Worthington v.
    Wilson
    1. Complaint against two
      police, because P or his attorney did not know the names they
      files as P v. “unknown police officers” (Probably should have
      named the police chief or department under respondeat superior)
    2. HOLDING because
      Worthington’s failure to name Wilson and Wall was due to lack of
      knowledge as to their identity and not to mistake in their names
      the amendment does not relate back under 15(c)
2. 623-626,
  630-633, 643n4
Class
13 Deterring Abusive Pleadings
1. FRCP 11
  1. (a) SIGNATURE. Every
    pleading, written motion, and paper must be signed by at least one
    attorney, or by the unrepresented party. MUST include ADDRESS,
    EMAIL, and PHONE
  2. (b) Representations to
    The Court: By representing a pleading, motion, or other paper, an
    attorney certifies to the best of his knowledge that the
    information is correct.
    1. It is not being
      presented for improper purposes to harass, delay, or increase
      cost of litigation AND
    2. claims, defenses and
      other legal contentions therein are warranted by law or by a
      non-frivolous argument for extending, modifying, or reversing
      existing law or establishing new law AND
    3. the factual assertions
      have evidential support; AND
    4. the denials of factual
      assertions or warranted on the evidence, OR reasonable lack of
      information
  3. (c.)
    Sanctions
    1. In generalIf after
      notice and a reasonable opportunity to respond the court
      determines that Rule 11(b) has been violated (by FALSE
      REPRESENTATIONs), the court may impose sanctions on the attorney
      or law firm. Absent exceptional evidence the law firm is held
      jointly liable.
    2. Motion for Sanctions:
      must be made separately from any other motion and must describe
      the alleged misconduct that violates 11(b). The motion must be
      served Under RULE 5 (Serving, Filing, And other papers). If
      warranted the court may award the prevailing party attorneys fees
      incured for the motion
    3. On the courts
      initiative may require the attorney/firm to show cause that the
      conduct has not violated 11(b)
    4. Nature of a Sanction:
      Sanction must be limited to what is necessary to deter repetition
      or comparable conduct by others. May include monetary,
      non-monetary, or attorneys fees to other side for the trouble
    5. Limitations on Monetary
      Sanctions, court must not impose money sanctions for:
      - (A) a represented
        party for violating 11(b)(2); OR
      - (B) on its own before
        a voluntary dismissal of the claims
    6. requirements
      for an order, order for sanctions MUST describe the sanctioned
      conduct and explain the basis
  4. (d)
    Inapplicability to Discovery, does not apply to disclosures OR
    discovery requests
2. Surrowitz
  v. Hilton Hotels Corp. (Represented by Mr. Brilliant)
  636-639
  1. 1. Request for sanction
      for violating the RULE 23(b) “complaint shall be verified by
      oath” in shareholder derivative suit because the P old lady
      didnt understand the suit.
    2. HOLDING no
      sanctions nothing indicates that the verification need be that of
      the shareholder
3. Hadges
  v. Yonkers Racing Corp. 640-648, 649n2-651
  1. Issue may the attorney
    be sanctioned for relying on the Jockey’s word AND not disclosing
    the state-court case?
  2. HOLDING No
    because the other side did not properly file the sanction request.
    D did not file a SEPARATE ORDER explaining the sanctionable
    activity AND did not give 21 DAYS TO REMEDY the issue before
    filing the RULE 11 motion with the court.

IV. SUBJECT MATTER JURISDICTION OF THE FEDERAL COURTS

3. Subject Matter Jurisdiction

General
Principles
1. Diversity (different
  citizens diff states) v. Federal Question
2. Amount in controversy
  exceed $75,000
3. Burden the party waning
  to invoke the jurisdiction must make an affirmative showing that it
  is within the courts SMJ (ie the pleading/complaint) must allege
  the SMJ
4. Dismissal at ANYTIME for
  lack of SMJ → RULE 12(h)(3)
Diversity
Jurisdiction § 1332
1. No party on either side
  of the “v.” can be from the same state
  1. Date
    for determining citizenship is as of the commencement of the
    action.
    1. A later change in
      citizenship does not affect (create OR destroy) diversity
  2. Domicile:
    citizenship is DECIDED BY DOMICILE (not residence).
    Domicile is one place where the person intends to stay. To
    establish new domicile you must go there AND intend to stay
    1. Resident alien is
      deemed a citizen of the state he is domiciled in
    2. Presence of a foreign
      citizen (French Guy) or foreign country does not destroy
      diversity.
  3. Complete
    diversity IS REQUIRED (unless specifically excepted)
  4. Pleading not
    dispositive, the pleading itself doesnt determine who exactly is
    an adverse party for diversity, the court arranges parties
    according to their real interest in the litigation.
    1. Nominal
      parties are ignored for diversity ie a guardian suing on behalf
      of an infant (infant’s citizenship decides diversity)
    2. Pete
      Rose v. Giamatti, MLB, C Reds.
      Diversity
      should be established by the major parties ie Giamatti
      in the Pete Rose v. Giamatti,
      MLB, C Reds. not by the
      nominal or formal parties. A nominal/formal party in a genuine
      legal sense has no real interest in the result of the suit.
      Rose
      wants to sue in Ohio, Giamatti wants the case removed to federal
      court.
      Court holds that diversity of citizenship exists
      because MLB and C Reds are at best nominal parties
2. Alienage
  Jurisdiction
  Mexican v. D(American) is considered diversity as
  long as it exceeds $75k
  1. Suit solely among
    foreigners doesnt count as diverse ie Mexican v. Canadian
    1. Resident alien living
      in the US is a citizen of that state for diversity purposes
3. Diversity
  involving partnerships and corporations
  1. Partnerships, Union
    LLCs, LLPs, dont have a single citizenship. It is a citizen of
    each members state of citizenship
  2. Corporation Is a
    citizen where it is incorporated AND its Principal Place of
    Business
    1. Principal
      Place of Business is either:
      1. The Nerve Center –
        Decision making center, corporate HQ, etc
      2. Corporate activities
        test – the location of the production or service activities
      3. Total activity test –
        Hybrid of Nerve and CorpActivities balances the relevant factors
        to see which is weighted more heavily
      4. Hertz
        v. Friend 2010
        says to use the Nerve Center
4. Fabricated
  diversity by “improperly or collusively joined” parties will
  not be tolerated §1359
  1. Assignment: You can not
    “hire” someone else to bring the suit for you
  2. Devices
    to defeat removal to federal Ct there is no statue BUT courts will
    often disregard obvious removal-defeating tactics like joining a D
    that is irrelevant
    1. Low
      Dollar Claim less than $75k CAN
      be used, but must be claimed before removal is requested by D
Federal
Question Jurisdiction
1. Federal Ct has authority
  (not required) to hear Federal Question cases §1331 (if a FQ is
  brought in state court it cannot be removed if D is a citizen of
  that state)
  1. Federal
    Claim: There
    is NO DEFINITION exactly but
    mostly because federal law is the source of the P’s claim.
    1. Interpretation of
      federal law does NOT COUNT. A state based claim that requires
      interpretation of federal law is not a FQ
    2. Claim
      based on the merits If the claim
      arises under Fed Law it qualifies even if the claim is invalid on
      the merits (in the latter case will be dismissed on 12(b)(6)
      failure to state a cliam NOT 12(b)(1) no SMJ
    3. Anticipation
      of Defense does not satisfy FQ
      (Louisville RR v Mottley free train passes)
Amount
in controversy
1. Applies to Diversity ONLY
  must exceed $75,000
2. Standard
  of proof – P only has to show with some
  certainty that it exceeds that
  much
  1. Legal certainty cannot
    be dismissed for lack of amount UNLESS it can be shown with legal
    certainty that the claim is really only for less
  2. Eventual Recovery
    unimportant
3. Most
  courts say it must be worth $75,000 to P (others may look at D
  valuation of the item as well)
4. Aggregation of Claims
  1. Aggregation by a single
    P v. single D: P may add all claims together to make +$75
    1. Aggregation only works
      against a single D and uses supplemental §1367
    2. Additional D: a P who
      has aggregated his claims against one D may not join claims
      agains other D’s UNLESS those claims meet the juris amount
  2. Aggregation
    by multiple P
    1. IF one of the P’s meets
      the amount then other P’s can join as long as same T/O under
      supplemental §1367 (Exxon v. Allapatah)
    2. Aggregation NOT ALLOWED
      IF No single claim meets the amount (unless 2 P’s are asserting a
      single title or right with a common undivided interest)
    3. Class
      Actions in diversity as long as
      one named P meets the +$75K amount then others dont need to
Supplemental
Jurisdiction
1. Under
  SuppJuris some claims might not have to meet SMJ if excepted under
  §1367
  1. § 1367 replaced
    pendent/ancillary jurisdiction
  2. § 1367(a) “In any
    civil action of which the district courts have original
    jurisdiction, the district courts shall have supplemental
    jurisdiction over all other claims of the… same case or
    controversy…[and] shall include claims that involve the joinder
    or intervention of additional parties”
  3. Federal
    Question when the original claim
    is a FQ §1367 allows the court to here ANY same T/O state claims
    1. §1367 Clearly applies
      when it Is the same parties a the FQ
    2. Additional parties
      (same T/O) are also allowed under §1367(a) last sentence
  4. Diversity
    cases
    1. Claims
      COVERED
      under supplemental §1367
      1. RULE
        13(a) compulsory
        counterclaims
      2. RULE
        13(h) joinder of parties
        to compulsory counterclaims
      3. RULE
        13(g) cross-claims by D
        v. D (because it
        necessarily relates to the T/O)
      4. RULE
        14 impleader of
        TPD, for claims by and against TPP, and claims by TPD, but NOT
        claims by original P against TPD
      5. Multiple
        Plaintiffs under RULE 20
        “permissive joinder” (BUT only for juris amount, NOT for
        diversity)
      6. Joinder
        of Plaintiff’s RULE 23
        for class actions (as long as one or more Named P meet
        diversity)
    2. Claims
      NOT COVERED under
      §1367 when only ON DIVERSITY
      1. Claims
        against TPD under
        RULE 14(a)
      2. Compulsory
        joinder under RULE 19(a)
        “joined if feasible” claims against that, nor claims by that
        person.
      3. RULE
        20 Permissive Joinder of
        D’s ex P(NY) is hit by
        D1(NJ) and injured in rescue by D2(CA) → P(NY) v D2(CA) for
        $20k cannot be heard because it is not covered under SuppJuris
      4. Intervention
        Claims by prospective P
        who try to intervene under RULE 24 do not get the benefit of
        SuppJuris
    3. Defensive
      Posture Required Additional
      claims by D’s basically fall under §1367, but additional claims
      (or addition of parties) by P’s is generally NOT given
      supplemental. SO EXPECT
      SUPPLEMENTAL ONLY WHERE THE CLAIMANT TRYING TO BENEFIT IS USING
      IT IN A “DEFENSIVE
      MANNER”
  5. Discretion
    to reject exercise of 1367 because
    §1367(c) gives four reasons why the court may decline
    supplemental jurisdiction. Most often because the original claim
    with SMJ has been dismissed.
  6. No
    effect on PJ 1367 supplemental
    does not eliminate the PJ requirement or the need for valid
    service. Supplemental 1367 Only
    effects SMJ (but often under
    supplemental the 100mi bulge will apply)
    1. Venue
      when supplemental 1367 applies
      Venue will not need to be satisfied for new parties with respect
      to the new party.
REMOVAL
TO THE FEDERAL COURTS
1. Removal
  Generally generally any action
  brought in State Court that COULD have been in Fed Court MAY be
  removed by D
  1. UNLESS any D is a
    citizen of the State court where the diversity action was brought
    (exception for class-actions which may be removed)
  2. Where suit goes: When a
    case is removed it goes to the Federal Court in the district where
    the state-court sits
2. Diversity
  and amount apply in removal for SMJ
3. P
  cannot remove ever ONLY a D may
  remove. A P defending a counterclaim cannot remove.
4. Look ONLY at P’s
  complaint → If injury bills are $100k and P only sues for $60k
  this WILL PREVENT removal by D because the complaint control.
5. Removal
  of Multiple Claims Where P asserts
  against D two claims in state court one of which could be removed
  alone, and the other could not it gets TRICKY
  1. Diversity
    if the basis for removal of the
    second claim is diversity
    then the whole case is barred from removal
  2. Federal
    Question case if the second claim
    is a FQ and the other claim has no independent fed jurisdiction
    then D may remove the whole case § 1441(c)
    1. BUT the Fed Ct can
      remand the state-court claim
    2. AND can even remove the
      FQ if the state claim is found to be the predominate controversy
6. Compulsory
  remand If the federal judge
  concludes that removal did not satisfy the 1441requirements SHE
  MUST remand
7. Mechanics of Removal
  1. Time
    D must file removal within 30
    days of receiving the state-court complaint
  2. All D must be joined in
    removal (except purely nominal ones)
    1. If removed under
      1441(c) “separate federal claim” then only D to the FQ need
      to be on the notice
    2. v. WHOSE LAW?


6. Ascertaining Applicable Law

Nature
of the Problem
1. Generally Cases that can
  be heard in Fed Ct can ALSO be brought in State Ct, BUT what Law
  should be used?
  1. Forum Shopping To
    prevent forum shopping the courts will generally apply state
    substantive law in diversity cases.
  2. Rules of Decisions
    Act § 1652 is based on the supremacy clause tells which law
    to apply: “The laws of the several states, except where the
    Constitution or treaties of the United States or Acts of Congress
    otherwise require or provide, shall be regarded as rules of
    decision in civil actions in the courts of the United States, in
    cases where they apply.”
    1. Federal Applies when
      there is a applicable Constitution, treaty, or statute enacted by
      Congress. ← These all take precedent over state law
    2. State
      Statutes IF there is not a Federal Constitution or Statute on
      Point then → Fed court MUST use the State Statute
    3. Dispute about common
      law If there is NO Fed OR State Statute then follow
      Erie
2. Erie
  v. Tompkins In DIVERSITY cases The Federal Ct MUST apply
  State common law on any Substantive Law issues (This rule is
  contrary to Swift v. Tyson where the Fed could ignore state
  common law)
  1. Erie says that Rules of
    Decisions Act intends to apply State Common Law in Fed Ct
    diversity cases.
Erie
Problems
1. Ascertaining State law
  only easy when the highest state court has recently spoken
  on the issue (It is tricky when only Lower Cts have heard the
  issue). It is up to the Fed Ct to determine how the States Highest
  Ct would see the Issue TODAY!!!
  1. IF there is an
    Intermediate Ct decision then the Fed Ct will generally follow
    this UNLESS there is good reason to believe the St Supreme would
    see the issue differently
  2. IF no state court has
    spoken then the Fed Ct will look to prior Fed Diversity Cases.
    OR the decisions from other state courts.
  3. OLD obsolete
    State Decisions the Fed Court is at its discretion to conclude
    that the State court would hold differently now
  4. Federal Ct (even AppCt)
    must follow any NEW state court decisions even if decided after
    the original Fed Jgmnt
2. Conflict
  of laws Fed Ct must follow State Conflict laws.
  1. Ex P soldiers are
    injured by defective grenades while in Iraq. P dues the
    manufacturer in TX court. TX tort law allows strict liability,
    Iraq does not. Texas state conflict of laws holds that the tort
    law where the accident occurs (Iraq) are applied therefore no
    recovery.
3. Burden
  of Proof The fed court must allow the rules governing the
  allocation of the burden of proof in force in the state where the
  federal ct is sitting
4. Procedural vs
  Substantive distinction Erie v. Tompkins holds that state
  common law controls in “substantive” matters. But federal rules
  and policies control in matters that are procedural
  1. Federal Rules take
    precedence: Erie only applies when there is no controlling federal
    statute because of the RDA → ask (1) Does the rule apply to the
    issue? (2) Is the rule valid under RDA? If yes to both then follow
    federal rule.
    1. Does the rule apply? →
      ex RULE 3 says action “commenced when filed” P files before
      SofL but serves after! KY law says Statute of Limitations
      is satisfied when process is served. Here RULE 3 does not
      specifically address SO STATE Statute Of Limitations law
      must be followed in a Fed Ct therefore the action is too
      late
    2. Is the Rule Valid?
      RDA says the rule Must not “abridge, enlarge, [or[ modify
      the substantive rights of any litigant.” But as long as the
      rule is procedural it will satisfy this test. NO FEDERAL rule has
      EVER been found to violate the “no abridge, enlarge, modify”
      test of the RDA. ie FEDERAL RULES
    3. Illustration P
      sues D in Mass Fed Ct. D is executor of an estate. P serves Ds
      wife by leaving the summons at his dwelling. RULE 4(e)(2) allows
      leaving at dwelling BUT Mass has an exception for service on an
      executor of an estate which says you cant leave with someone
      else. Hanna v. Plumer
      HOLDING follow the Fed
      RULE here because it trumps any valid State Rules
  2. Case
    not covered by a Federal RULE but is still procedural.
    1. Bird v. Blue
      Ridge Rejected a Pure Outcome Determinative Test.
    2. Instead of outcome
      determinative the court now BALANCES which rule is WEIGHTIER.
      Where the state interest is fairly weak follow Fed if the Fed
      policy carries more WEIGHT
      1. Judge/Jury allocation:
        Follow Federal policies
        
        Byrd v. Blue Ridge Is
        the P an employee (workers comp) OR a contractor (tort) Here
        the federal policy is stronger, the state policy is not as
        concerned with the parties rights and the choice is not very
        outcome determinative.
      2. Unanimity
        for Jury trials according to Federal Rules will be applied (as
        apposed to a less than unanimous state jury policy to avoid
        hung). The state policy has little weight here ans is less then
        outcome determinative.
      3. Statute
        of Limitations → FOLLOW STATE SofL because the state’s
        interest is heavily outcome determinative
  3. Federal
    statute (not RULE) on point: The Fed Statute Will Control the
    case.
Federal
Common Law
1. Federal Common law
  still exists BUT Erie makes it clear there is no general common
  law, there are still particular instances when fed common law is
  applied. Fed court can occasionally disregard state common in favor
  of fed common-law
2. Federal Question cases
  → Federal Common Law APPLIES usually
  1. Ex P sues the D(U.S.) in
    TX fed court, the court should apply federal common law here even
    if the US would not be negligent under TX law. So the P would win
3. Diversity
  Case: Occasinally Fed Common can be applied in diversity ie
  when a D asserts a defense that uses federal lawnmower
4. Fed Common Law in
  State Court: States will occasionally be required to use Fed
  Common Law
  1. Ex
    P brings a claim in state court against D(a city) for deprivation
    of civil rights. State law requires claim within 120 days. HOLDING
    state-court may not impose this state rule since it would Abridge
    Federally granted Rights Felder v
    Casey.
  2. VI. JOINDER

8. Multi Party Claims and Litigation

Counterclaims
1. RULE 13 counterclaims are
  either
  1. Compulsory
    1. Arises out of the same
      transaction or occurrence
    2. If you fail to state a
      compulsory counterclaim you cannot bring up in later litigation
      1. If you cant get PJ
        over additional parties then it is not compulsory
  2. Permissive
    1. The counterclaim has
      nothing to do with original transaction.
  3. Default
    judgment may be entered for a counterclaim if the party fails to
    answer RULE 55(a)
2. Claims
  by third parties: a counter claim may be made by any party against
  an “opposing party” RULE 13(a), RULE 13(b)
  1. Third Party Defendant
    can counterclaim against the original D or against any P (if
    against P there must be an original claim against the TPD to
    counter)

By P: a counterclaim to a counterclaim (If D counterclaim is about banana peel, now any claim P has over banana is compulsory)

1. 1. New parties: D in a
    counter claim may bring in another party X on the P side so
    now
    D -v-> XP
2. Subject
  matter jurisdiction: the SMJ for counterclaims depends on
  compulsory/permissive
  1. Compulsory counterclaims
    are covered in supplemental jurisdiction §1367 and require
    NO independent SMJ
  2. Permissive Counterclaim:
    Requires independent SMJ not withing courts supplemental
    jurisdiction
3. Statute
  of Limitations on Counterclaims
  1. Time barred when P sues:
    If D’s claim was time barred already when P sues then probly wont
    fly as a claim (but can probably be used as a defense if it was a
    compulsory)
  2. Time barred after P
    sues: the counterclaim will probably be allowed.
Joinder
of Claims
1. Joinder of claims
  generally: Once a party has made a claim against some other party,
  he may then make any other claim he wishes against that party. RULE
  18(a)
  1. Never Required by RULE
    18(a) however (rules against splitting a cause of action my stop
    you from bringing it later)
  2. SMJ not affected:
    Supplemental under 1367 does not apply to a joined claim.
    (But SMJ probably wont be a problem because P v D can aggregate
    and it will be diverse already)
Joinder
of Parties
1. Permissive
  joinder of Parties RULE 20 – Gives the right of to join (1)
  multiple plaintiffs to join together P P P v D AND (2) P right
  to sue several co-defendants P v D D D
  1. Joinder of P: P may
    voluntarily join together IF
    1. It is a single T/O
    2. OR a common question of
      law or fact
  2. Joinder
    of D: If one or more P has a claim against multiple D same test IF
    1. It is a single T/O
    2. OR a common question of
      law or fact
    3. Joinder of D is ALWAYS
      at the P discretion
2. Jurisdiction
  in permissive joinder cases:
  1. Personal jurisdiction
    must be met for EACH D and each D must be:
    1. Served with process
    2. Ct must have PJ (by min
      contacts)
    3. Long-arm limits: each
      must be amenable to suit. Cts follow the long-arm where
      they sit.
  2. SMJ
    for joinder of parties: All parties joined under RULE 20 must
    meet SMJ supplemental generally doesnt apply to Rule 20 joinder
    of multiple defendants
    1. Diversity MUST BE
      COMPLETE for joinder of parties
    2. Aggregation
      as long a ONE P MEETS the requirement [Exxon Mobil v Allapattah
      Serv In]
      1. Where the RULE 20
        Joinder involves multiple D’s supplemental jurisdiction does not
        apply even for the amount in controversy, EACH D must have
        claims against him meeting the jurisdictional amount
      2. P1 $80k —> D1$15k t/o> D2
        D2 claim must be dropped in Rule 20
        joinder doesnt meet jurisdictional amount requirement
3. Compulsory
  Joinder: situations where additional parties MSUT be joined
  1. Two categories
    1. Necessary parties:
      Less important parties that (1) must be joined if it can be done
      (2) if there are jurisdiction problems with this party the action
      will continue
    2. Indispensable
      Parties: Action must be dropped if this party cannot join
      RULE 19(b)
  2. Necessary
    Defined: a party is necessary – and must be joined if
    jurisdictionally possible – if the party is not “indispensable”
    and either OR of these is met ::
    1. Incomplete relief: In
      the parties absence complete relief cannot be given to the
      parties OR
    2. Impaired interest: The
      absent party has an interest relating to the action, and trying
      the case without them will impair that party’s interest or leave
      one of the current parties open to multiple or inconsistent
      obligations
  3. Indispensable
    Defined: If a party meets the requirement for necessary the
    court will then decide if the party is indispensable
    1. Consequences of
      indispensability: IF indispensable then the action is
      dismissed without this party
    2. Looks to 4 factors
      1. (1) the extent of
        prejudice to the absentee, or those already parties
      2. (2) the possibility of
        framing the judgement so as to mitigate prejudices
      3. (3) the adequacy of
        remedy that can be granted in the party’s absence
      4. (4) whether the P will
        have an adequate remedy IF the action is Dismissed
  4. Jurisdiction:
    Where a non-party who must be joined if feasible does not meet
    jurisdiction or amount in controversy then he cannot be joined
Class
Actions
Intervention
1. RULE 24 you can enter
  yourself into a lawsuit by intervening
  1. Two forms of
    intervention under Rule 24
    1. Intervention of right
      Rule 24(a); and
    2. Permissive intervention
      Rule 24(b)
  2. Distinction
    the intervention “Of Right” no leave of court is required.
    Conversely “Permissive Intervention” requires the courts
    discretion to let the party in.
2. Intervention
  Of Right
  1. Three tests to determine
    IOR must meet ALL:
    1. Interest in the
      subject-matter (ie the property/transaction at issue) AND
    2. Impaired interest: Her
      interest in that ^ property will be impaired if she is left out
      AND
    3. Inadequate
      Representation: She must show her interest is not already
      adequately represented by the existing parties.
      1. NOTE if one of these
        tests fails She May Still get in under 24(a) IF a Federal
        Statute gives her the right (ie the U.S. May intervene in any
        case involving the constitutionality of an act of congress)
  2. Jurisdiction:
    Must meet independent SMJ to intervene based on diversity
    1. Intervention is NOT
      covered by supplemental juris 1367
3. Permissive
  Intervention: The new party merely must have a “claim or
  defense” that involves a “common question of law or fact”
  1. Up to the discretion of
    the trial court, rarely reversed on appeal
  2. Jurisdiction: intervener
    MUST meet independent SMJ

Interpleader

Interpleader allows a
party who owes something to 2 or more people to have them “fight
amongst themselves” to decide who gets the cash.
ex. X
and Y (fighters) both claim ownership of a bank account at Bank Y,
the Bank can tell X and Y to fight each other for it first an then
the bank only has to pay the winner
To avoid double liability

Federal Practice allows
two kinds of Interpleader

Statutory
Interpleader under 28 USC § 1335 AND

Rule Interpleader
under RULE 22

Interpleader Comparison	Statutory § 1335	Rule 22
If no FQ what kind of diversity?	Two or more Claimants (fighters) must be diverse	Regular diversity
Where can service be made?	National service §2361	Ordinary FRCP rules
Jurisdictional Amount $	Exceeding $500	Exceeding $75,000
Must the stakeholder (bank) deposit the amount in dispute with the court?	Yes	No
May the stakeholder (bank) claim that he is not liable to any of the claimants?	Yes	Yes

Federal
Statutory Interpleader § 1335 allows a person holding property
which is or may be claimed by two adverse parties to “interplead”
them to fight it out among themselves
1. Benefits to the
  stakeholder (bank) are nationwide service and relaxed
  diversity
  1. § 2361 You
    “served by the United States marshals for
    the respective districts where the claimants reside or may be
    found” nationwide service
  2. Diversity is satisfied
    as long as two claimants (fighters) are diverse
  3. Amount in controversy
    exceeds $500 (NOT $75k)
2. The
  stakeholder (bank) commences the action and places the property in
  question with the court, OR posts a bond for that amount
  1. Even though the
    stakeholder gives the property to the court he is not estopped
    from claiming he doesn’t owe Either Party!!
3. Restraint
  on other suits: once the interpleader has begun the court can stop
  the claimants from starting OR
  continuing any other action
  anywhere that would affect the property
Rule
Interpleader RULE 22 allowed for
any stakeholder who may face “double or multiple liability”
1. Jurisdiction Rule 22 has
  NO EFFECT on Jurisdiction and Venue Requirements
  1. Complete Diversity
    REQUIRED between stakeholder and claimants
  2. Service: is the same as
    any other diversity action = within the state where the district
    court sits OR according to Long-Arm statute
  3. Amount must exceed
    $75,000
  4. No deposit required for
    the property at issue
  5. The stakeholder may
    deny liability to the claimants RULE 22(1)

x
Impleader (Third Party
P/D)
1. Impleader
  right generally: RULE 14(a) a defendant can implead a party that is
  liable to him for all or part
  of the claim against him from original D
2. Claim must be derivative:
  The TPP may not cliam that the TPD is the ONLY one liable to the P,
  and that he himself (TPP) is not liable at all. BECAUSE the TPD is
  only liable IF the TPP is liable to the original P
  1. Alternative Pleading:
    However the TPP is not precluded from claiming an alternative
    pleading that neither he nor the TPD is liable to the P at all!
  2. Partial Claim: the TPP
    may also claim that the TPD is only liable for a portion of the
    recovery
3. Leave
  of court (Judicial
  permission to follow a non routine procedure)
  NOT necessary for Impleader, AS long as the TPP serves summons and
  complaint to TPD within 10 days of providing his answer to the
  original P’s complaint 14(a)(1). After 10 days the courts
  permission is required.
4. Impleader
  by P RULE 14(b)
  the P can ALSO implead a new TPD
  in response to a counterclaim by the D
5. Jurisdictional
  Requirements SMJ and PJ are
  relaxed for impleaded Third-Parties
  1. 100 mile bulge: service
    may be made within 100 miles of the courthouse even if outside the
    long-arm RULE 4(k)(1)(B)
  2. Supplemental
    Jurisdiction Third Party
    claims/impleader ARE covered under supplemental jurisdiction §
    1367 ie TPD citizenship and amount are irrelevant
  3. served
    by the United States marshals for the respective districts where
    the claimants reside or may be found
  4. Venue:
    As long as venue was proper
    between original parties then no effect with TPD
6. Additional
  Claims involving TPD
  1. Claim by a TPD can
    include (1) counterclaims against TPP permissive/compulsory (2)
    cross-claims against other TPD (3) claims against original P →
    must be same T/O (4) any counterclaim against the P if the P has
    made his own claim against TPD and (5) impleader claims against
    persons not already part of the suit → the impleaded can
    implead!!
    1. Supplemental
      Jurisdiction: All of the above claims ^ are covered by
      supplemental jurisdiction EXCEPT Permissive Counterclaims (1/p)
    2. Defenses: a TPD may
      also raise the same defenses that the original D could have
      raised.
  2. Claims
    by original P → the original P may assert any claims against the
    TPD if same T/O
    1. Jurisdiction: A claim
      by P against TPD must have independent SMJ
7. Dismissal
  of Main Claim: If the main claim is dismissed the court is at its
  own discretion tho hear Third Party Claims that relate to it
Cross-claims
1. Definition
  a claim against a co-party P v P
  is a cross-claim
2. Requirements
  1. Same
    T/O RULE 13(g)
  2. Cross-claim must ask for
    actual relief
    1. ex D1 claims he is
      blameless and D2 is liable for all Ps claims. This is NOT a
      cross-claim, instead it is merely asserting a DEFENSE.
3. Cross-claims
  Never Compulsory
4. Supplemental
  jurisdiction applies §1367

Civil Procedure Outline – 1L

RULE 12

Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

(a) Time to Serve a Responsive Pleading.

(b) How to Present Defenses.

(c) Motion for Judgment on the Pleadings.

(d) Result of Presenting Matters Outside the Pleadings.

(e) Motion For a More Definite Statement.

(f) Motion To Strike.

(g) Joining Motions.

(h) Waiving and Preserving Certain Defenses.

(i) Hearing Before Trial.

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