Civil Procedure
Professor Martin
Personal Jurisdiction
-
Traditional Basis
for Jurisdiction- Pennoyer v.
Neff- Rule: Every
state possesses exclusive jurisdiction and sovereignty over
persons and property within its territory; therefore, the courts
of that state may enter a binding judgment against a non-resident
only if he is personally served with process while within the
state, or, if he has property within the state, if that property
is attached before litigation begins - Reasoning: In a
quasi in rem action such as this, you must attach land at the
beginning of the lawsuit, usually on the same day you file,
because you need to establish jurisdiction before the suit can go
on.
- Rule: Every
-
Overview of Two
Types of Jurisdiction- Subject matter
jurisdiction: The ability of the court to hear a particular
type of case. - Personal
jurisdiction: The ability of the court having subject matter
jurisdiction to exercise power over a particular defendant or
piece of property. The plaintiff seeks to assert PJ through
service of process on defendant (D). Service of process is means
by which court symbolically “tags” the defendant or his or her
property.
- Subject matter
-
Three Type of
Personal Jurisdiction- In Rem: This
action is against the actual property, real or personal, and is
solely about who has ownership over that property. Is a suit of
person against “the world,” to gain power over property. The
property must be located within the physical borders of the forum. - Quasi In Rem:
This action is against the land in order to establish jurisdiction
where cause of action is related to property between specific
parties (i.e. not a person against “the world”) or where cause
of action not related to the property, but property is used to
enforce judgment.- Note: The
basis of the court’s power to exercise in rem and quasi in rem
jurisdiction is the property within the state. The judgment does
not bind the D personally and cannot be enforced against any
other property belonging to the D.
- Note: The
- In Personam:
This action is against the person and the awards are not limited,
and the judgment can be enforced anywhere that the person has
property.
- In Rem: This
-
What is general
jurisdiction?-
Situation where
the suit is unrelated to the in-state activities. -
Continuous and
systematic activities in forum state are required.
-
-
What is specific
jurisdiction?-
Situation where
the suit concerns D’s in-state activities. - Minimum contacts are
needed.
-
- Ways to get
jurisdiction over an individual:- Domicile:
Jurisdiction may be exercised over a person who is domiciled
within the forum state, even if the person is temporarily absent
from the state. A person is considered to be domiciled in the
place where he has his current dwelling place, if he also has the
intention to remain in that place for an indefinite period. - Residence:
Some states allow jurisdiction to be exercised on the basis of
residence in the forum state, even though he is absent from the
state. A person may have several residences simultaneously. - Physical Presence:
Jurisdiction may be exercised over an individual by virtue of his
presence within the forum state. That is, even if the individual
is an out-of-state resident who comes into the forum state only
briefly, personal jurisdiction over him may be gotten as long as
service was made on him while he was in the forum state. (Burnham) - Property:
Many states exercise jurisdiction over owners of in-state property
in causes of action arising from that property. - Consent:
Jurisdiction can be exercised by virtue of her consent, even if
she has no contacts whatsoever with the forum state. Consent can
either be implied (Hess) or explicit (Kane). - Tortious acts
committed in state: Many states have statutes allowing
their courts jurisdiction over persons committing tortious acts
within the state. Some of these “in-state tortious acts”
long-arm clauses have been interpreted to include acts done
outside the state which produce tortious consequences within the
state. (Gray) - Conducting
business: States often exercise jurisdiction over
non-residents who conduct business within the state. Since states
may regulate an individual’s business conduct within the state,
they may constitutionally exercise jurisdiction relating to that
doing of business. - Domestic relations
cases: Courts sometimes try to take personal jurisdiction
over a non-resident party to a domestic relations case. However,
the requirement of “minimum contacts” applies here (as in
every personal jurisdiction situation) and that requirement may
bar the state from taking jurisdiction. (Kulko)
- Domicile:
- The Role of the
Constitution in Establishing Jurisdiction- Full Faith and Credit
Clause – “Full faith and credit shall be given in each
state to the public acts, records and judicial proceedings of
every other state”. Once congress authenticates such acts,
records, and proceedings, “they should have such faith and
credit given to them in every court within in United States as
they have by law, or usage, in the courts of the state from which
they are or shall be taken.” - 14th Amendment –
Due Process – “Proceedings in a court of justice to determine
the personal rights and obligations of parties over whom that
court has no jurisdiction do not constitute due process of law.”
- Full Faith and Credit
- Pennoyer v.
- Expanding the Bases
of Personal Jurisdiction
-
- Express Consent
– Kane v. New Jersey- Expressed consent to
jurisdiction over matters arising from a party’s activity within
the state by requiring an out-of-state motorist to file a formal
instrument appointing a New Jersey agent to receive process prior
to using the state’s highways.
- Expressed consent to
- Implied Consent
– Hess v. Pawloski- 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 - Policy reason:
“Motor vehicles are dangerous machines, and, even when
skillfully and carefully operated, their use is attended by
serious dangers to persons and property. In the public interest,
the state may make and enforce regulations reasonably calculated
to promote care on the part of all, residents and non-residents
alike, who use its highways.”
- Rule: State
- Express Consent
-
A New Theory of
Jurisdiction- International
Shoe Co. v. Washington- Rule: A
corporation will be subject to the jurisdiction of any state with
which it has “minimum contacts” that make the exercise
of jurisdiction consistent with “traditional notions of fair
play and substantial justice“. - Reasoning: State
has jurisdiction based on location. First, location is presence
in general, asking whether or not corporation does a fair amount
of business in the state. “Minimum contacts” with the
forum state is sufficient to sue corporation so long as it is
“fair and reasonable“. Second, presence at the time of
the tort, asking whether or not the corporation was receiving
benefits from the forum state at the time of the tort.
Corporation receiving benefits from laws of forum state should be
subject to that state’s jurisdiction.
- Rule: A
- International
- Specific
Jurisdiction and State Long-Arm Laws- The Development of
Long-Arm Laws- Long-arm statutes seek
to provide personal jurisdiction over nonresidents who cannot be
found and served in the forum.- Substitute
service: Long-arms typically provide for substitute means of
service, since in-state personal service is not possible.
- Substitute
-
Long-arm
statutes allow jurisdiction on the basis of certain links between
the defendant and the forum state, such as domicile, ownership of
property, commission of a tortious act, etc. -
Out-of-state
acts with in-state consequences: Many states long-arms explicitly
cover acts done outside the state with in-state consequences, and
where they do not, courts can interpret the statute to be read as
such. -
Unlimited
long-arm statutes: A few states, such as California, have long-arm
statutes that given their courts power over any person or property
which the state can constitutionally exercise jurisdiction. - Long-Arm Statute
Test:- Is there a
long-arm statute? - Is it
constitutional?
- Is there a
- Long-arm statutes seek
- The Development of
-
Analyzing Personal
Jurisdiction Problems- Was D present in
the forum state when process was served on him?- Burnham v.
Superior Court- Rule: The DPC
does not deny a state jurisdiction over a person personally
served with process while temporarily in a state, in a suit
unrelated to his activities in the state. (Need to show minimum
contacts to get 8 judges)- 3 Justices
(Scalia, Kennedy, Chief Justice) say a state can have
jurisdiction over persons physically present in state. - 4 Justices
(Brennan, Marshall, Blackmun AND O’Connor) say there must also
be minimum contacts per Shaffer. (Concurred with judgment
because thought there was minimum contacts) - 1 Justice
(White) says it doesn’t matter because the rule is service
alone is sufficient to gain personal jurisdiction. - 1 Justice
(Stevens) is on the fence because the parties didn’t introduce
the issue.
- 3 Justices
- Rule: The DPC
- Note Case: Quill
v. North Dakota- Holding: DPC
did not prohibit a state court from asserting personal
jurisdiction in a suit brought by the state to enforce its use
tax against an out of state mail order house with no outlets or
sales reps in the State. Contacts with instate consumers and
mail were sufficient because the goods were used in the state - Rule: DPC does
not require physical presence in the forum state to collect tax.
- Holding: DPC
- Burnham v.
- Does the forum
state’s long arm statute provide for jurisdiction over D?- Substantial
connection?- Yes – Gray
v. American Radiator & Standard Sanitary Corp. (S.
Ct. of Illinois, 1961)- Holding/Rule of
Law: D manufactures valves in State A and sells them to a
heater manufacturer in State B. The heater manufacturer
incorporates B’s valves into its heaters and sells in States
C, D, and E. Valve explodes and injures P in State E. D is held
liable because it knew that some of the valves it manufactured
would go to State E and expected to be protected by the laws of
State E. The International Shoe minimum contacts requirement is
satisfied even when a corporation conducts no business within a
state, so long as the act giving rise to the lawsuit has a
“substantial connection” to the state
- Holding/Rule of
- No – Note Case:
Green v. Advance Ross (1981) – Illinois
long-arm statute that said an out-of-state resident submits to
the jurisdiction of Illinois when he commits a tort that cause a
diminution of the funds of a Illinois corporation was
unconstitutional because it would allow corporations to bring
people in to Illinois courts no matter how remote their
connection with the forum. IL Supreme Court distinguishes itself
from Gray
- Yes – Gray
- Substantial
- Is any of the
following true?- D is domiciled in the
forum state. - D has consented to be
sued in the forum state. See Another Base of Jurisdiction:
Consent - D owns property in
the forum state. See Jurisdiction Over Property - D regularly transacts
business in the forum state. (These contacts are so
completely voluntary and unambiguous that they automatically
constitute minimum contacts and entitle the state to exercise
personal jurisdiction over D, whether the claim relates to D’s
in-state activities or not.)
- D is domiciled in the
- Are at least some
of D’s contacts with the forum state voluntary? - Does the cause of
action arise out of or relate to D’s contacts with the forum
state?- If yes, go to F.
- If no, are D’s
contacts with the forum state “systematic and continuous”? - Yes – Perkins
v. Benguet Consolidated- Holding: The
mining company president’s in-state activities were held to be
extensive enough so that Constitutional due process neither
prohibited nor compelled Ohio’s jurisdiction over the mining
company; the matter was left to the courts. - Rule: The court
held that where the cause of action does not arise from business
done within the forum state, Constitutional due process requires
that the in-state business actually conducted be so systematic
and continuous as to make it not unjust that the corporation be
forced to defend a suit there.
- Holding: The
- No –
Helicopteros Nacionales v. Hall- Rule:
Negotiations and purchasing in the forum state do not constitute
continuous and systematic contacts sufficient to satisfy the
requirements for general in personam jurisdiction. - Reasoning:
Sending the CEO for contract negotiations, accepting checks drawn
on Houston bank, purchasing helicopters equipment and training
services in Fort Worth, and sending personnel there for training
are insufficient for general jurisdiction. - Dissent: Brennan
believes Helicol’s purposeful availment of the benefits and
obligations of Texas constitute sufficient minimum contacts to
make it fair and reasonable for the State to assert jurisdiction
over Helicol. The undisputed contacts between Helicol and Texas
are sufficiently related to the underlying cause of action, and
jurisdiction does not offend traditional notions of fair play and
substantial justice. Because of their participation in
interstate and foreign commerce, Helicol should reasonably expect
to be called into Texas for litigation, based on the doctrine of
general jurisdiction. Also, he believes that the wrongful-death
claim is sufficiently related to the contacts between Helicol and
Texas to warrant specific jurisdiction.
- Rule:
- No – 15,000
Magazines Per Month Not Enough To Be Systematic and Continuous –
Note Case: Keeton v. Hustler Magazine- Hustler sold 15,000
copies of a magazine a month to the forum state, but the court
would only hold that this—though continuous and
systematic—GENERAL jurisdiction would not occur-only specific.
- Hustler sold 15,000
- No – Contacts
Must Be Overwhelming – Note Case: Fisher Governor Co. v.
Superior Court- Similar to Keeton –
Sales and sales promotion to a state by independent, no exclusive
representatives are not enough to assert general jurisdiction.
This case makes clear that there needs to be an overwhelming
number of contacts for general jurisdiction.
- Similar to Keeton –
- Yes – Note
Case: Frummer v. Hilton Hotels Int’l, Inc.
- When two
corporations are interlocked in ownership thereby creating an
agency relationship between the two, but are in different
countries, either company can be sued in either country.
- When two
- No – Note Case:
Ratliff v. Cooper Laboratories, Inc.- Drug manufacturer
case. When the plaintiffs are non-resident of the state, the
defendants have their principal places of business outside of
that state and are incorporated outside that state, the action
arises outside of that state, general jurisdiction cannot be
obtained.
- Drug manufacturer
- Are D’s contacts
with the forum state sufficiently great that they should be deemed
“minimum contacts”?- Minimum Contacts
Rule: 2 part analysis - Purposeful Availment
& Foreseeability- D’s contact with the
forum must result from his or her purposeful availment with that
forum. Contact cannot be accidental. D must reach out to the
forum in some way, such as to make money or use roads. - Contacts that exist
only through unilateral acts of 3rd parties are
insufficient. - Rationale: It is unfair
to non-resident D to defend in forum state unless, given his
purposeful activities, he could reasonably foresee being haled
into that state’s courts. - D must have
purposefully availed self of privileges of conducting activities
in forum state, thus invoking the benefits and protections of its
laws. - Among the facts
considered significant in analyzing purposeful availment
are- Soliciting
business in the forum state - Having offices
and/or employees in forum state - Visiting the forum
state in connection with the events leading to the litigation - Entering into a
contract- With a party in
the forum state; and/or - That calls for
some aspect of its performance in the forum state; and/or - That calls for
application of the forum state’s law; and/or - That contemplates
long-term relationship with someone in forum state - Owning/renting
property in forum state - Deriving revenue
from forum state - Sending/receiving
mail, email, calls, or faxes to/from forum state - Engaging in
intentional and harmful conduct, the effects of which are felt
(targeted toward?) the forum state
- With a party in
- Soliciting
- No – Because
Unilateral Act by Third Party – Hanson v. Denckla- Holding/Rule of
Law: The Delaware trust company has no office in Florida,
and transacts no business there . . . The record discloses no
solicitation of business in that State either in person or by
mail. The unilateral activity of those who claim some
relationship with a nonresident cannot satisfy the requirement
of contact with the forum state. There must be some act by which
the defendant purposefully avails itself of the privilege of
conducting activities within the forum state, thus invoking the
benefits and protections of its laws.
- Holding/Rule of
- Yes – When
Contract Ties Parties’ Business Activities to Forum State Will
Tend To Show Minimum Contacts- Burger King v. Rudzewicz- Holding/Rule of
Law: This franchise dispute grew directly out of “a
contact that had a substantial connection w/ that State.”
The parties’ repeated course of dealing confirmed that
decision-making authority vested in Miami. The court held that
by signing the contract with the provision regarding Florida
law, the defendant had purposefully availed himself of the
benefits and protections of the forum state’s laws. A
party who establishes purposeful minimum contacts with a state
is subject to that state’s exercise of personal jurisdiction
over him. Further, choice-of-law provision D signed means that
in an agreement, the parties agree to apply the law of a forum
state. Standing alone, the provision would not be sufficient to
establish jurisdiction to bring suit in that state. However,
because the agreement is accompanied by a relationship and
contacts within that state, there would be jurisdiction in the
forum state.
- Holding/Rule of
- Yes – If
Manufacturer Knows Product Will Eventually Be Sold In Forum
State, Should be Enough for Minimum Contacts –Asahi
Metal Industry Co. v. Superior Court (HOWEVER,
SEE FAIRNESS SECTION)- Rule: The
defendant must purposefully avail himself of the forum by more
than just putting a product into the stream of commerce with the
expectation that it will reach the forum state, however, such
conduct is enough to satisfy the minimum contacts requirement.
Nonetheless, once it has been established that minimum contacts
exist, the fairness requirement must still be met as well, which
will be much harder to do in the case of a non-U.S. resident. - Reasoning:
- O’Connor’s 4
require knowledge that the stream of commerce will move
the product into the forum state’s market plus additional
conduct such as advertising or marketing in that state or
deliberately designing product for that state. Although there
are minimum contacts, exerting jurisdiction over Asahi would
offend traditional notions of fair play and substantial justice
such that jurisdiction is improper. - Brennan’s 4
disagree with O’Connor that additional conduct is needed.
Knowledge that the product with end up in the forum state is
enough to exert jurisdiction over defendant. However, they
agree with O’Connor that jurisdiction is improper in this
case because it would offend traditional notions of fair play
and substantial justice. - Stevens: “I
would be inclined to conclude that a regular course of dealing
that results in deliveries of over 100,000 units annually over
a period of several years would constitute ‘purposeful
availment’ even though the item delivered to the forum State
was a standard product marketed throughout the world.”
- O’Connor’s 4
- Rule: The
- No – Adopted
O’Connor’s Purposeful Availment Test – Note Case: Rodriguez
v. Fullerton Tires Corp. v. Custom Metal Spinning Corp.- “Even assuming D had
specific knowledge that the stream of commerce would move its
tire rims into Puerto Rico, this awareness alone would not be
enough to constitute the purposeful availment that is necessary
for a showing of minimum contacts.”
- “Even assuming D had
- Misapplication
of Asahi – Note Case: Parry v.
Ernst Home Center Corp.- Japanese co.
makes a maul, given to CA corporation, goes to Idaho retailer
(D), where Linda buys it, takes it to Utah to give to dad, who
lets friend borrow it & friend (P) is injured in Utah while
splitting logs. Court found that there was no jurisdiction here,
because as in Asahi, company didn’t have the additional
conduct necessary to sell product in Utah or Idaho.
- Japanese co.
- Yes – Phone
and Mail Contacts Enough – Alchemie International, Inc.
v. Metal World, Inc.- Mail and telephone
contacts, seen as “significant contacts” with plaintiff,
were enough to establish jurisdiction when those contacts had
solicited, executed, and allegedly breached a substantial
commercial contract.
- Mail and telephone
- Yes – One Act –
Specific Jurisdiction – McGee v. International Life
Insurance Co.- Rule: A
state may exercise jurisdiction over a defendant whose contacts
with that state consist of only a single act, provided that that
act is what gave rise to the claim for which jurisdiction is
being sought, and was deliberately directed toward the state. - Reasoning:
Commerce has become more nationalized and contracts are
increasingly between states. Given the nature of the insurance
business, small policy holders would be denied justice if forced
to file suit in a foreign jurisdiction. Also, the fairness
factor of the insurance company having to come out to California
is outweighed by California’s interest to protect its
citizens. And, because the company had a policy in CA and
because they communicated with the policyholder in California,
they could foresee being haled into court there.
- Rule: A
- No – Simply
Causing an Effect in FS Not Enough – Kulko v.
Superior Court- Rule: A
state may not exercise jurisdiction over a defendant who has not
purposefully availed himself of the benefits of that state, even
if the state has a strong interest in the litigation. - Reasoning:
“Merely causing an effect within the forum state without
purposeful availment will not support jurisdiction. There is no
claim that the defendant has visited physical injury on either
property or persons within the state of California. The cause
of action here asserted arises from personal relations, not
business relations.”
- Rule: A
- Effects Test –
Note Case: Harris Rutsky Co. Insurance Services v. Bell
& Clements Ltd.- D must have 1)
committed an intentional act, 2) expressly aimed at the forum
state, 3) causing harm, the brunt of which is suffered – and D
knows is likely to be suffered – in the forum state.
- D must have 1)
- Yes – First
Amendment No Protection – Note Case: Calder v. Jones
- P was entertainer
defamed by National Enquirer. NE claimed no personal
jurisdiction and Superior Court agreed on the ground that First
Amendment concerns outweighed jurisdictional concerns. Supreme
Court disagreed and said there was no trouble finding NE could
foresee being haled into court in CA.
- P was entertainer
- No –
Foreseeability Alone Not Enough – Must Be Effort As Well –
World-Wide Volkswagen Corp. v. Woodson- Rule: In order
to be subject to a state’s jurisdiction, a defendant must have
chosen to come contact with that state; considerations of
fairness, convenience, and the interests of the state in
overseeing the litigation are otherwise irrelevant. - Reason: The
unilateral activity of bringing a product into a state is not
enough for that state to have jurisdiction. Foreseeability
alone has never been enough under the Due Process Clause; what
is critical to due process is rather the foreseeability of being
sued in the forum state. Minimum contacts must be based on some
act committed by the defendant and the defendant must have
chosen to purposefully avail itself of the forum state. The
Court is trying to protect people from being pulled into court
in a forum state where they had absolutely no contact and
purposely chose to have no contact. If we ignored the minimum
contacts rule, WWV could be sued anywhere because a car they
sold in NY might have foreseeably be driven in another state,
even if WWV made a conscious decision not to sell in that state
and never had any contact whatsoever with that state. - Policy reason:
If foreseeability alone is enough, then the defendant can be
sued everywhere. - Dissent: Brennan.
The defendant need not deliberately seek contacts with the
state if defendant has some contacts with the state, especially
with regards to cars and its mobile nature. Considering factors
other than extensiveness of defendant’s contacts, such as
fairness and convenience of the plaintiff, it is reasonable to
subject the defendant to the forum state’s jurisdiction.
Fairness factors include efficiency of forum court, location of
evidence in forum state, plaintiff’s hospitalization in forum
state, the minimal inconvenience suffered by defendants in being
required to defend themselves in the forum state.
- Rule: In order
- D’s contact with the
- Internet Cases –
Active v. Passive Websites- Yes – Sending
Tortious Emails to FS – Bellino v. Simon- Personal jurisdiction
is not exercised on Spence based on one unsolicited telephone
call from forum state to nonresident Spence. Although allegedly
defamatory comment made by Simon first occurred during the
telephone call made by Aubert, this phone call resulted from
several email communications which, in a broad sense, Simon
initiated through his website. Simon affirmatively directed the
allegedly tortious emails to Louisiana. Although FDS (Simon’s
company) and Bellino do not live in LA and would therefore have
to defend suit there, the principal witness Aubert is in
Louisiana and the effect of the tortious activity was felt in
Louisiana. Therefore, this does not offend “traditional
notions of fair play and substantial justice”.
- Personal jurisdiction
- Yes – Note Case:
Inset Systems, Inc v. Instruction Set, Inc.- Internet website
advertisement operated by non-resident sufficient to establish
personal jurisdiction under purposeful availment test. Since
then, courts have been reluctant to find jurisdiction based
solely on the existence of website advertisements.
- Internet website
- No – Note Case:
Cybersell, Inc. v. Cybersell, Inc.- Need something more
than maintenance of website to show that defendant purposefully
directed activities at the forum.
- Need something more
- Sliding Scale
Test – Note Case: Zippo Mfg. Go v. Zippo Dot Com, Inc.- The court articulated
what has become known as the ‘sliding scale’ test, under
which ‘the likelihood that personal jurisdiction can be
constitutionally exercised is directly proportionate to the
nature and quality of commercial activity that an entity
conducts over the Internet.’ - “Active”
websites: If defendants conduct business over the Internet
with residents of a particular forum through these websites, the
assertion of jurisdiction is almost always proper. - “Interactive”
websites: The sliding scale becomes relevant in these cases
where a user is permitted to exchange information with a host
computer; the debate is over this middle ground. “The Supreme
Court has yet to consider the issue of personal jurisdiction
based upon Internet contacts.” - “Passive”
websites: If defendants do little more than make information
available to those who are interested, there are rarely grounds
for the assertion of personal jurisdiction.
- The court articulated
- No – Note case:
Hycite Corp v. Badbusinessbureau.com, L.L.C- Court didn’t follow
test articulated in Zippo. They stated cannot determine whether
P.J. is appropriate by deciding what type of website it is
(passive or active). Contacts through the website must be so
substantial that they may be considered “continuous and
systematic” for the purpose of general jurisdiction.
- Court didn’t follow
- Yes – Online
Contracts are Purposeful Availment – Note Case: Compuserve,
Inc. v. Patterson- Court held that D
purposefully perpetuated a relationship with Compuserve via
repeated communications with its system in Ohio by entering into
a written contract with Compuserve and choosing to transmit his
software to Compuserve’s system in Ohio so that others gained
access to his software via that system.
- Court held that D
- Yes – Sending
- Minimum Contacts
- Is jurisdiction
fair and reasonable?- Fairness Factors
(as spelled out in Burger King)- Burden on the D
– multiple concerns including relative health and/or wealth of
the D. Forum easily reached? Will case come to trial quickly in
this forum? Almost any factor that can be argued. - Forum state’s
interest – The forum state may have a legitimate interest
in providing redress for its residents. - Plaintiff’s
interest – similar to Burden on D – lack of truly
available alternative forum, lack of adequate discovery or other
procedural benefits in another forum or unfavorable choice of
law. - Convenience
– The forum is constitutionally acceptable unless it is “so
gravely difficult and inconvenient that a party is unfairly put
at a severe disadvantage in comparison to his opponent.” This
is a very difficult standard to meet and D will usually not be
able to meet it simply by showing that P has superior economic
resources. - Shared interests of
several states – directs concern to the risk of
arbitrariness in allowing one forum to advance its public
policies by adjudicating a case touching many states and
implicating their public policies also. - From Asahi –
foreign policy – “unique burdens placed upon one who must
defend oneself in a foreign legal system”
- Burden on the D
- Qualifications to
fairness factors:- If minimum contacts are
clearly found then D must present a “compelling case that the
presence of [these factors] would render jurisdiction
unreasonable.” Burger King - If fairness factors
are found, then the court is willing to fudge a bit on the
minimum contacts. They can be REALLY LOW. “These
considerations sometimes serve to establish the reasonableness of
jurisdiction upon a lesser showing of minimum contacts than would
otherwise be required.” Burger King
- If minimum contacts are
- No – The More
Burdensome It Is For Defendant & the Slimmer the Contacts,
More Likely It Is To Be Unreasonable –Asahi Metal
Industry Co. v. Superior Court- Rule: The
defendant must purposefully avail himself of the forum by more
than just putting a product into the stream of commerce with the
expectation that it will reach the forum state, however, such
conduct is enough to satisfy the minimum contacts requirement.
Nonetheless, once it has been established that minimum contacts
exist, the fairness requirement must still be met as well, which
will be much harder to do in the case of a non-U.S. resident. - Rationale: A
consideration of the facts reveals the unreasonableness of an
assertion of jurisdiction over Asahi, even apart from the
question of the placement of goods in the stream of commerce.
Considering the international context, the heavy burden on the
alien defendant, the slight interests of the plaintiff and the
forum state, the exercise of personal jurisdiction by a CA court
over Asahi would be unreasonable and unfair.
- Rule: The
- Yes – Burger
King Corp. v. Rudzewicz- Rule: Once
it has been established that the defendant has minimum contacts
with a state, it is up to the defendant to prove that being
required to defend a suit there would be “fundamentally
unfair”. - Reasoning:
Minimum contacts give the presumption of jurisdiction unless the
fairness factors are so overwhelmingly in opposition to
jurisdiction. - Dissent: Stevens
stresses due process concerns of the defendant rather than the
forum state’s interest in the litigation.
- Rule: Once
- Are Fairness
Factors Applicable in Cases of General Jurisdiction? Note Case:
Metropolitan Life Insurance Co. v. Robertson-CECO Corp.- The Second Circuit held
that the exercise of general jurisdiction was unreasonable in
light of the five-factor Asahi test, but other courts have
not consistently applied this approach.
- The Second Circuit held
- Fairness Factors
- Another Basis of
Jurisdiction: Consent- Waiver – Failing
to raise an objection regarding jurisdiction either in your answer
or to make a 12(h)(1) motion at the appropriate time.- Insurance Corp.
of Ireland v. Compagnie des Bauxites de Guinee- Rule:
Failure to comply with jurisdiction related discovery may
constitute implied consent to jurisdiction. - Rationale: By
submitting to the jurisdiction of the court for the limited
purpose of challenging jurisdiction, D agrees to abide by that
court’s determination on the issue. P was seeking through
discovery to respond to D’s contention that there was no
personal jurisdiction. Having put the issue in question, D did
not have the option of blocking reasonable attempt of P to meet
its burden of proof.
- Rule:
- Insurance Corp.
- General
Appearance – If D appears and presents defenses or
objections other than those regarding jurisdiction, he has
consented to personal jurisdiction. - Counter-claim
– If non-resident plaintiff is hit w/ counter claim he has
consented to personal jurisdiction. - Implied
- In doing business with
the forum state, there is implied consent to personal
jurisdiction in that state through the state’s long-arm
statutes. This “fiction” of consenting to jurisdiction
through business requires that the business have minimum contacts
with the forum state (International Shoe). The state’s
long-arm statute might authorize jurisdiction, however, the
jurisdiction must also be Constitutional. - Ratliff v.
Cooper Labs., Inc. – “Applying for the privilege of
doing business is one thing, but the actual exercise of that
privilege is quite another. The principles of due process
require a firmer foundation than mere compliance with state
domestication statutes.”
- In doing business with
- Express (Does
not hold if contract is unconscionable or party under duress)- M/S Bremen v.
Zapata Off-Shore Co.- Rule: The
United States courts should enforce reasonable forum selection
clauses even if the clause mandates jurisdiction in a foreign
court. - Rationale: “The
expansion of American business and industry will hardly be
encouraged if, notwithstanding solemn contracts, we insist on a
parochial concept that all disputes must be resolved under our
laws and in our courts. We cannot have trade and commerce in
world markets and international waters exclusively on our terms,
governed by our laws, and resolved in our courts.”
- Rule: The
- Carnival
Cruise Lines, Inc. v. Shute- Rule:
Reasonable forum selection clauses are effective in imposing
jurisdiction. - Rationale: 1)
Cruise line has a special interest in limiting the for a in
which it potentially could be subject; 2) the clause dispels any
confusion about where suits arising from the contract must be
brought and defended; 3) passengers benefit in the form of
reduced fares reflecting the savings that the cruise line enjoys
by limiting the for a in which it may be sued. It will be valid
as long as the clause is reasonable. The clause is reasonable
when it is fair. It is fair because the plaintiffs benefited
from lower prices resulting from decreased litigation.
- Rule:
- M/S Bremen v.
- Waiver – Failing
- Was D present in
-
Jurisdiction
Over Property- Two types of
jurisdiction- Quasi in rem: Cause
of action isn’t necessarily about property. The property is
attached to get jurisdiction. Requirements of quasi in rem
jurisdiction are:- Notice to person that
you are taking property - In the forum state
- That was attached at
beginning of lawsuit
- Notice to person that
- In rem: Cause
of action is about property.- Has to deal with
property. - Has to be within
the state. - Against the universe (I
exercise dominion over the chalk – anybody who wants to challenge
the ownership of the chalk can come into the lawsuit. Anybody
with interest in the chalk.)
- Has to deal with
- Tyler v.
Judges of the Court of Registration- Rule: Personal
notice to all adverse claimants is not required in a motion in
rem to quiet title to property. - Rationale: In
rem jurisdiction is secured by the power of the court over the
property. Otherwise, the judicial proceeding to clear title
against all the world would not be possible, for the very nature
of the proceeding is to rid the property of any known or unknown
claimants.
- Rule: Personal
- Pennington v.
Fourth National Bank- In rem proceedings
require seizure of the property within the forum state’s
jurisdiction as well as an opportunity for the owner to be heard.
Applies to both tangible and intangible property.
- In rem proceedings
- Harris v. Balk
- Rule: Courts
may assert jurisdiction over debts provided personal jurisdiction
over the debtor can be attained. - Rationale: The
situs of the debt travels with the debtor for jurisdictional
purposes. The original situs of the debt is irrelevant. Debt is
an item of intangible personal property and the typical rules for
in rem jurisdiction should apply. - Note: After
Shaffer, the attachment of a third party’s debt to D or
attachment of an insurance company’s obligation to defend and
pay a claim, are largely wiped out as bases for jurisdiction.
- Rule: Courts
-
No Minimum
Contacts, Therefore No Quasi In Rem Jurisdiction – Shaffer v.
Heitner- Rule:
Minimum contacts must exist in order for in rem jurisdiction to
attach. - Rationale: Since
jurisdiction over property involves jurisdiction over a person’s
interest in the property, the proper standard is the minimum
contacts standard elucidated in International Shoe (due
process requires that minimum contacts exist for in personam.
jurisdiction). If a direct assertion of personal jurisdiction
over the defendant would violate the Constitution, it would seem
that an indirect assertion should be equally impermissible. -
Reasons against using
the minimum contacts test (or to put it another way, reasons for
allowing automatic quasi in rem jurisdiction)- A wrongdoer
“should not be able to avoid payment of his obligations by the
expedient of removing his assets to a place where he is not
subject to an in personam suit. Rebuttal by court: You
can still sue where the money isn’t and use the Full Faith and
Credit Clause to take your judgment to the state where the money
is and execute the judgment. - Traditional in rem
jurisdiction avoids the uncertainty in the International Shoe
standard and assure a plaintiff a forum. Rebuttal by court:
The test is rather easy to apply. And, simplifying the
question of jurisdiction is not more important than “fair play
and substantial justice” - This is the way it has
always been, why change the tradition? Rebuttal by court:
Just because it is the way it has always been doesn’t mean
that it is fair. - Sometimes this may be
the only forum available this was not raised nor discussed in
court.
- A wrongdoer
- Effects of
Shaffer- Pure In Rem Actions
– Shaffer had almost no effect on in rem suits.
Jurisdiction is permissible where the presence of property
within the state is itself the subject matter of the
dispute—where tangible or intangible—and is directly related
to P’s cause of action. - Quasi In Rem
Actions – Quasi in rem will rarely be advantageous.
Jurisdiction permissible where the P’s claims relate to rights
and obligations arising out of the defendant’s ownership of
property within forum state provided D has minimum contacts.
The one situation where it might be useful is where minimum
contacts are present, but the state’s long-arm statute for
personal jurisdiction is too narrow to reach D.
- Pure In Rem Actions
- Rule:
-
Owning Land
Satisfies Minimum Contacts – Note Case: Rhoades v. Wright-
Court
considered the presence of the land (as distinguished from the
intangible prop. in Shaffer) together with the fact that
the Colorado D actively used the land as sufficient
-
- Exception –
Admiralty Cases – Note Case: Amoco Overseas Oil Co. v.
Compagnie Nationale Algerienne de Navigation- A federal admiralty
court after Shaffer can exercise jurisdiction based on an
attachment of property (foreign bank account) in the district
when the defendant otherwise lacks contacts with the forum.
“This tradition suggests not only that jurisdiction by
attachment of property should be accorded special deference in
the admiralty context, but also that maritime actors must
reasonably expect to be sued where their property may be found.”
- A federal admiralty
- Note Case: Feder
v. Turkish Airlines- Quasi in rem
jurisdiction okay when attaching bank account that is only
contact with forum. Decision not consistent with Shaffer.
- Quasi in rem
- Note Case: Rush
v. Savchuk- Insurance obligation
could not be attached to get quasi in rem jurisdiction because
there were not enough contacts.
- Insurance obligation
- Cybersquatting –
Note Case: Harrods Ltd. V. Sixty Internet Domain Names- Registering a domain
name can expose D to an in rem action wherever the name is
registered because states have a sovereign interest in protecting
property registered within its borders if dispute is directly
related to the property itself.-
-
-
-
- Jurisdictional
Reach of the Federal District Courts
- Jurisdictional
-
-
-
-
- Registering a domain
- Quasi in rem: Cause
- Rule 4(k)(1)(A):
If the state court has jurisdiction, the federal court has
jurisdiction. The federal court “borrows” the long-arm statute
of the state court. Personal jurisdiction is valid in state court,
and therefore federal court, when the state’s long-arm statute
authorizes it and when it is constitutional. - Rule 4(k)(1)(B):
Personal jurisdiction valid over a third party in a lawsuit when
that third party was served within a 100 mile radius (even across
state lines) of the courthouse. - Rule 4(k)(1)(C) and
Rule 4(k)(1)(D): other long-arm statutes- “Because the federal
courts are federal, it is not about the state, it is about you
being a citizen of the US in
some instances, you can be served anywhere.” (Quote from Ben)
For unusual cases:- National Residence
Theory: if you are a resident of the US, then it is up to the
federal court where you are sued. It is automatically fair
because you are a resident of the US, so the fairness factors are
not considered - National Contacts
Theory: if you have contacts with the nation, then the
federal court is going to be concerned with minimum contacts with
the US and they will apply fairness factors.
- National Residence
- “Because the federal
- Rule 4(k)(2):
allows federal courts to exercise jurisdiction over a defendant
against whom federal law claims are asserted in a case in which the
defendant is not subject to the jurisdiction of any single state
but the Constitution of the US would permit jurisdiction (almost
always because D is a foreigner).- Rule 4(k)(2) promulgated
partly in response to Omni Capital International v. Rudolf
Wolff & Co. – Foreign defendants doing
business in the US might not be amenable to service of process in
any particular state if long arm-statute could not reach them and
thus would be unaccountable in the US for alleged violations of
federal law, but Supreme Court held that it was for legislature,
not courts, to fashion a rule authorizing service of process in
this situation.
- Rule 4(k)(2) promulgated
- Which party has
burden of proving the amenability or lack of amenability of the
defendant to suit?- Note Case: BP
Chemicals v. Formosa Chemical Corp.- Burden stays with
plaintiff
- Burden stays with
- Note Case: US
v Swiss American Bank- Once P makes prima
facie case for application of the rule, the burden shifts to
defendant
- Once P makes prima
- Note Case: ISI
International v. Borden Ladner Gervais LLP- Defendant who wants to
stop Rule only has to name some other state. Naming a state would
amount to consent to PJ. If defendant says he can’t be sued
anywhere and doesn’t say where he can be sued, then Rule can be
applied.
- Defendant who wants to
- Note Case: BP
-
How is nationwide
in personam jurisdiction justified?-
Note Case:
Stafford v. Briggs- Justice
Stewart-dissent: Theory of “national contacts”: Due Process
Claus requires minimum contacts between defendant and sovereign
that has created court.
- Justice
-
Note Case:
Oxford First Corp. v. PNC Liquidating Corp. – Federal
statutes authorizing extra-district service of process are limited
by the fundamental notions of “fairness” derived from the Due
Process Clause of the Fifth Amendment. The factors relevant to
the “fairness” inquiry were: 1) the extent of the defendant’s
contracts with the place where the action was brought, 2) the
inconvenience of defending in a distant forum, 3) judicial
economy, 4) the probably locus of discovery, 5) the interstate
character and impact of defendant’s activities.- Most courts have
declined to adopt the Oxford factors as a test of whether
an assertion of personal jurisdiction by a federal court complies
with due process.
- Most courts have
-
- Two types of
-
Challenging A
Court’s Exercise Of Jurisdiction Over The Person Or Property- Raising the
Jurisdictional Issue Directly- In federal court and
half of the states, if you defend on the merits, you do not waive
personal jurisdiction. You can defend the lawsuit in federal
court and half of the states on the merits and then on appeal, you
can raise whatever issue you want, including lack of personal
jurisdiction. - The other half of
the states have “special” and “general” appearances - “Special”
appearances: D is appearing just to contest personal
jurisdiction. If he loses, he can appeal. If the court decides
that they do have jurisdiction, D can defend on the merits or
default. If you defend on the merits and therefore make a
“general” appearance and lose, you can appeal but not on the
grounds that the court lacked jurisdiction. - “General”
appearances: D consents to personal jurisdiction. If D
defaults but does not make a general appearance, judgment will be
entered against him and he can then collaterally attack. - Trial Courts Have
Broad Leeway In Determining Procedures – Data Disc, Inc.
v. Systems Technology Associates, Inc.– “A
defendant may move, prior to trial, to dismiss the complaint for
lack of personal jurisdiction…The limits which the district
judge imposes on pre-trial proceedings will affect the burden
which the plaintiff is required to meet…Accordingly, if a
plaintiff’s proof is limited to written materials, it is
necessary only for these materials to demonstrate facts which
support a finding of jurisdiction in order to avoid a motion to
dismiss. If a plaintiff makes such a showing, however, it does
not necessarily mean that he may then go to trial on the
merits…where the jurisdictional facts are enmeshed with the
merits, the district court may decide that the plaintiff should
not be required in a Rule 12(d) preliminary proceeding to meet the
higher burden of proof which is associated with the presentation
of evidence at a hearing, but rather should be required only to
establish a prima facie showing of jurisdictional facts…(P) must
still prove the jurisdictional facts at trial by a preponderance
of the evidence.”
- In federal court and
- Collateral Attack
on Personal Jurisdiction- When P tries to enforce
the judgment, D can contest that the judgment was made without
jurisdiction. The court does not have to give judgment full faith
and credit. D can file lawsuit arguing that there is an invalid
judgment based on lack of jurisdiction. The court can then
invalidate the judgment. - D can’t defend on
the merits in State X and then collaterally attack in State Y –
Baldwin v. Iowa State Traveling Men’s Ass’n
– If defendant appears specially to contest personal
jurisdiction in federal court, defendant cannot collaterally
attack; he can only appeal or had he wanted to collaterally
attack, he should not have shown up at all. “Public policy
dictates that there be an end of litigation; that those who have
contested an issue shall be bound by the result of that contest;
and that matters once tried shall be considered forever settled as
between parties…[this] opinion repeats the established rule that
a defendant who makes no appearance whatsoever remains free to
challenge a default judgment for want of personal jurisdiction.
The principle that a court has power to determine its own personal
jurisdiction is limited to defendants who submit the question for
resolution in that court.”
- When P tries to enforce
- The
Limited-Appearance Problem- “Limited”
appearance: Allows D in an action commenced on a quasi-in rem
basis to appear for the limited purpose of defending his interest
in the attached property without submitting to the full in
personam jurisdiction of the court.- If D appears to
defend in QIR action, then PJ – U.S. Industries, Inc.
v. Gregg – FL resident whose property had been
sequestered in DE was refused the right to make a limited
appearance and told that any judgment the court might enter in
favor of P would be an in personam one.
- If D appears to
- “Limited”
- Raising the
-
-
-
-
-
-
-
-
- Providing
Notice and An Opportunity to Be Heard
-
-
-
-
-
-
-
- The Requirement of
Reasonable Notice- In order to have personal
jurisdiction, it has to be authorized under the long arm statute,
constitutional, and triggered by the service of process. - Reasonableness test: In
order for D to have received adequate notice, it is not necessary
that he actually have learned of the suit. Rather, the procedures
used to alert him must have been reasonably likely to inform him,
even if they actually failed to do so. - Due Process Requires
Notice Be Reasonably Calculated Under All The Circumstances.- Publication Fails
When Addresses Known – Mullane v. Central Hanover Bank &
Trust Co.- Rule: Notice by
publication fails to comply with due process where the names and
addresses of the parties are known. - Rationale:
Whenever legal proceedings affect life, liberty, or property
interest of the parties, parties must be provided with notice
under due process clause. Due process requires that notice be
“reasonably calculated, under the circumstances”, to
appraise interested parties of the pendency of the action and
afford them the opportunity to be heard. Personal service of
written notice always complies with due process; notice by
publication fails as a reasonable method depending on the
circumstances. However, parties residing outside of the forum
state do not necessarily have to be provided with written notice,
as this would place impossible obstacles in the instant action
where the number of interested beneficiaries is numerous. P had
previously mailed information to a number of beneficiaries and
likewise should have mailed notice of the legal proceedings to
these beneficiaries, as this would not seriously burden the
trust. The New York statute providing for service by publication
in such circumstances is unconstitutional, failing to comply with
due process. With regard to the beneficiaries whose addresses
were unknown or interests uncertain, notice by publication did
comply with due process.
- Rule: Notice by
- Publication In
Last Known Abode Not Good Enough – Note Case: McDonald
v. Mabee- “There is no
dispute that service by publication does not warrant a personal
judgment against a nonresident…an advertisement in a local
newspaper is not sufficient notice to bind a person who has left
a state intending not to return. To dispense with personal
service the substitute that is most likely to reach the defendant
is the least that ought to be required if substantial justice is
to be done.”
- “There is no
- Notice of Implied
Consent Laws Expressly Required To Non-Residents – Note
Case: Wuchter v. Pizzutti- Every implied consent
statute should require the plaintiff to have the duty of
communication by mail or otherwise with the defendant that he has
been served. If the statute does not require the plaintiff the
duty of communicating to defendant service, then even if
defendant is given communication of service, jurisdiction may not
be established.
- Every implied consent
- Posting On
Property Not Good Enough (Mail Or Personal Service
Required) – Note Case: Mennonite Board of Missions v.
Adams- Notice by
publication and posting does not provide a mortgagee of real
property with adequate notice of a proceeding to sell the
mortgaged property for nonpayment of taxes. Publication and
mail is needed unless mortgagee is not reasonable identifiable.
- Notice by
- For Probate If
Creditors Are Known/Ascertainable Mail Required – Note Case:
Tulsa Professional Collection Services, Inc. v. Pope- US Supreme Court held
that if Tulsa’s identity as a creditor was known or “reasonably
ascertainable” by executrix Pope, due process required that the
collection agency be given notice by mail or other such means as
is certain to ensure actual notice.
- US Supreme Court held
- Notice On Door of
Tennant for Eviction Not Enough – Note Case: Greene v.
Lindsey- Supreme Court, in
an opinion by Brennan, found notice in the form of posting
summons on door of a tenant’s apartment in forcible entry and
detainer actions (provided for by Kentucky statute) insufficient
to satisfy due process. In circumstances of this case, merely
posting notice on apartment door does not satisfy minimum
standards of due process because in a significant number of
instances, the statute allowing service of process in this manner
failed to provide actual notice to tenant concerned. Due process
clause required that the posting be supplemented by notice
through mail. Notice posted upon property is adequate to alert
owner or occupant of legal proceedings where notice is posted at
a residence but when there are circumstances different from those
in the instant case. - Dissent: Since
mailboxes are subject to plunder, at least posting on door gets
it as far as the tenant’s door.
- Supreme Court, in
- For
Impossible/Impractical Personal Service Then Mail To Last Known
Enough – Note Case: Dobkin v. Chapman- Regarding personal
service that is impossible or impractical, New York Court of
Appeals upheld service by ordinary mail to defendant’s last
known address and publication in a local newspaper.
- Regarding personal
- Mail To Insane Or
Committed Not Enough – Note Case: Covey v. Town of
Somers- US Supreme Court
held that notice by mail, ordinarily sufficient, does not satisfy
due process when it is mailed to someone known to be insane and
committed to a hospital, or to someone who is without the
protection of a guardian.
- US Supreme Court
- Actual Notice Not
Required To Prisoner From Fed Gov – Note Case: Dusenberry
v. United States- Supreme Court held
that certified mail is sufficient in those circumstances when the
federal government is the plaintiff and the defendant is
incarcerated in federal prison. - Ginsburg, Stevens,
Souter, and Breyer dissented because “the Court condones a
procedure too lax to reliably ensure that a prisoner will receive
a legal notice sent to him.”
- Supreme Court held
- On Small Claims,
Summons Must Include Option Of Written Pleading – Note Case:
Aguchak v. Montgomery Ward Co.- On small claims cases,
summons must include notification that defendant has option to
appear by written pleading or that defendant had a right to
request change of venue otherwise jurisdiction is improper. This
case distinguishes between what methods for communicating notice
are acceptable (see cases above) and what the content of the
notice should be.
- On small claims cases,
- Notice of
Garnishment Must Contain Detailed Individualized Explanation of
Reasons For Action Being Taken – Note Case: Finberg v.
Sullivan- Third Circuit struck
down rules allowing creditors to seize bank accounts containing
Social Security benefits without giving notice containing a
detailed, individualized explanation of the reason(s) for the
action being taken.
- Third Circuit struck
- Publication Fails
- In order to have personal
- The Mechanics of
Giving Notice- Ways to Serve
- Serve pursuant to law
of forum state, or pursuant to law of state where service is
effected (state where served) / Rule 4(e)(1) - Personal service
– place and leave papers with defendant- Place and Leave With
– Personal Delivery on Natural Persons: “McKelway, Profiles –
Place and Leave With”, New Yorker- “Place and leave
with’ is the legal phrase for what a process-server must do
with a summons when goes out to serve papers on a defendant, but
the courts never have explained precisely what that means.
Where the process-server must place the papers is still a nice
legal question.”
- “Place and leave
- Place and Leave With
- Service on
defendant’s dwelling or usual place of abode / Rule
4(e)(2) if papers are left with person residing there of suitable
age and ability to accept service- Service To One Of
Many Homes – Note Case: National Development Co. v. Triad
Holding Corp.- Service to apartment
of wealthy businessman who testified it was one of 12 residences
he maintained around the world was upheld because he was living
there at the time and serving him there was the most likely
method of ensuring that he received the summons and complaint.
- Service to apartment
- Service To Home
You’ve Just Left – Note Case: Karlsson
v. Rabinowitz- Fourth circuit
validated service that was left with the defendant’s wife in
Maryland even though the family was in the process of moving and
the defendant had already left for Arizona, with no intent ever
to return.
- Fourth circuit
- Service to
Estranged Wife Not Valid – Note Case: Williams v. Capital
Transit Co.- On facts similar to
Karlsson, District of Columbia Circuit held that service was
invalid because the papers were left with D’s estranged wife
and he did not receive the papers until three years after
judgment was entered against him.
- On facts similar to
- Service To One Of
- Service via
registered mail or regular first class mail only allowed
when forum state allows pursuant to Rule 4(e)(1) - Waiver of service
/ Rule 4(d)- Plaintiff sends
defendant waiver; defendant accepts or refuses waiving formal
service - Receiving request to
waive does not create obligation to respond or basis for default - If defendant refuses
waiver (without good reason), must pay cost of personal service –
financial incentive to waive service.- Reasons why
defendant may refuse to sign waiver of service: - Statute of limitations
– Sometimes the statute of limitations does not run until the
defendant is served. - If the defendant
thinks that he can constantly evade service, then the plaintiff
cannot effectively serve defendant and will be unable to sue
defendant. - The defendant may just
want to make it difficult on the plaintiff. - The defendant may be
rich and therefore willing to pay for alternative form of
service in hopes that plaintiff will be unable to carry them
out.
- Reasons why
- If defendant
accepts waiver, Rule 4(d)(3) allows 60 days to file answer –
Rule 12(a) allows 20 days to answer if defendant does not waive
service - P Must Strictly
Comply With Service Provisions, Even If D Knows Of Suit –
Maryland State Firemen’s Association v. Chaves- Rule: The
plaintiff must strictly comply with the service provisions, even
if the defendant has actual notice of the lawsuit. - Rationale: For
cases pending after December 1, 1993, Rule 4(d) replaces Federal
Rule 4(c)(2)(C)(ii). The new rule authorizes the defendant to
send notice of the action and a request for waiver of service.
If the defendant does not consent to waiving, the rule does not
provide a basis for default judgment. Maryland rules do not even
help their case because Maryland Rule of Procedure 2-121
requires service by process of certified mail, not first class.
- Rule: The
- Private Delivery
(FedEx) Is NOT First Class Mail – Note Case: Audio
Enterprises v. B & W Loudspeakers- Seventh Circuit
district court rejected service by private delivery, reasoning
that Rule 4(d) specifies first class mail, postage prepaid.
- Seventh Circuit
- Plaintiff sends
- Service by posting
on property or publication – only constitutional when no
good alternatives exist; may be sufficient is do both or
supplement either with mailing to last known address - Service pursuant to
some international treaty / Rule 4(f) – Hague convention
prevails if a country has signed it - Service via authorized
agent. Agent may be authorized by appointment or by law. There
must be evidence that defendant himself intended to confer such
authority upon the agent.- National
Equipment Rental, Ltd. v. Szukhent- Rule:
Service upon an expressly designated agent is proper, even if
the agent is not required to deliver notice to the defendant.
An express contractual appointment of an agent for service of
process, and the subsequent transmittal of notice to the
defendant, satisfies the requirements of Rule 4(e)(2). - Rationale:
Parties to a contract may agree in advance to submit to the
jurisdiction of a given court through a forum selection clause,
expressly designating an agent in New York for the purpose of
accepting service of process. Although the agent in this case
was not known to the defendant, her prompt acceptance and
transmittal of the summons and complaint was itself sufficient
to validate agency, even though there was no explicit promise on
her part to do so. A failure to deliver service may have
invalidated the agency, but that is not the case here. Since
prompt notice was given to the defendant, the agent was his
“agent authorized by appointment” to receive process. It is
because Florence, the “fake agent” (because defendant did
not have subjective intent to make Florence the agent), acted
like an agent that she is authorized as being the agent. The
Supreme Court considers form contracts as valid, even if there
may be a conflict of interest, if the agency is validated. - Dissent: 4 justices
say that she was not authorized, including Black and Brennan.
They do not like that Florence had a conflict of interest in
being appointed through contract clause; they would bar agents
who have conflict of interest as a matter of law and who are
therefore not really authorized by appointment. The only time
they would accept someone like Florence as an agent is if she
was required to validate the agency by mailing a copy, but she
was not required to so by either federal or state law. They do
not like form contracts, believing that it is not real
authorization.
- Rule:
- Cognovit Notes
Should be Decided On Case-by-Case Basis – Note Case: D.H.
Overmeyer Co. v. Frick Co.- The Supreme Court
considered the constitutionality of cognovit provisions
(provisions where debtor may agree to waive objections to
jurisdiction, notice, and service of process) and ruled that
they were not per se violative of the Due Process Clause. Such
agreements must be judged on a case-by-case basis, with
particular sensitivity to whether there was inequality of
bargaining power or lack of consideration. - Most state courts
have invalidated cognovit notes and other “consent judgment”
provisions. They are rarely employed outside of Pennsylvania,
Delaware, Ohio, and Illinois.
- The Supreme Court
- National
- Rule 4(h) authorizes
service upon corporations, partnerships, and unincorporated
associations that are subject to suit under a common name,
with the most frequently invoked portion of the rule being the
part that permits service by delivery of process to an officer,
managing agent, or general agent.- Delivery to Someone
NOT Authorized by Company – Insurance Co. of North
America v. S/S “Hellenic Challenger”- Rule:
Federal Rule 4(h)(1) has been liberally construed to allow
service upon any representative of a corporation when delivered
to one so integrated with the organization that he knows what to
do with the papers. - Rationale:
Service of process upon a corporation does not necessarily have
to be made upon an expressly designated employee. Service is
generally sufficient when made upon an individual who stands in
such a position to render it fair to imply the authority on his
part to receive service. In this case, the service was
reasonably calculated to alert the defendant to the initiation
of the suit because the claims adjuster who was served was well
integrated into the organization and was familiar with the
formalities associated with service, as he had accepted service
on behalf of the defendant on at least two previous occasions.
The adjuster’s loss of summons and complaint is a mistake in
the ordinary course of business and does not merit remedial
relief.
- Rule:
- Service to
Secretary Can Be OK – Note Case: Fashion Page, Ltd. v.
Zurich Ins. Co.- “A corporation may
assign the task of accepting process and may establish
procedures for insuring that the papers are directed to those
ultimately responsible for defending its interests. The
corporation however cannot escape the consequences of
establishing alternative procedures which it may prefer.
Reliance may be based on the corporate employees to identify the
proper person to accept service.” In this case, an executive
secretary who had regularly accepted summonses whenever the vice
president was not in his office was considered an “agent
authorized by appointment”.
- “A corporation may
- Delivery to Someone
- If D’s identity or
residence is unknown, some states allow service by newspaper
publication. But this may only be used where D truly cannot be
found by reasonable effort.
- Serve pursuant to law
- Return of Service
- After serving, server
must file proof of service (affidavit detailing service and signed
by server) to establish jurisdiction. - Return of service can be
rebutted if there is not absolute proof that service occurred. - Sheriff Made a False
Return of Summons – Miedreich v. Lauenstein- The sheriff had
made a false return of summons that resulted in judgment against
plaintiff in this case. The Supreme Court upheld the judgment,
stating that the plaintiff in the prior suit that the current
plaintiff lost “did all that the law required in the issue of
and attempt to serve process; and, without fraud or collusion,
the sheriff made a return to the court that service had been duly
made…the court was justified in acting upon such return as upon
a true return. If the return is false the law of the state
permitted a recovery against the sheriff upon his bond.” (Quote
from Civ Pro book, p. 219)
- The sheriff had
- The return of
service is considered strong evidence of facts stated, but it is
not conclusive and may be controverted by proof that return is
inaccurate. However, D’s testimony generally will not be
sufficient to impeach the return unless other evidence
corroborates it. - Sewer Service –
United States v. Brand Jewelers, Inc.- The US had standing to
seek an injunction preventing defendant from systematically
obtaining default judgments against economically disadvantaged
people by utilizing so-called ‘sewer’ service techniques, by
which process-server simply disposes of the papers and makes a
false affidavit of service.
- The US had standing to
- After serving, server
- Service of Process
and Statutes of Limitations- Statutes of limitations
fix specific times within which actions must be brought. A suit
is “commenced” for purposes of a statute of limitations, in
some states, when process is served on the defendant.- Accrue & Toll:
Causes of actions are said to “accrue” when the limitation
clock begins to run on an action. If a plaintiff has been
prevented from timely asserting her rights, the running of the
clock is suspended or “tolled”.
- Accrue & Toll:
- Statutes are
generally deemed “procedural” but their impact is
“substantive” – plaintiff loses the opportunity to
invoke the assistance of the courts to obtain relief for an
otherwise valid claim. - Defect in Service:
A defect in service can be fatal to a plaintiff’s claim, because
the statute of limitations may have run before the plaintiff has a
chance to correct his error. - In federal court, Rule
3 governs when the action is commenced.- The suit is commenced
when a copy of the complaint is filed with the district court. - When the underlying
cause of action is based on state law, state law will govern when
the action is commenced.
- The suit is commenced
- Rule 4(m)
requires federal court to dismiss without prejudice an action when
the defendant has not been served within 120 days of the filing of
the complaint, if the plaintiff fails to show “good cause” for
not completing service within that time.- Prompt, but Improper
Service in Federal Court: If service of process is promptly
attempted but improperly made, the federal court has
discretion over whether or not they will dismiss the action
without prejudice or merely quash service and order the plaintiff
to re-serve. Courts dismiss when plaintiff has little likelihood
of effecting proper service. When plaintiff can make proper
service quickly, courts generally quash the faulty service
without prejudice to the plaintiff to serve again.
- Prompt, but Improper
- Statutes of limitations
- Ways to Serve
- Immunity from
Process and Etiquette of Service- Immunity from Process
- A court will sometimes
immunize a party from service of process, despite the fact that
the constitutional and statutory conditions governing personal
jurisdiction and service of process have been met. In such cases,
the grant of immunity usually is justified as promoting the
administration of justice.- Parties who are usually
immune include witnesses, parties, and lawyers who come to state
to participate in suit in order to alleviate fear of coming in
state for suit - Non-residents
incarcerated for criminal charges are not immune from service for
civil charges - State ex rel.
Sivnksty v. Duffield- Rule:
Nonresidents confined in jail on criminal charges are not immune
from service of process for civil actions. - Rationale: When
the intended recipient of civil process has been charged with a
crime, immunity furthers public policy to ensure that a
nonresident charged with a crime will not be deterred from
appearing before the criminal court by the threat of civil
process. (“Chill of Appearance”) A nonresident who
voluntarily submits himself to jurisdiction, in an answer to an
indictment against him, is privileged while attending court from
service of process in a civil suit. In the instant case, the
defendant entered the jurisdiction on his own volition rather
than in response to criminal process and at the time of entry,
he had not yet committed a crime. In such instances, the court
follows the rule that a person confined in jail on a criminal
charge or imprisoned on conviction for such charge is subject to
service of civil process if he was voluntarily in the
jurisdiction at the time of the arrest and confinement. - Dissent:
Whether defendant came into jurisdiction voluntarily or not is
irrelevant. His presence became involuntary when he was
confined in jail and because of the majority opinion, he will be
forced to trial in a county far from his residence. The holding
in this case subjects to civil jurisdiction an unfortunate
motorist who is arrested on real or fanciful criminal charges,
potentially leading to widespread abuse of judicial process.
- Rule:
- Immunity From
Service Confined to United Nations Headquarters District – Note
Case: Kadic v. Karadzic- President of breakaway
Bosnian-Serb republic was served for federal court action on
charges of genocide while he was in US as an invitee of the
United Nations. Court upheld service and found that immunity
from service is confined to the headquarters district of the
United Nations and D was served in the lobby of a hotel, outside
that district. The court also declined to treat D as an
accredited diplomatic envoy because he was not a designated
representative, only an invitee, of the United Nations.
- President of breakaway
- Parties who are usually
- Today, immunity
serves little purpose as long-arm statutes allow out of state
service
- A court will sometimes
- Etiquette of
Service- Service Gained By
Fraud And Deceit Not Valid – Wyman v. Newhouse
- Rule:
Service of process procured through trickery renders jurisdiction
invalid. A judgment that is procured through fraud is void. - Rationale:
Defendant was fraudulently induced to enter jurisdiction of state
of Florida to be served in an action for damages. Any judgment,
procured fraudulently, lacks jurisdiction and is null and void.
“A fraud affecting the jurisdiction is equivalent to a lack of
jurisdiction.” Defendant did not have to make out a defense on
the merits to the suit in Florida and any error made in entering
judgment against a party over whom a court had no jurisdiction
permits the defendant to attack the judgment collaterally.
- Rule:
- Service Gained By
Trickery, But D In FS Voluntarily Is OK – Gumperz v.
Hofmann- The court
distinguished between actions designed to induce a party into a
jurisdiction and actions calculated to facilitate service on a
party already in the jurisdiction, upholding service obtained by
trickery on party who was voluntarily in New York. The trickery
did not leave to quashing of service because it was only used to
enforce the duty of the party to accept service of process.
- The court
- Today, issues of
trickery are rare as long-arm statutes allow out of state service.
- Service Gained By
- Immunity from Process
- Opportunity to Be
Heard-
Due Process allows all
parties the right to present their side of the case - Sometimes a hearing
is sufficient. Sometimes there is need for a full trial. It is
usually something in between. -
Defendant must be given
adequate time to prepare defense against charges in complaint- Rule 12(a) provides
20 days / Rule 4(d) provides 60 days if accept waiver - 5 Days Was NOT Enough
Time – Roller v. Holly- One common requirement
for a defendant to have adequate opportunity to be heard (when
she is able to develop facts and legal issues in the case) is
that the defendant must be informed of the action (that is, must
receive notice) long enough in advance of the time when she is
required to respond so as to allow her to obtain counsel and
prepare a defense.
- One common requirement
- Rule 12(a) provides
-
Provisional
remedies – a generic term for any temporary order of a court to
protect a party from irreparable damage while a lawsuit or petition
is pending.-
Due Process
limits provisional remedies because they do not provide adequate
opportunity to be heard. - In general, seizure
of property must be preceded by notice and opportunity to be
heard. - Must Consider
Nature of P’s Interest – Note Case: Goldberg v.
Kelly- Court held that a
pre-termination hearing is required for termination of welfare
benefits because “termination of aid pending resolution of a
controversy over eligibility may deprive an eligible recipient of
the very means by which to live while he waits.”
- Court held that a
- Can’t Garnish
Wages W/out Hearing – Note Case: Sniadach v. Family
Finance Corp.- Struck down a
Wisconsin prejudgment wage garnishment procedure as violative of
due process guarantees. Where the taking of one’s property is
so obvious, it needs no extended argument to conclude that absent
notice and a prior hearing, this prejudgment garnishment
procedure violates the fundamental principles of due process.
- Struck down a
- Fuentes v.
Shevin- Rule: Absent
extraordinary circumstances, notice and an opportunity to be
heard must be provided PRIOR to depriving a party of a protected
property interest. Consistent with procedural due process, we
have repeatedly held that, prior to depriving a party of a
property interest, an opportunity to be heard must be granted in
a meaningful time. - Reasoning of
Majority 4 (2 new judges on sidelines who had just been
confirmed and that did not vote): Stewart: If notice and a
hearing is to serve its full purpose, then the hearing must be
granted at a time when the deprivation can still be prevented.
Florida statute requires a post-seizure hearing in which
the aggrieved party can argue her right to the goods.
Pennsylvania allows for the aggrieved party to institute a
lawsuit for the return of wrongfully seized goods. Pursuant
to both statutes, the creditor seeking replevin (modern action
allowing the title holder to repossess goods or chattels from a
person who has wrongfully there must be a special need for prompt
action, and the statute must be narrowly drawn. - Dissent of
Minority 3: Both the Florida and Pennsylvania statutes that
allow for seizure of goods without providing opportunity to be
heard prior to seizure are constitutionally valid methods of
reconciling conflicting interests of the debtor and the creditor
in an installment sales contract.
- Rule: Absent
- Cognovit Notes
Still OK – Note Case: D.H. Overmeyer Co. v. Frick
- Court held that a
clause authorizing a creditor upon default to use a
confession-of-judgment procedure (cognovit note) and secure the
entry of judgment against a debtor without service of process or
notice was not per se violative of the Fourteenth Amendment
requirements of prejudgment notice and a hearing.
- Court held that a
- Unequal
Bargaining Leads to Invalid Waivers of Pre-seizure Hearings –
Note Case: Kosches v. Nichols- In contracts of
adhesion where buyer has no alternative but to purchase on
credit, the parties are not in equal bargaining position the
clauses giving the seller the right to enter a debtor’s
residence and seize the goods without a court order are
unconscionable.
- In contracts of
- Safeguards Make
Seizures OK – Mitchell v. W.T. Grant Co.- Rule:
Statutes allowing for attachment or sequestration without a prior
adversarial hearing do not violate procedural due process, if
procedural safeguards exist. The Louisiana sequestration statute
does not violate due process. - Rationale (2 new
judges in!) Majority 5 (White, who dissented in Fuentes
wrote majority opinion here): The Louisiana sequestration statute
provides that a writ of execution could issue ex parte, but only
when the nature of the claim clearly appears from a 1)
verified petition. The statute required the clear showing to
be 2) made to a judge and 3) allowed the debtor to seek
dissolution of the writ, and then placed the burden on the
creditor to prove that the writ was proper. 4) The debtor
could regain possession by filing his own bond to protect the
creditor against interim damage to the property. Sniadach
and Fuentes differentiated from instant case, those cases
involving a creditor with no prior interest in the property (not
the case here with installment sales contract) and a sufficiently
different factual and legal background from the instant case (not
really!), respectively. Also, different from Fuentes, the
statute in question here is narrowly confined. Based on the
procedural safeguards of the Louisiana statute, there is far less
danger here that the seizure will be mistaken, thus the
sequestration standards are constitutional. Note that according
to Martin, the majority does not overrule Fuentes – the
distinguishing characteristics noted in Mitchell matter to the
court. - Dissent 4 (the same 4
that were in the majority in Fuentes): The Louisiana
affidavit requirement was little more than a standardized form
that only tested the creditor-applicant’s own belief in his
rights. Replacing the court clerk with a judge would have no
effect on the assessment of the affidavit or the issuance of the
writ. The factual issues in the instant case were no different
from those in Fuentes. The majority unjustifiably
disregarded stare decisis in overruling Fuentes
- Rule:
- Property May Not
Be Attached W/out Notice/Hearing W/out Procedural Safeguards –
North Georgia Finishing, Inc. v. Di-Chem, Inc.
- Rule: In
order to comply with procedural due process, attachment by
garnishment requires a prior adversarial hearing or certain
procedural safeguards. The Georgia garnishment statute violates
due process. - Reasoning Majority 6
(White, who handed down opinion of Mitchell one year
before): The Georgia garnishment statute at issue provided for
attachment of property upon filing an affidavit, without
need to specify clear proof of need for attachment, with a court
clerk (not a judge) and posting a bond equal to
twice the amount alleged to be due. No provision for early
hearing at which the creditor would be required to demonstrate
probable cause for the garnishment. A writ of garnishment issued
by a court clerk without notice or opportunity for an early
hearing violates due process (Fuentes). The Georgia
statute has none of the procedural safeguards necessary to make
it constitutional (Mitchell). Although the property here
(bank account) is different from that of the two preceding cases,
the court does not distinguish among different kinds of property
in apply the due process clause.
- Rule: In
- Balancing Test –
Connecticut v. Doehr- Rule: Where the
risk of erroneous attachment and the harm to the aggrieved party
outweighs the interests of the party seeking attachment, property
cannot be attached without notice and a hearing. Connecticut’s
prejudgment attachment statute violates due process. - Rationale (White
again delivers this opinion and all justices agree!): The court
relies on the form of the balancing test adopted in Mathew v.
Eldridge – threefold inquiry to determine if government
conduct comports with due process. The relevant inquiries in the
instant case are as follows: - Consideration of the
private interest that will be affected by attachment- The private property
interests are significant, for attachment may cloud title,
impair the ability to alienate the property, taint credit
rating, and even place existing mortgage on default.
- The private property
- Examination of
the risk of erroneous deprivation through the statutory
procedures and the value of additional alternative safeguards.- There is a substantial
risk of erroneous deprivation - The Connecticut
statute requires only a minimal showing of probable cause - Judge could not make a
realistic assessment of the merits of the action based solely on
one-sided, conclusory assertions by defendant in an assault and
battery action - The statute does
not provide sufficient additional safeguards - It does provide for a
prompt post-attachment hearing, but this would not cure
the temporary deprivation of property that would have already
occurred
- There is a substantial
- The interest of
the party seeking the prejudgment remedy- The interests of the
defendant are too minimal to support the prejudgment attachment - No indication that
plaintiff was about to transfer his property or otherwise render
his estate unavailable to satisfy a future judgment - The court also
provided an analysis of whether due process requires the party
seeking attachment to post a bond. The bond, despite its
use as remedy, does not excuse the need for a hearing or other
safeguards prior to attachment. The bond cannot undo what
hearings can prevent.
- The interests of the
- Rule: Where the
- Fed Can’t Evict
Drug Dealers W/out Notice/Heard – Note Case: Richmond
Tenants Organization, Inc. v. Kemp- The court concluded
that, in the absence of exigent circumstances, the Due Process
Clause of the Fifth Amendment requires the federal government to
provide notice and an opportunity to be heard before a tenant may
be evicted, even when evicting drug offenders.
- The court concluded
- Owner’s
Interest In Property May Be Forfeited Even If She Did Not Know It
Was Being Used For Illegal Purpose – Note Case: Bennis
v. Michigan- Court forfeited a
family’s automobile following husband’s use of the car for
sex acts with a prostitute. Wife tried to contest forfeiture on
grounds of her joint ownership in the property, but court
rejected that argument, holding that “a long and unbroken line
of cases holds that an owner’s interest in property may be
forfeited by reason of the use to which the property is put even
though the owner did not know that it was put to such use.”
- Court forfeited a
- Your Car Can Be
Booted – Note Case: Patterson v. Cronin- “Denver boot”
case. Court applied Mathews factors and “found that the
governmental interest in enforcing parking ordinances was
important enough that a hearing prior to immobilization was not
constitutionally mandated – provided that a hearing procedure
was available after the immobilization. Denver failed to provide
such a post-deprivation hearing and, as a result, the court
concluded that the immobilization of plaintiff’s vehicle
violated his due process rights.”
- “Denver boot”
- Note Case:
Shaumyan v. O’Neill- Involved a challenge to
the same statute at issue in Doehr, but in the context of
a contract action, not an international tort case. It concerned a
dispute between a homeowner and a repair contractor. Owner was
not happy with quality of work and refused to pay, so contractor
obtained an ex parte judgment attachment writ against their home.
Owners sued to enjoin application of the attachment statute.
Relying on the Mathews test, the court found that although
the private interest in a family home is strong, the likelihood
of erroneous deprivation is low and the contractor had a
substantial interest in the property that resulted from his labor
and the use of material that could not be reclaimed.
- Involved a challenge to
- Note Case:
Peralta v. Heights Medical Center, Inc.- Supreme Court held that
requiring a party seeking to vacate a judgment to show a
meritorious defense violated the Due Process Clause. Had
defendant known of the lawsuit before default judgment entered
against him (failure to personally serve him), might have turned
out differently. Also, the entry of judgment against him had
serious consequences, as it became a lien on his property, which
was promptly sold. The judgment against him and the ensuing
consequences occurred without notice and notice at a meaningful
time and in a meaningful manner would have given him the
opportunity to be heard.
- Supreme Court held that
-
- Temporary
Restraining Orders Don’t Need Notice/Hearing – Federal Rule
65(b) authorizes issuance of temporary restraining orders without
notice or hearing, effective for 10 days during which time a
hearing may be held to determine whether or not a preliminary
injunction should issue. If a preliminary injunction is granted,
it remains in effect until final judgment is rendered.
-
Subject
Matter Jurisdiction
- Subject Matter
Jurisdiction in State Courts- State courts are courts
of general jurisdiction (open to hear all types of disputes). State
courts often have different branches (probate, family law,
criminal…civil (superior, municipal < $25,000, small claims
court, etc.)). - State Courts hears four
different types of disputes:- Lawsuits according
to the law of the forum state. - Lawsuits that arise
under and are decided according to the law of a different state.
(State cannot decline to hear violations of other states’ laws
because of Article IV of the Constitution (Full Faith and Credit
Clause).) - Lawsuits that apply
Federal law. (Can preempt state law.) - Lawsuits that are
decided according to the law of a different nation. (Not very
common.)
- Lawsuits according
- State courts are courts
- Subject Matter
Jurisdiction in Federal Courts – Diversity Jurisdiction- Article III, § 2 and
28 U.S.C. §§ 1332, 1359 in the Supplement: Federal courts can
only hear the following types of cases according to § 2:- Cases that arise under
the Constitution because you are claiming that a state statute is
unconstitutional… - Cases that arise under
the law of the US or any treatise made under their authority –
federal laws or federal treatise…- 1 and 2 are “arising
under” jurisdiction
- 1 and 2 are “arising
- Cases involving the
following: ambassador, maritime, admiralty, controversy to which
US is a party, neutral forum – controversies between two or more
states, controversies between a state and citizens of another
state, controversies between citizens of different states, between
state citizens and foreign country or foreign country’s citizen - Lawsuits missing
from federal court are those between citizens of one state and
citizens of that same state. These suits cannot be heard in
federal court even if Congress wants them to (unconstitutional
grant of subject matter jurisdiction)- Strawbridge v.
Curtiss – complete diversity needed - Bank of the
United States v. Deveaux – diversity jurisdiction to
protect out of state litigants against local prejudice and to
help speed economic growth
- Strawbridge v.
- Arguments
Diversity Jurisdiction- The congestion
diversity cases allegedly causes in the federal courts - Rule of Erie
Railroad Co. v. Tompkins which requires the application of
state law to substantive issues in diversity cases, has been
thought by many to make handling of diversity cases by federal
judges unnecessary, wasteful, and inappropriate- Reasoning: only
the state courts are considered to be authoritative on matters
of substantive law and the federal courts therefore are unable
to exercise their creative function and are performing an
unneeded service in avowedly aiming to follow state-court
decisions
- Reasoning: only
- Judicial and
legislative authority should be coextensive, and for federal
courts to decide cases arising under state law is an undesirable
interference with state autonomy - The effect that
diversion of litigation to federal courts may have in retarding
the development of state law - The continuation of
diversity jurisdiction diminishes the incentives for state court
reform by those influential professional groups who, by virtue of
diversity jurisdiction, are able to avoid litigation in the state
courts
- The congestion
- Defense of
Diversity Jurisdiction- Fear that state courts
would be prejudiced against out-of-state parties - Diversity jurisdiction
is necessary in order to implement the constitutional guarantee
that the citizens of each state shall be entitled to all the
privileges and immunities of citizens of the several states - The federal courts
qualitatively are so superior to the state courts that it is
desirable to channel as many cases as possible to the federal
courts, or at least that out-of-state litigants, who have no
opportunity to work for the improvement of the state courts,
should be spared exposure to them; federal judges are appointed
not as susceptible to political pressure and local biases as
state judges - The existence of
concurrent state and federal jurisdiction creates a competition
between the two that acts as a spur to higher standards of
justice in each court system - The choice of forum
undoubtedly will be utilized for tactical purposes but it is more
an abuse of concurrent jurisdiction than an argument for the
retention of diversity jurisdiction - Interaction between
state and federal courts that results from the existence of
concurrent jurisdiction in areas of substantive law practiced by
substantial segments of the bar has resulted in improvements in
the procedures followed by both state and federal courts - A fear on the part of
investors that local prejudice may exist provides a justification
for diversity jurisdiction
- Fear that state courts
- New Developments
- The current debate
about diversity jurisdiction focuses on whether a federal forum
should be available to hear complex, multi-claim lawsuits that
are based on state law but involve national concerns and multiple
parties who reside in multiple states. - Others see a shift of
tort cases from the state to federal courts, where they will be
decided by unelected judges, as posing a dilemma of
“federalization” that raises important issues of federalism
and separation of powers. - Still others see a
change in jurisdictional rules as a smokescreen for substantive
choices that are likely to disadvantage plaintiffs. - Yet another group
recognizes special problems of multi-state class actions, in
which the law of a single state can “bind the nation.” - Finally, some critics
emphasize the fact that enlarging the scope of diversity
jurisdiction will generate increased costs to both the state and
federal systems. - In 2002 and 2005,
Congress enacted two statutes that expand the reach of diversity
jurisdiction and make a federal forum available for particular
kinds of large scale, state law tort actions.- 28 U.S.C. § 1369
authorizes original federal jurisdiction in any civil action
arising “from a single accident, where at least 75 natural
persons have died in the accident at a discrete location”
provided “minimal diversity exists between adverse parties.” - 28 U.S.C. § 1332
makes federal district courts available for any class action in
which the amount in controversy exceeds $5 million and in which
any defendant “is a citizen of a State different from any
defendant.”
- 28 U.S.C. § 1369
- The current debate
- Cases that arise under
- Determining
Citizenship- US Citizen –
Domicile – Mas v. Perry- Rule: For
purposes of federal diversity jurisdiction, a party changes
domicile only by taking up residence in another state with the
intention to remain there, and a wife’s domicile is not
necessarily deemed to be that of her husband. - Rationale: The
court equates citizenship with domicile for purposes of diversity
jurisdiction but distinguishes domicile from residence. - In 1988, Congress
amended Section 1332(a) to provide that for the purpose of
diversity jurisdiction “an alien admitted to the US for
permanent residence shall be deemed a citizen of the State in
which such alien is domiciled.
- Rule: For
- Person Descended
From African Slaves Cannot be US Citizen – Note Case: Dred
Scott v. Sanford- Supreme Court held that
an individual challenging his enslavement could not invoke
diversity jurisdiction because a person descended from African
slaves could not be a US citizen. - Citizenship Clause
of the 14th Amendment overrules this holding.
- Supreme Court held that
- Corporation Can
Be A Citizen Of More Than One State – Note Case: White
v. Halstead Industries, Inc.- The state(s) in which
it is incorporated - The state in which it
has its principal place of business - The Circuit Courts of
Appeals uses three different tests to determine a corporation’s
principal place of business:- The “nerve center”
test – “the locus of corporate decision-making authority and
overall control constitutes a corporation’s principal place of
business for diversity purposes.” - The “corporate
activities” or “operating assets” test – greater weight
is attached to the location of a corporation’s production or
service activities in determining the principal place of
business for diversity purposes. - The “total activity”
test – hybrid of the “nerve center” and “corporate
activities” tests and considers all the circumstances
surrounding a corporation’s business to discern its principal
place of business. This “test provides a realistic, flexible
and non-formalistic approach to determining a corporation’s
principal place of business through a balancing of all relevant
factors.” - Partnerships –
An incorporated association is not treated as a citizen for
purposes of federal diversity jurisdiction, but instead courts
consider the citizen of each of its members. They are deemed to
be citizens in every state in which they have a member. See
Carden v. Arkoma Associates (1990).
- The “nerve center”
- The state(s) in which
- Courts disagree on
whether Section 1332(a) authorizes jurisdiction over a suit
between an alien plaintiff and an alien defendant.- Note Case: Singh
v. Daimler-Benz- Court of Appeals held
that jurisdiction under Section 1332 was available in a
state-law action by a permanent resident alien residing in VA
against a non-resident alien and citizen of state other than VA,
reading the 1988 amendment to apply to actions under Section
1332(a)(3).
- Court of Appeals held
- Note Case: China
Nuclear Energy Indus. Corp. v. Andersen, LLP- District Court held
that Section 1332(a) does not permit an alien corporation to sue
a partnership made up of both US citizens and permanent resident
aliens; a partnership’s citizenship is determined by the
citizenship of each of its individual partners. The court
interpreted Section 1332(a) to adhere to the longstanding rule
that there must be complete diversity between each plaintiff and
each defendant, even in alienage cases.
- District Court held
- Diversity is Not
Destroyed By Presence of Aliens on Both Sides of Controversy From
Same Foreign Nation – Note Case: Tango Music, LLC v.
Deadquick Music, Inc.- Court gave Section
1332(a) a literal reading and said it would make no difference
to a court whether both parties were from the same foreign
nation because diversity would be unaffected. An Illinois court
would be biased in favor of an Illinois plaintiff and it would
hardly matter to that court whether there was a French
co-plaintiff and French co-defendant, since their citizenship
would not weigh with that court.
- Court gave Section
- Note Case: Singh
- Citizens of
Overseas Territories are Citizens of a Foreign State Under
1332(a)(2) – Note Case: JPMorgan Chase Bank v. Traffic
Stream Infrastructure Limited- The Supreme Court
explained that alienage jurisdiction was enacted in order to deal
with the “penchant of the state courts to disrupt international
relations and to discourage foreign investment.”- Alienage jurisdiction
exists where there is a suit between citizens of a state, on one
side, and foreign states or citizens thereof, on the other.
- Alienage jurisdiction
- The Supreme Court
- No Diversity for
Stateless Alien – Note Case: Blair Holdings Corp. v.
Rubinstein- The court
interpreted Section 1332(a)(2) to require a showing that the
defendant was a citizen of a foreign state.
- The court
- You Can’t
Improperly Create Diversity – Note Case: Kramer v.
Caribbean Mills, Inc.- Plaintiff attempted
to create diversity of citizenship to have case heard in federal
court. The Supreme Court affirmed the Court of Appeals holding
that diversity was “improperly or collusively made” within
the meaning of Section 1359. Section 1359 prohibits only
the creation of diversity jurisdiction and says nothing about its
destruction.
- Plaintiff attempted
- Guardians and
Executors – In 1988, Congress added to Section 1332(c) a
provision that “the legal representative of the estate of a
decedent shall be deemed to be a citizen only of the same State as
the decedent, and the legal representative of an infant or
incompetent shall be deemed to be a citizen only of the same State
as the infant or incompetent.” This is a rule that prevented
the appoint of administrators to create (or destroy) diversity. - Real v. Nominal
Parties – Note Case: Rose v. Giamatti- P attempted to destroy
diversity of citizenship to make removal to federal court
impossible for the D. The District Court noted that a federal
court in its determination of whether there is diversity of
citizenship between the parties must disregard nominal or formal
parties to the action, and determine jurisdiction based solely
upon the citizenship of the real parties to the
controversy. A real party in interest defendant is one
who, by the substantive law, has the duty sought to be enforced
or enjoined. A formal or nominal party is one who, in a
genuine legal sense, has no interest in the result of the suit or
no actual interest or control over the subject matter of the
litigation.
- P attempted to destroy
- US Citizen –
- Amount in
Controversy- Good Faith Estimate
Is Sufficient – A.F.A. Tours, Inc. v. Whitchurch- Rule: The
amount-in-controversy requirement for federal diversity
jurisdiction is satisfied if the plaintiff makes a good-faith
estimate that the value of the claims, including actual and
punitive damages and the value of injunctive relief, meets the
required amount. - Rationale:
Dismissal for failure to meet the amount is warranted only where
it appears to a legal certainty that the claim is really for less
than the jurisdictional amount. The amount may be measured
either by a plaintiff’s losses or by profits unjustly received
by the defendant. The demand for appropriate punitive damages
may be included as well. Where an injunction is sought, the
value of the claim is assessed by measuring the extent of
impairment, including both past losses and future harm, to be
prevented by the injunction.
- Rule: The
- Test For
Determining Whether P Has Met Amount In Controversy Requirement –
Note Case: St. Paul Mercury Indemnity Co. v. Red Cab Co.- The rule is that the
sum claimed by P controls if it is apparently made in good faith.
It must appear to a legal certainty that the claim is really for
less than the jurisdictional amount to justify dismissal.
- The rule is that the
- Eventual recovery
irrelevant: The fact that P eventually recovers far less than
the jurisdictional amount does not be itself render the verdict
subject to reversal and dismissal on appeal for lack of
jurisdiction. - Post Filing Events
Relevant – Note Case: Hall v. Earthlink Network, Inc.- Court said that it will
look to post-filing events when they suggest that the amount in
controversy allegation in the complaint was made in bad faith or
that the complaint contained a mistake.
- Court said that it will
- “Aggregation”
doctrine – Note Case: Arnold v. Troccoli- The rule that
precludes a party from totaling all claims for purposes of
meeting the minimum amount necessary to give rise to federal
diversity jurisdiction under the amount-in-controversy rule.
- The rule that
- In general, single
plaintiffs can aggregate claims against single defendants.
However, a single plaintiff who has aggregated his claim against a
particular defendant usually may not join claims against other
defendants for less than the jurisdictional amount. - Two plaintiffs may not
aggregate if they have separate and distinct claims. If there is
a single indivisible harm, plaintiffs may aggregate, which is
usually done through supplemental jurisdiction. - In class actions, until
recently there has been an especially stringent and clear rule:
every member of the class had to satisfy the jurisdictional
amount. However, some courts have recently ruled that as long as
the named class representatives meet the amount, the supplemental
jurisdiction doctrine applies, so that the unnamed members need
not meet the jurisdictional amount.- Old Rule on
Class Action Lawsuits – Note Case: Zahn v.
International Paper Co.- Four owners of VT
lakefront property brought a diversity action on behalf of
themselves and 200 other lakefront property owners. Supreme
Court held that only Ps who individually met $10,000
jurisdictional amount could be members of the class. - However, Class Action
Fairness Act allows for aggregation of individual class member
claims to determine whether the statute’s $5 million amount in
controversy requirement is met.
- Four owners of VT
- Old Rule on
- Injunctive Relief
– Note Case: McCarty v. Amoco Pipeline Co.
(Approaches for determining amount in controversy for
jurisdictional purposes in diversity cases seeking injunctive
relief):- “Plaintiff viewpoint”
rule: only the value of the plaintiff may be used to determine
the jurisdictional amount. Jurisdiction is present if the value
to the plaintiff exceeds the required amount regardless of the
value to the defendant. - From the point of view
of the party seeking to invoke federal jurisdiction, the court
will look to the plaintiff’s viewpoint in a case brought
originally in federal court and to the defendant’s viewpoint in
a case removed to federal court from state court. - “Either viewpoint”
rule: In determining the matter in controversy, we may look to
the object sought to be accomplished by the plaintiff’s
complaint; the test for determining the amount in controversy is
the pecuniary result to either party which the judgment would
directly produce.
- “Plaintiff viewpoint”
- Good Faith Estimate
- Note on Judicially
Created Exceptions to Diversity Jurisdiction- Federal courts will not
act even though diversity is present in the areas of probate and
domestic relations. These are areas of the law in which the
states have an especially strong interest and a well-developed
competence for dealing with them.- Ankenbrandt v.
Richards- Domestic-relations
exception; the Supreme Court found that a domestic relations
exception does exist as a matter of statutory construction, but
that it is not mandated by the Constitution. The Court,
however, limited the exception to cases involving the issuance
of a divorce, alimony, or child custody decree.
- Domestic-relations
- Ankenbrandt v.
- Federal courts will not
- Article III, § 2 and
- Subject Matter
Jurisdiction in Federal Courts – Federal Questions- The Constitution gives
federal courts the authority to hear federal question cases in 28
U.S.C. § 1331, which states, “The
district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
United States.” - Overbroad
interpretation of Congress’ power to authorize SM jurisdiction –
Osborne v. Bank of the United States- Rule: Congress
has a broad power to confer subject matter jurisdiction over all
cases that conceivably involve federal questions. - Rationale: The
bank was started by federal statute. In order for the case to be
heard in federal court, it must be both authorized by Congress and
the authorization must be Constitutional. It is authorized
because it said in the congressional act that chartered the bank
can sue and be sued in any Circuit Court of the US. Federal law
is a necessary ingredient for the lawsuit. The act is
constitutional, as any such lawsuit could conceivably involve a
question of federal law and thus “arise under” the
Constitution or laws of the US. - Note Case: Bank
of the United States v. Planters’ Bank of Georgia- The BoUS had purchased
notes issued by a state bank, which refused to honor them. The
BoUS sued and the state bank contested the federal court’s
jurisdiction. Supreme Court held that the question had been fully
considered in Osborn and that it was unnecessary to repeat
the reasoning used in that case.
- The BoUS had purchased
- Rule: Congress
- Plaintiff’s COA
Must Involve a Federal Question – Louisville &
Nashville R. Co. v. Mottley- Rule: In
order to obtain federal question jurisdiction, a plaintiff’s
cause of action must involve a federal question, rather than
anticipating that a defendant’s defense will raise a federal
question. - Rationale: The
plaintiff’s complaint must itself raise the federal questions in
order to obtain subject matter jurisdiction.
- Rule: In
- FC Cannot Hear
Issues Raised by Counterclaim – Note Case: Holmes Group,
Inc. v. Vornado Circulation Systems, Inc.- Court rejected argument
that Federal Circuit Court, which has exclusive jurisdiction over
patent claims, could hear an appeal in which the patent issue was
raised by counterclaim and not on the face of the well-pleaded
complaint.
- Court rejected argument
- Can’t Just
Anticipate A Federal Defense – Note Case: Skelly Oil v.
Phillips Petroleum Co.- Anticipating a
defense based on federal law would contravene the whole trend of
jurisdictional legislation by Congress, disregard the effective
functioning of the federal judicial system and distort the limited
procedural purposes of the Declaratory Judgment Act, which states
that even when a defendant uses federal law as his defense in
seeking declaratory judgment, courts must still look to see if
action brought by the plaintiff arises under federal law.
- Anticipating a
- No Artful Pleading
– Note Case: Bright v. Bechtel Petroleum, Inc.- When a federal question
complaint is written to seem like it involves a state law, it may
still be removed to federal court because it is seen as artful
pleading.
- When a federal question
- COA Only Arises
Under Federal Act If Complaint Has Remedy Expressly Granted by Act
– T.B. Harms Co. v. Eliscu- Rule: A cause
of action alleging assignments of copyrights does not arise under
the Copyright Act for purposes of federal question jurisdiction. - Rationale: An
action “arises under” the Copyright Act, for purposes of
federal jurisdiction under § 1338, only if the complaint is for a
remedy expressly granted by the Act, asserts a claim requiring
construction of the Act, or presents a case where a distinctive
policy of the Act requires that federal principles control the
disposition of the claim. The claim can also disclose a need for
determining the application of the Act or there may be a
distinctive policy of the Act which requires federal principle
govern this claim.- TB Harms Test
(is an appeals court case, so it is not binding everywhere)- When there is a remedy
expressly granted by that law. - When the case asserts
a claim that requiring construction of federal law. - Not as sure, but if it
presents a case where there is some policy of federal law that
might require the case to be heard in federal court.
- When there is a remedy
- TB Harms Test
- Rule: A cause
- Yes, Arises Under
US Law – Note Case: Smith v. Kansas City Title &
Trust Co.- Example of a claim that,
although created by state law, “arises under” a law of the US
by virtue of requiring a determination of the meaning or
application of such law. The general rule is that where it
appears from the bill or statement of the plaintiff that the right
to relief depends upon the construction or application of the
Constitution or laws of the US, and that such federal claim is not
merely colorable, and rests upon a reasonable foundation, the
District Court has jurisdiction.
- Example of a claim that,
- Not Arising Under
US Law – Note Case: Moore v. Chesapeake & Ohio Ry.
Co.- (Appears to contradict
Smith) – A suit that arises from a state law that incorporates a
federal law is not regarded as a suit arising under federal law.
- (Appears to contradict
- Not arising under
– Note Case: Shoshone Mining Co. v. Rutter- (Reverse situation
of Smith) – The claim arose from a federally created cause of
action that turned on issues of state law and was not considered
as one which necessarily arises under the Constitution and laws of
the US.
- (Reverse situation
- Patent
infringement v. breach of contract – Luckett v. Delpark,
Inc.- The patentee apparently
could have sued for infringement of his patent but chose instead
to sue for breach of contract. The Supreme Court affirmed the
District Court’s dismissal because the patentee did not give the
federal district court jurisdiction of the cause as one arising
under the patent laws.
- The patentee apparently
- Requirements to
dismiss a Federal Claim – A federal court must dismiss a claim
arising under federal law for want of subject-matter jurisdiction
if the claim is “so attenuated and unsubstantial as to be
absolutely devoid of merit.” It must also dismiss for want of
jurisdiction if the claim clearly is foreclosed by prior decisions
of the Supreme Court. The test for dismissal is rigorous and, if
there is any foundation of plausibility to the claim, federal
jurisdiction exists. - Requiring The
Interpretation Of Federal Law Is Not Good Enough To Be Heard In
Federal Court – Merrell Dow Pharmaceuticals Inc. v.
Thompson- Rule: A
state-law private action, which alleges a violation of a federal
statute, “arises under” the laws of the US only if Congress
intended to provide a federal remedy for the statutory violation. - Rationale (5/4
Decision): A complaint alleging a violation of a federal
statute as an element of a state cause of action, when Congress
has determined that there should be no private, federal cause of
action for the violation, does not state a claim arising under the
laws of the US. A case may “arise under” the Constitution or
laws of the US, for purposes of § 1331, in two ways. First, and
most commonly, federal law itself creates a cause of action.
Second, a cause may arise under federal law where the vindication
of a right under state law necessarily turns on some construction
of federal law. The mere presence of a federal issue as an
element of a state tort does not warrant federal jurisdiction. - Dissent: Brennan:
There may be federal-question jurisdiction, even though both the
right asserted and the remedy sought by the plaintiff, are
state-created. The P’s right to relief depended upon a
construction of the Constitution or the laws of the US. Although
Congress did not create a federal cause of action or federal
remedy under the Act, it does not follow that Congress precluded
federal jurisdiction over state-law claims involving violations of
the Act. If Congress’s decision not to provide a private
federal remedy does not pre-empt such a state remedy, then it also
should not foreclose federal jurisdiction over the state remedy.
Federal courts are better able to interpret federal laws, and the
necessity of uniformity of decisions warrants federal
jurisdiction.- After Merrell:
The factors used in determining whether there is a federal cause
of action are:- Whether the statute
was passed for the benefit of individuals like Plaintiffs; - Whether there was
a congressional purpose that there be a private cause of action; - Whether the
federal cause of action would further the purposes of the
statutory/regulatory scheme; and - Whether the cause
of action is usually under state law.
- Whether the statute
- After Merrell:
- Rule: A
- If National
Interest In Providing Federal Forum Is Sufficient, Might Support
Exercise of Federal Question Jurisdiction – Note Case: Grable
& Sons Metal Products, Inc. v. Darue Engineering &
Manufacturing- Supreme Court resolved
the Merrell Dow split and held that the absence of a
federal cause of action is not inevitably fatal to federal
jurisdiction.
- Supreme Court resolved
- The Constitution gives
- The Subject Matter
Jurisdiction of The Federal Courts – Supplemental Claims and Parties- You have to have
diversity/amount in controversy or a federal question to be heard
in federal court. However, these can just be ways to get your foot
in the door. Once that foot is in the door, supplemental claims
allow the parties to attempt to bring up other claims that
otherwise wouldn’t have been good enough to get them to federal
court. - Supplemental
Jurisdiction Statute §
1367- 1367(a) states except as
provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the
district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution. Such
supplemental jurisdiction shall include claims that involve the
joinder or intervention of additional parties. - 1367(b) states in any
civil action of which the district courts have original
jurisdiction founded solely on section 1332 of this title, the
district courts shall not have supplemental jurisdiction under
subsection (a) over claims by plaintiffs against persons made
parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil
Procedure, or over claims by persons proposed to be joined as
plaintiffs under Rule 19 of such rules, or seeking to intervene as
plaintiffs under Rule 24 of such rules, when exercising
supplemental jurisdiction over such claims would be inconsistent
with the jurisdictional requirements of section 1332. - 1367(c) states the
district courts may decline to exercise supplemental jurisdiction
over a claim under subsection (a) if- The claim raises
a novel or complex issue of State law, - The claim
substantially predominates over the claim or claims over which
the district court has original jurisdiction, - The district court
has dismissed all claims over which it has original jurisdiction,
or - In exceptional
circumstances, there are other compelling reasons for declining
jurisdiction.
- The claim raises
- 1367 (b) “over
claims by plaintiff against persons made parties by the following
rules (we’ll learn later)” in confliction with the diversity
statute (1332) – so if P sues D and D brings in another D from the
same state as P, then it would still have diversity because of
1367(b). However, D2 would only have to pay D1 because there is no
claim from P.
- 1367(a) states except as
- Under the doctrine of
supplemental jurisdiction, new parties and new claims may not have
to independently satisfy subject-matter jurisdiction – they can
in effect be “tacked on” to the “core” controversy.
Replaces two older judge made doctrines, pendant and ancillary
jurisdiction.- Pendent Jurisdiction has
been used when the plaintiff, in her complaint, appends a claim
possessing such a basis. - Ancillary
Jurisdiction has been used when either a plaintiff or a defendant
injects a claim lacking an independent basis for jurisdiction by
way of a counterclaim, cross-claim, or third party complaint.
- Pendent Jurisdiction has
- Yes – If State
and Federal Claim From Common Nucleus of Facts – United
Mine Workers of America v. Gibbs- Rule: Under the
doctrine of pendent jurisdiction, if the federal claim and the
state claim arise from the same “case or controversy,”
the federal court can exercise jurisdiction over the state claim
as well. If the federal and state claims arise from a “common
nucleus of operative fact,” then they comprise the same case
or controversy. The court should not exercise jurisdiction if
there would be high risk of jury confusion, the federal claims are
dismissed, or it would otherwise preserve judicial expenses. - Rationale:
Pendent jurisdiction exists whenever the state and federal claims
are so closely related as to comprise one constitutional case. It
is a doctrine of discretion, based on considerations of judicial
economy, convenience, and fairness to litigants. A federal court
should not exercise pendent jurisdiction if the state issues
predominate. It is unwarranted if there is a substantial
likelihood of a jury confusing the legal theories of the federal
and state claims. Dismissal of the pendent state law claims would
be warranted only if the federal claims were dismissed before
trial. - Three Factors Must be
Considered:- Judicial economy
- Convenience
- Fairness to the
litigants.
- The exercise of
pendent jurisdiction must be judged by whether it furthers some
federal policy. Pendent jurisdiction serves two purposes: 1) it
ensures that litigants will not be dissuaded from maintaining
their federal rights in a federal court solely because they can
dispose of all claims by one litigation in the state but not the
federal form and 2) assuming that the litigants are in a federal
forum, pendent jurisdiction serves the interest of avoiding
piecemeal litigation, thus promoting judicial economy and greater
expedition for litigants.
- Rule: Under the
- Pendant Party
Jurisdiction is Sometimes OK – Aldinger v. Howard
- Rule: A
federal court may grant pendent party jurisdiction to a state
claim against a defendant which is derived from a common nucleus
of operative fact with a federal claim against a separate
defendant, if the statutory grant of subject-matter jurisdiction
did not expressly or impliedly negate such joinder or if judicial
efficiency warrants such joinder. - Rationale: The
Supreme Court refused to apply pendent jurisdiction to an
additional party with respect to whom no independent basis of
federal jurisdiction existed. Gibbs was distinguished on two
grounds: 1) The addition of a completely new party would run
counter to the well-established principle that federal courts, as
opposed to state trial courts of general jurisdiction, are courts
of limited jurisdiction marked out by Congress and 2) by virtue of
the statutory grant of subject-matter jurisdiction, Congress has
addressed itself to the party as to whom jurisdiction pendent to
the principal claim is sought.
- Rule: A
- Diversity – When
A Pendant Party Destroys Complete Diversity Then No Federal
Jurisdiction- Owen Equipment & Erection Co. v. Kroger- Rule: A federal
court does not retain jurisdiction over an action, based on
diversity of citizenship, when the plaintiff adds a pendent party
defendant who destroys complete diversity. - Rationale: Beyond
the constitutional minimum, there must be an examination of the
posture in which the nonfederal claim is asserted and of the
specific statute that confers jurisdiction over the federal claim,
in order to determine whether “Congress in the statutes
conferring jurisdiction has not expressly or by implication
negated” the exercise of jurisdiction over the particular
nonfederal claim. § 1332(a)(1) requires complete diversity of
citizenship and diversity jurisdiction is not to be available when
any plaintiff is a citizen of the same State as any defendant.
Complete diversity was destroyed; the statutory requirement of
complete diversity cannot be defeated by the simply expedient of
suing only those defendants who were of diverse citizenship and
waiting for them to implead nondiverse defendants.
- Rule: A federal
- Congress Must
Specifically Authorize Pendant Party Jurisdiction – Finley
v. United States- Rule: In
order to obtain pendent party jurisdiction, the statute conferring
federal jurisdiction must expressly authorize pendent party
jurisdiction. - Reasoning: Two
things are necessary to create jurisdiction, whether original or
appellate – The Constitution must have given to the court the
capacity to take it, and an act of Congress must have supplied it.
This case was distinguished from Gibbs in that it brings into
question pendent party jurisdiction or jurisdiction over parties
not named in any claim that is independently cognizable by the
federal court. With respect to the addition of parties, as
opposed to the addition of only claims, the court will not assume
that the full constitutional power has been congressionally
authorized, and will not read jurisdictional statutes broadly.
- Rule: In
- Finley prompts
Congress to pass § 1367
because the court held in Aldinger that before a federal
court may exercise pendent party jurisdiction it must satisfy
itself that Congress has not “expressly or by implication
negated its existence” and then instructed that “a grant
of jurisdiction over claims involving particular parties does not
itself confer jurisdiction over additional claims by or against
different parties.”- Supplemental Claims
and Parties are OK §1367 (a) Except for the exceptions – in
any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims
in the action within such original jurisdiction that they form
part of the same case or controversy under Article III of the US
Constitution. Such supplemental jurisdiction shall include claims
that involve the joinder or intervention of additional parties.- This includes
additional claims asserted by plaintiff as well as cross-claims
and counter claims.
- This includes
- Limits on
Supplemental Jurisdiction – § 1367(b) – A federal court
does not retain jurisdiction over an action, based on diversity of
citizenship, when the plaintiff adds a pendent party defendant who
destroys complete diversity- fully implements the Kroger
rationale by prohibiting the district courts, in actions founded
solely on the diversity statute, from exercising supplemental
jurisdiction over claims by plaintiffs against persons made
parties through any of several of the joinder devices of the
Federal Rules when doing so would be inconsistent with the
jurisdictional requirements of section 1332. It also prohibits
the exercise of supplemental jurisdiction in connection with the
joinder or intervention of persons as plaintiffs when it would be
inconsistent with section 1332 - Courts Discretion
– § 1367(c): provides federal courts with discretion in some
circumstances to decline to exercise supplemental jurisdiction.
It codifies those factors that the Supreme Court in Gibbs
recognized as providing a sound basis for a lower court’s
discretionary decision to decline supplemental jurisdiction. It
also accommodates exceptional circumstances, not defined, in which
grounds for dismissal of the supplemental claim may be compelling.
In each of these circumstances, the district court in exercising
its discretion must undertake a case-specific analysis.- The claim raises a
novel or complex issue of state law. - The state claim
substantially predominates over the claim or claims over which
the court has original jurisdiction. - The district court has
dismissed all claims over which is had original jurisdiction. - In exceptional
circumstances, there are other compelling reasons for declining
jurisdiction.
- The claim raises a
- § 1367(d):
providing a period of tolling of statutes of limitations for any
supplemental claim that is dismissed and for any other claims
voluntarily dismissed at the same time or thereafter. - P Couldn’t Implead
A Non-Diverse Party In Defense Against A Counterclaim – Note
Case: Guaranteed Systems, Inc. v. American National Can
Co.- The defendant,
after removing the action on the ground of diversity, asserted a
counterclaim against the plaintiff. The plaintiff’s motion to
implead a non-diverse third-party in defense against the
counterclaim was denied by the court. - Critic of § 1367(b)
states that the section states: 1) if a claim is asserted against
diversity plaintiff, she cannot implead a nondiverse third-party
defendant who may owe her indemnity or contribution; 2) if a
claim is asserted against diversity plaintiff, she cannot assert
a cross-claim against a nondiverse co-plaintiff; 3) a nondiverse
third-party defendant may assert a claim against the diversity
plaintiff, but the diversity plaintiff cannot assert a compulsory
counterclaim in response; 4) diversity plaintiff cannot assert a
claim against a nondiverse intervenor or necessary party, even
though their claims against her will invoke supplemental
jurisdiction.
- The defendant,
- Court Can
Exercise Supplemental Jurisdiction Over Joined Plaintiff Not
Meeting Amount In Controversy Requirement – Note Case: Exxon
Mobil Corp. v. Allapattah Services, Inc.- In 5/4 decision,
Supreme Court held that a federal court in a diversity action may
exercise supplemental jurisdiction over additional plaintiffs
whose claims do not satisfy the minimum amount-in-controversy
requirement, provided the claims are part of the same case or
controversy as the claims of plaintiffs who do allege a
sufficient amount in controversy.
- In 5/4 decision,
- When Federal
Basis For Action Disappears, Court May Decide Whether to Assert
Jurisdiction Over Remaining Claims – Note Case: Shanaghan
v. Cahill- The Fourth Circuit
ruled that, when the federal basis for an action disappears, a
district court is free to decide whether to assert jurisdiction
over the remaining claims, in accordance with section 1367.
- The Fourth Circuit
- Executive
Software North America, Inc. v. US District Court For the Central
District of California- Rule: In order
for a court to decline to exercise jurisdiction over supplemental
state law claims pursuant to 28 U.S.C. § 1367, the district
court must find that one of the circumstances under 28 U.S.C. §
1367(c) exist and articulate the circumstances in the order
declining jurisdiction. - Rationale: This
case illustrates that if a District Court declines to exercise
supplemental jurisdiction over state law claims that arise from
the common nucleus of operative fact of the federal law claims,
there must be articulated reasons that are mentioned in the
statute in order to remand to state court. In enacting 28 U.S.C.
§ 1367(c), Congress has delineated specific circumstances in
which a federal court can decline to exercise jurisdiction over
state law claims. Under Section (c)(1)-(3), the District Court
can use these exceptions so long as it agrees with the policies
of “economy, convenience, fairness and comity.” Under
Section (c)(4), the District Court must use these exceptions only
in exceptional circumstances and must articulate what the
compelling reasons for declining jurisdiction are.
- Rule: In order
- Supplemental Claims
- You have to have
- Removal
- Basic Rules of §1441.
- D can remove to federal
court if it’s a federal question claim. - D can remove to federal
court on diversity if he’s sued in another state. - D can remove separate
and independent claims that joined w/ unremovable claims in one
group. - P can never remove
(should’ve filed it in federal court if that is where P wanted
lawsuit heard) - Same rules of Federal
Question, Diversity, and Amount in Controversy apply. - Section 1446(b)
requires the notice of removal to be filed by the defendant within
30 days of receipt of the initial pleading or service of summons.
The Supreme Court ruled that only formal service of process
initiates the removal period. - A plaintiff may
choose to avoid federal jurisdiction by pleading only state law
claims or joining parties who will destroy diversity jurisdiction.
There are three exceptions:- A plaintiff may not
defeat diversity jurisdiction by fraudulently joining a defendant
against whom the plaintiff has no cause of action. - The plaintiff may not
disguise federal causes of action that would make the case
removable (artful pleading). - A version of artful
pleading mandates that certain causes of action are so
exclusively federal in character that even if the plaintiff does
not plead them, they will completely preempt any state cause of
action and make any cause of action the plaintiff attempts to
plead federal, and, therefore, removable.
- A plaintiff may not
- § 1445 –
Non-removable claims- Plaintiff cannot remove
- Railroad
- A carrier unless over
$10k - State worker’s
compensation claim - Federal Violence
Against Women Act
- § 1446 – Time
Line for Removal- When a claim is filed,
anytime after that it becomes removable within thirty days- If it is a diversity
claim and a party drops out or settles, if it has been over a
year, the case cannot be removed. If it is within one year, the
case can be removed within 30 days.
- If it is a diversity
- When a claim is filed,
- Remand – a judge’s
decision to remand a case back to state court is not appealable. - Date of removal
filing is when the case is analyzed. - A case can be
amended to include Federal Jurisdiction, but not amended by the P
to defeat it.- Exception –
Diversity cases present an exception to the rule that
removability is determined as of the time when the notice of
removal is filed. It must exist at the time of filing and at
notice of removal.
- Exception –
- D can remove to federal
- P Can’t Remove
to State Court if D brings up Federal Counterclaim – Shamrock
Oil & Gas Corp. v. Sheets- Rule: A plaintiff
may not remove a state-court action to the federal courts, even if
a defendant brings a counterclaim that satisfies the requirements
for federal jurisdiction. - Rationale: The
court mentions that while the act of 1875 allowed for a suit to be
removed by either party, the act of 1887 changed the wording to
include only “defendants”.
- Rule: A plaintiff
- Third Party D May
Not Remove to Federal Court Note Case: First National
Bank of Pulaski v. Curry- Court held that third
party defendants may not remove an action to federal court. They
explained that although Shamrock Oil was not dispositive of the
precise issue before them, it dictated that the phrase “the
defendant or the defendants” as used in 1441(a) be interpreted
narrowly, to refer to defendants in the traditional sense of
parties against whom the plaintiff asserts claims.
- Court held that third
- If a case is removed
erroneously, a federal court must remand it to state court. See
Section 1447(c). Section 1447(d) states that a remand order is not
reviewable, except in civil rights cases pursuant to Section 1447. - Under
1441(c), whenever a separate and
independent claim or cause of action within the jurisdiction
conferred by section 1331
is joined with one or more otherwise non-removable claims or causes
of action, the entire case may be removed and the district court
may determine all issues therein, or, in its discretion, may remand
all matters in which State law predominates.- Separate and
Independent Claims must be TRULY Separate – American
Fire & Cas. Co. v. Finn- Rule: A
claim may not be removed pursuant to § 1441(c) unless the claim
is separate and independent from one or more otherwise
non-removable claims. - Rationale: The
Finn Court concluded that “where there is a single wrong to
plaintiffs, for which relief is sought, arising from an
interlocked series of transactions, there is no separate and
independent claim or cause of action under § 1441(c).”
- Rule: A
- A District
Court’s Discretion To Remand Under § 1441(C) Can Pertain Only
To Those State Law Claims That The District Court Could Decline To
Hear Under § 1367. – Borough of West Mifflin v.
Lancaster- Rule:
Remand of a case is governed exclusively by statute. Under §
1441(c), “Whenever a separate and independent claim or cause
of action within the jurisdiction of [Section] 1331 of this title
is joined with one or more otherwise non-removable claims or
causes of action, the entire case may be removed and the district
court may determine all issues therein, or, in its discretion,
may remand all matters in which State law predominates.” - Rationale:
Under § 1367(c), a district court has discretion to decline to
hear certain state law claims it would have supplemental
jurisdiction to entertain. However, nothing in this
section permits the district court to decline to
hear claims it has original jurisdiction over, i.e. the
federal civil rights claim. Therefore, remand of the entire case
is inappropriate even if the state law claims were properly
remanded. The state law claims were not even properly remanded to
the state court. Section 1367(c) permits remand at the discretion
of the district court. The key language for purposes of the
present case is that the federal claim must be “separate and
independent” from the state law claims. In other words, the
entire case is not removable if the federal claim and the state
claims arise out of the same transaction or series of events.
Here, the federal civil rights claim does arise out of the same
series of events as the state law claims, namely, the plaintiffs
being accosted and arrested. Therefore, removal under § 1441(c)
was appropriate and remand of the case to state court is clearly
forbidden.
- Rule:
- Separate and
- Basic Rules of §1441.
- Challenging the
Subject-Matter Jurisdiction of the Court- Four ways to attack
subject-matter jurisdiction:- 12(b)(1) Motion made
over lack of jurisdiction (must be made 20 days after service) - 12(h)(3) If either
party suggests lack of subject matter jurisdiction, court shall
dismiss action. - 60(b)(4) Even after
judgment is final, can move to vacate that judgment because the
court lacks subject-matter jurisdiction. - Can argue on appeal.
- 12(b)(1) Motion made
- Direct Attack on a
Court’s Lack of Subject-Matter Jurisdiction- Federal Rules of Civil
Procedure 8(a)(1), 12(b)(1), and (h)(3), 60(b)(4), and Official
Form 2, and § 1653 - In the federal courts a
lack of subject-matter jurisdiction may be asserted at any time by
any interested party, either in the answer, or in the form of a
suggestion to the court prior to final judgment or on appeal.
Parties may not create the jurisdiction of a federal court by
agreement or by consent. - No Need to Decide PJ
before SJ – Note Case: Ruhrgas Ag v. Marathon Oil Co.
- The Supreme Court
held that since both subject matter and personal jurisdiction are
required by the Constitution and affect a federal court’s power
to adjudicate a case, there is no reason to require a district
court to decide one before the other.
- The Supreme Court
- Situation in
Which Defects in Subject Matter Jurisdiction Should Be Immune From
Direct Attack – Note Case: Di Frischia v. New York
Central R. Co.- D initially objected to
jurisdiction, asserting lack of diversity, but then withdrew the
objection. After the statute of limitations ran out, D then
reasserted objection. District court dismissed action, but Third
Circuit reversed, refusing to permit D to play “fast and loose
with judicial machinery and deceive the courts.”- This case has been
criticized and distinguished as limited to its facts.
- This case has been
- D initially objected to
- Have to Follow
Restraining Orders – Even W/O SMJ – Note Case: United
States v. United Mine Workers- Obedience to a
temporary restraining order is required, even though the issuing
court may lack subject-matter jurisdiction or otherwise may have
based its decision on an incorrect view of the law, unless there
is no opportunity for effective appellate review of the decree.
- Obedience to a
- The Federal Court
May Impose Sanctions Upon A Plaintiff Pursuant To Federal Rule 11
Even If It Lacks Subject-Matter Jurisdiction – Willy v.
Coastal Corp.- P brought a
wrongful discharge action against employer, who removed to
federal court. Court dismissed claim and imposed sanctions on P
pursuant to Rule 11. P appealed, but Supreme Court upheld ability
of District Court to impose sanctions because such an order
implicates no constitutional concern and does not raise the issue
of a district court adjudicating the merits of a case over which
it lacks jurisdiction.
- P brought a
- Federal Rules of Civil
- Collateral Attack
on a Judgment for Lack of Subject-Matter Jurisdiction- Collateral attacks
are not usually permissible against federal courts. Can only
do so if subject-matter jurisdiction was obviously lacking,
allowing the judgment to stand would substantially infringe on the
authority of another court, or a court lacking the capability to
make an informed determination rendered the judgment.- A judgment rendered
by a court that lacked jurisdiction over the subject matter is
void and a nullity. A collateral attack is not always an
available technique for challenging a judgment on the ground that
the rendering court lacked subject-matter jurisdiction.
- A judgment rendered
- The Restatement
(Second) Judgments takes the approach that the judgment in a
contested action, whether or not the question of subject-matter
jurisdiction actually was litigated, is beyond collateral attack
unless there are no justifiable interests of reliance that must be
protected, and:- The subject matter of
the action was so plainly beyond the court’s jurisdiction that
its entertaining the action was a manifest abuse of authority; or - Allowing the judgment
to stand would substantially infringe the authority of another
tribunal or agency of government; or - A court lacking
capability to make an adequately informed determination of a
question concerning its own jurisdiction rendered the judgment
and as a matter of procedural fairness the party seeking to avoid
the judgment should have opportunity belatedly to attack the
court’s subject-matter jurisdiction.
- The subject matter of
- Supreme Court
Refuses to Allow Collateral Act – Chicot County Drainage
Dist. v. Baxter State Bank- Parties who had notice
chose not to appear in the original action then attempted to
attack collaterally a judgment rendered by a district court. The
Supreme Court refused to allow the attack saying, “if the
general principles governing the defense of res judicata are
applicable, [respondents] having the opportunity to raise the
question of invalidity, were not the less bound by the decree
because they failed to raise it.”
- Parties who had notice
- Supreme Court
Allowed Collateral Attack – Kalb v. Feuerstein- The Supreme Court
stated that while it is generally true that a judgment by a court
of competent jurisdiction bears a presumption of regularity and
is not subject to collateral attack, Congress may create an
exception to that principle and render judicial acts taken with
respect to the person or property of a debtor whom the bankruptcy
law protect nullities and vulnerable collaterally.
- The Supreme Court
- Collateral Attack
Not Allowed When Questions Have Been Fairly Decided in Original
Court – Durfee v. Duke- A Missouri federal
District Court allowed collateral attack on a Nebraska judgment
quieting title to a tract of bottom land n the Missouri River, on
the ground that considerations of territorial sovereignty
outweighed policies of res judicata. The Supreme Court reversed
on the grounds that a judgment is entitled to full faith and
credit when the second court’s inquiry discloses that those
questions have been fully and fairly litigated and finally
decided in the court that rendered the original judgment.
- A Missouri federal
- Recent Example of
Supreme Court’s Attitude Toward Collateral Attack – United
States Catholic Conference v. Abortion Rights Mobilization, Inc.- D sued to revoke the
tax-exempt status of the Roman Catholic Church because of the
church’s intervention in favor of political candidates who
supported the church’s position on abortion. ARM served P with
a subpoena seeking evidence to support its claims. P refused to
comply with subpoena and was held in civil contempt with a fine
of $50,000 per day for further noncompliance. The Supreme Court
held that a nonparty witness, the Conference, could challenge the
court’s lack of subject matter jurisdiction in defense of a
civil contempt citation.
- D sued to revoke the
- Collateral attacks
- Four ways to attack
- Venue,
Transfer, and Forum non Conveniens
- Venue
- General Principles
- Venue means the place of
the trial in an action within a state. - Venue has two parts:
- Mandatory –
You cannot file a lawsuit in a place where venue is not proper
(1406(a)) - Discretionary –
Sometimes even if the lawsuit is filed in the proper venue, it
will end up being heard somewhere else (1404(a))
- Mandatory –
- A comparative study
of contemporary venue provisions reveals some thirteen different
fact situations upon which venue statutes are predicated.- Where the subject of
action or part thereof is situated. - Where the cause of
action, or part thereof, arose or accrued. - Where some fact is
present or happened. - Where D resides.
- Where D is doing
business. - Where D has an office
or place of business, or an agent, or representative, or when an
agent or officer resides. - Where P resides.
- Where P is doing
business. - Where D may be found.
- Where D may be summoned
or served. - In the county
designated in P’s complaint. - In any county.
- Where the seat of
government is located.
- Where the subject of
- Note Case:
Burlington Northern R.R. Co. v. Ford- D raised a challenge to
Montana’s venue rules on the ground that they violated the
Equal Protection Clause of the 14th Amendment. The Supreme Court
upheld the constitutionality of the state’s venue rules because
the forum preferable to one party may be undesirable to another
and the adjustment of such warring interests is a valid state
concern. In striking the balance between them, a State may have a
number of choices, any of which would survive scrutiny, each of
them passable under the standard tolerating some play in the
joins of governmental machinery.
- D raised a challenge to
- Venue means the place of
- Local and
Transitory Actions- The distinction
between local and transitory actions:- Local actions are
cases involving a piece of local, real, non-movable property. - Transitory actions are
cases that happen to anything movable and can arise anywhere.
- Local actions are
- Modern Trend in
Local and Transitory Actions – Reasor-Hill Corp. v.
Harrison- Rule: A lawsuit
is maintainable for injury to real property located outside the
forum state as long as the forum state has personal jurisdiction
over the defendant. - Rationale: Although
traditionally cases involving real property were considered local
actions and could only be brought where the property was located,
this case articulates the modern trend. Policies supporting the
traditional rule are expressed in the dissenting opinion. - Dissent: Justice
McFadden: It is not simple to decide questions of title from
other states. In addition, each state is its own sovereign and
there are certain issues that certain states must decide.
Finally, providing a haven for delinquent citizens is an issue
for the legislature, not the courts.- Livingstone v.
Jefferson is the leading case in the US. That suit was
part of the famous litigation between Edward Livingstone and
Thomas Jefferson. The case was heard by Marshall as circuit
justice and Tyler as district judge. Both agreed that the suit,
which was for a wrongful entry upon land in LA, could not be
maintained in VA. American courts rely almost uniformly upon
this case for the following three reasons:- First, the ground
most frequently relied upon is that the courts are not in a
position to pass upon the title to land outside the
jurisdiction. - Second, it has been
argued that since the tort must take place where the land is
situated, P should pursue his remedy before D leaves the
jurisdiction. - Third, there is an
understandable reluctance to subject one’s own citizens to
suit by aliens, especially if the other jurisdiction would
provide no redress if the situation were reversed.
- First, the ground
- Livingstone v.
- Rule: A lawsuit
- The distinction
- Venue in the
Federal Courts- 28 U.S.C. §1391 –
The General Federal Venue Statute- Diversity action
must be brought only in- A judicial
district where any D resides, and if there is more than one D,
if all D’s from the same state - A judicial district in
which a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of the property
that is the subject of the action is situated - Escape Hatch: A
judicial district in which any defendant is subject to personal
jurisdiction at the time the action was commenced, if there is
no district in which the action may otherwise be brought.
- A judicial
- Not solely on
Diversity – may be brought in- A judicial district
where any defendant resides, if all D’s reside in the same
state - A judicial district in
which a substantial part of the events or omission giving rise
to the claim occurred, or where the property is situated - Escape hatch: A
judicial district in which any D may be found, if there is no
district in which the action may otherwise be brought.
- A judicial district
- Corporations –
are deemed to reside in any judicial district in which it is
subject to personal jurisdiction. In a state w/ more than one
district in which a D that is a corporation is subject to
personal jurisdiction at the time an action is commenced if it
had PJ in that district as if it were a state. If no venue
qualifies, then the venue that it has the MOST contacts with.
- Diversity action
- Three methods of
determining venue – §1391 gives three basic methods for
determining whether there is venue in a particular district- If any D resides in
that district, and all the D’s reside in the state containing
that district (good for Diversity and Federal Question cases) - If a substantial part
of the property that is the subject is situated in the district
(applicable to both Diversity and Federal Question cases). - If all D’s are in
some sense reachable in the district and there is no district in
which the action may otherwise be brought.
- If any D resides in
- Debtors – Bates
v. C & S Adjusters, Inc.- Rule: Venue is
proper in the district in which a debtor resides and to which a
collection notice was forwarded. - Rationale: §
1391 allows an action to be brought in “a judicial district in
which a substantial part of the events or omissions giving rise
to the claim occurred.” Receipt of a collection notice is a
“substantial part of events giving rise to a claim” and the
place where that notice was received constitutes proper venue.
The events giving rise to the claim do not necessarily have to be
intentional.
- Rule: Venue is
- “Where the claim
for relief arose” = Bates provided for venue in “a
judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part
of the property that is the subject matter of the action is
situated.” - Unincorporated
Associations – Note Case: Denver & R.G.W.R. Co. v.
Brotherhood of Railroad Trainmen- Suit against
multi-state, unincorporated associations is permitted wherever it
is “doing business,” otherwise 1391(b) would seem to require
holding the association not suable at all or holding that the
association resides in any State in which any of its members
reside, which might present problems of inconvenience to
litigants and witnesses in conflict with the purpose of venue.
- Suit against
- 28 U.S.C. §1391 –
- General Principles
- Transfer of Venue
in Federal Courts- If P filed suit in
improper venue:- In answer, D says that
there is no venue and files for summary judgment. - Faster and more usual
method: file 12(b)(3) motion asking that the lawsuit be
dismissed without prejudice so that it can be re-filed in a proper
venue. - § 1406(a):
Mandatory transfer requirement.- Instead of
dismissing the lawsuit, asking court to transfer lawsuit to
proper venue, but this is discretionary on the court. - This can be done if the
statute of limitations expires while suit is in the improper
venue. If the suit is transferred, rather than dismissed, it is
considered filed before the expiration of the statute of
limitations and the case can be heard in the new venue.
- Instead of
- § 1404(a):
Discretionary transfer requirement- Not saying that P filed
in improper venue but that there is a better place to hear the
suit - It would be more
convenient to witnesses or parties to have the case transferred.
This is a very high burden to meet. Only if the convenience
factors are overwhelming can the case be transferred. - Must prove: 1) P’s
choice of forum should not be respected because there is a more
convenient venue and 2) (in both transfer statutes – § 1406 and
1404(a)) the transferee court could have heard the lawsuit to
begin with.
- Not saying that P filed
- Hypo: If there is a
lawsuit in VA, VA gets to decide what law applies. By contrast if
lawsuit was heard in CA, CA law applies. If case is transferred
from VA to CA under 1404(a), then VA law is still applied. The
transfer is meant to be more convenient for witnesses, etc., but
not necessarily to afford a change of law. If case was transferred
under 1406 motion, then CA law would be applied because the venue
was improper.- Sometimes lawsuits are
filed in one state to grab the law of that state and then
transferred under 1404(a) motion with the law following.
- Sometimes lawsuits are
- In federal question
cases, the law does not transfer across districts, so a federal
question case filed in CA and transferred to VA transfers from 9th
circuit to 4th circuit. Supreme Court does not want VA to pretend
its in 9th circuit. Federal law, unlike state law, is supposed to
be uniform. Sometimes laws will change because they have been
transferred across circuits and that sometimes will result in
injustice, but Supreme Court is willing to suck that up and allow
cases to be transferred. - Transfers must be to
a Ct. that the P could have initially filed in – Hoffman
v. Blaski- Rule: A federal
court in which suit was properly commenced was not entitled under
§1404(a) to transfer a case to a district in which the plaintiff
could not have properly commenced suit. - Rationale: To
allow the defendant that kind of power would grossly discriminate
against plaintiffs. By promising not to object to the transferee
venue, defendants would be able to transfer into any district
convenient to them. Plaintiffs, on the other hand, would still
be statutorily limited in their choices of venue and could not
freely motion to transfer because the defendant would still
retain the right to object to improper venue. - Hoffman has been
criticized and courts don’t want to extend it unnecessarily.
- Rule: A federal
- In Diversity
Cases, The Law Applicable In The Transferor Forum Follows The
Transfer – Note Case: Van Dusen v. Barrack- The Supreme Court
held that, in diversity cases, the law applicable in the
transferor forum follows the transfer.
- The Supreme Court
- Transferee forum
must apply transferor forum law – Note Case: Ferens v.
John Deere Co.- The Supreme Court
held that, in a diversity suit, the transferee forum is
required to apply the law of the transferor court, regardless
of who initiates the transfer.
- The Supreme Court
- §1406(a) –
permits the district court to dismiss “or if it be in the
interest of justice” to transfer a case to any district in which
it could have been brought when it was brought initially in a
court in which venue was improper. The law of the transferor
court cannot govern in the transferee court – cannot benefit
from filing in improper venue in diversity cases where state law
governs the issue. The exception is federal question cases. If
it’s federal law, it should be the same law across the US.
Federal law, however, is not the same everywhere. So, the law may
not be the same in the transferee court in federal question cases.- This provision should
be distinguished from §1404(a), which presupposes that venue in
the district of commencement is proper.
- This provision should
- The Federal Court
Can Transfer Venue Even If It Lacks Personal Jurisdiction Over The
Defendants – Note Case: Goldlawr Inc. v. Heiman
- The Supreme Court
held that Section 1406 authorizes a transfer even if the
transferor court lacks personal jurisdiction. The court said the
filing itself shows the proper diligence on the part of the P
that such statutes were intended to insure. If by reason of
uncertainties of proper venue a mistake is made, Congress, by the
enactment of 1406(a), recognized that “the interest of justice”
may require that the complaint not be dismissed but rather that
it be transferred in order that P not be penalized.
- The Supreme Court
- §1407:
provides for the temporary transfer to one district of related
complex cases such as multidistrict antitrust actions. Transfer
is appropriate when the cases involve common questions of fact and
law and when it would be for the convenience of the parties and
witnesses and in the interests of justice. This provision
frequently has been used to take advantage of coordinated pretrial
discovery. The statute authorizes consolidation of cases for
pretrial purposes only. - Note Case: Lexecon,
Inc. v. Milberg Weiss Bershad Hynes & Lerach- The Supreme Court
held that the language of §1407 requires the panel on
multidistrict litigation to remand cases consolidated under §1407
to their original courts for trial. Prior to this ruling, it was
common practice for transferee courts to transfer cases to
themselves for trial under 1404(a).
- The Supreme Court
- Patents and
copyrights, 28 U.S.C. § 1400
- In answer, D says that
- If P filed suit in
-
-
-
- Civil actions,
suits, or proceedings arising under any Act of Congress relating
to copyrights or exclusive rights in mask works or designs may be
instituted in the district in which the defendant or his agent
resides or may be found. - Any civil action
for patent infringement may be brought in the judicial district
where the defendant resides, or where the defendant has committed
acts of infringement and has a regular and established place of
business.
- Civil actions,
-
-
- Forum non
Conveniens- A court having
jurisdiction over a particular case may use is discretion to
decline that jurisdiction, if the court concludes that the action
could be more appropriately tried in some other jurisdiction.
Defendants usually raise, but a court can dismiss on FnC grounds
itself. - The
test for FnC – Gulf
Oil Corp. v. Gilbert
- A court having
- A court may resist
imposition upon its jurisdiction even when the letter of a general
venue statute authorizes jurisdiction. Courts should consider:
-
-
- The private interest
of the litigants- Ease of access to proof
– where is the evidence? What is the cost of witnesses to
court? Is view of premises necessary? - Enforceability of the
judgment? - Burden on the D?
- Residual factor –
anything else you can think of that affects the individual
litigants themselves? - Is the alternative
forum (a foreign country) so bad that it wouldn’t provide a
remedy or if the court thought the remedy is monstrously lame
either procedurally or substantively?
- Ease of access to proof
- Factors of public
interest.- Are courts congested,
juries without connection to litigants, want to make sure that
each jury has some interest, the localized interest in having
localized controversy decided at home, application of foreign
law?
- Are courts congested,
- The private interest
-
- If it’s a US P,
the factors must be overwhelming. When it’s a foreign P, need
only be slightly in favor of foreign tribunal. Don’t want
foreigners coming to US courts. The real parties in interest are
foreigners. The overlying test depends on citizenship.
-
- Unfavorable
Change in Law is Insufficient – Piper
Aircraft Co. v. Reyno
- Rule:
The
doctrine of forum non conveniens allows a court to dismiss a case
that was brought in the wrong forum. When all or most of the
significant events, witnesses and evidence are centered in one
location, then a court must dismiss a case brought in another
location under the doctrine of forum non conveniens unless the
alternate forum provides the plaintiff with absolutely no remedy.
Whether the law of the forum chosen by the plaintiff is more
favorable to the plaintiff should not be given weight. - Rationale:
Plaintiff
doesn’t want case to go to Scotland because they do not have
strict liability laws, only negligence. Supreme Court doesn’t care
about this argument in applying Gulf
Oil
test because it would require courts to compare laws of various
forums and this is what forum non conveniens dismissals are meant
to avoid. They also say that they do not mean it will never be a
relevant consideration where the law of the alternative forum is
inadequate or unsatisfactory, i.e. Scottish law said courts were
not empowered to hear airplane crash cases, even when they
occurred in Scotland or Scotland resolves cases by having a
dance-off. It has to be barbaric or outlandish. Choosing a
particular forum because the law is more favorable to the
plaintiff cannot be given any substantial weight under a forum non
conveniens analysis. Although the general rule is that a court
should not dismiss a case on grounds of forum non conveniens
unless there is an alternate forum in which the plaintiff can
pursue a remedy, this rule only requires that the plaintiff be
able to file a proper lawsuit in that alternate forum.
- Rule:
- There
Must Exist Another More Convenient Forum Where P Can Obtain Relief
– Note Case: Islamic
Republic of Iran v. Pahlavi- Lawsuit filed
against Shah of Iran to recover $35 billion in Iranian funds they
had allegedly misappropriated was dismissed on grounds of forum
non conveniens because Shah had no connection with forum state.
Court of appeals affirmed even though id appeared from the record
that no alternative forum was available to P because of the
political situation in Iran. Court of Appeals held that courts are
not required to entertain litigation that had no connection with
the state, especially when the burden on the state’s courts
would be tremendous and the availability of another forum is just
a “most important” factor to be considered.
- Lawsuit filed
- Unfavorable
-
- The Erie
Doctrine
- The Erie
- State
Law in the Federal Courts- Analyzing
Erie
Problems- Is this strictly a
diversity case?- If
yes, go to 2. - If
no, ignore Erie.
- If
- Is
there a federal statute on point?- If
yes, ignore Erie. - If no, go to 3.
- If
- Is
there a Federal Rule of Civil Procedure on point?- If yes, go to 4.
- If no, go to 5.
- Can
both the Federal Rule and state policy be followed simultaneously?- If yes, follow both
Federal Rule and state policy. - If
no, ignore Erie;
ask only whether Federal Rule is valid under the Rules Enabling
Act (Hanna).
- If yes, follow both
- Does
the federal policy conflict with the state rule or policy?- If yes, go to 6.
- If no, follow the
federal policy.
- Is
the area one of the few areas suitable for federal common law
(e.g., a defense raises a federal question)?- If yes, use federal
common law. - If no, go to 7.
- If yes, use federal
- Is
the state policy or rule basically procedural or basically
substantive?- If basically
procedural, go to 8. - If
basically substantive, follow the state policy or rule, as
required by Erie
v. Tompkins.
- If basically
- Is
the state policy weightier than the federal policy, viewed in the
context of a federal diversity suit? Consider
outcome-determinitiveness and forum shopping as non-dispositive
factors in deciding this.- If
state policy is weightier, follow the state policy. (Example:
Follow state statutes of limitations in Guaranty
Trust v. York.) - If
federal policy is weightier, follow the federal policy. (Example:
In deciding judge-jury allocation, follow federal, not state,
principles. Byrd
v. Blue Ridge.)
- If
- Always
analyze policy factors- Trying to discourage
forum shopping - Trying to create
uniformity (equal remedies under state & federal law)
- Trying to discourage
- Is this strictly a
- The
Rule of Swift
v. Tyson- Rule:
Federal courts must follow only state statutory laws, not state
judge-made common law, in cases in which state law applies. There
was a caveat, which was that federal courts had to follow state
laws and a whole bunch of other local laws pertaining to real
estate, etc.- §1652
Rules of Decision Act:
The laws of the several states, except where the Constitution or
treatises 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.
- §1652
- Rationale:
Decisions are not “laws” within the meaning of the Rules of
Decision Act. Common law is judge made law and doesn’t’ count.
- Rule:
- The Erie Doctrine:
The Rules of Decision Act and The Rules of Enabling Act- Reasons for
overruling Swift v. Tyson:- Swift
interpreted Rules of Decision Act incorrectly.
Professor Charles Warren published an article in the Harvard Law
Review that found an older version of the RDA that said federal
courts were supposed to apply state law, both written and
unwritten. - Swift
failed at creating uniformity.
The Court had hoped the states would see what the “enlightened”
view of the federal courts were and apply them in state courts,
but instead they kept applying their own laws. Also created some
uncertainty of its own because it was difficult to determine what
was local law and what had to be followed, etc. - Swift
created discrimination.
At first it was just that diversity cases in federal court got a
different result, but then it became an incentive for people to
create or destroy diversity (Taxi cab case) and the Court thought
that was sleazy. - Swift
is unconstitutional.
There is no federal common law and Swift allowed federal courts
to disregard state law and thus basically trounce state rights in
violation of the 10th amendment.
- Swift
- Erie
R. Co, v. Tompkins
- Rule:
Federal courts are required to apply the substantive common law
of the state in which they sit. - Rationale:
This
case articulates what is known as the “Erie doctrine”:
a federal court sitting in diversity applies substantive state
law. Erie expanded the definition of Section 34 of the Judiciary
Act of 1789 to include state court decisions. The two policies
emphasized in Erie: uniformity of state court decisions and
prevention of discrimination between residents and non-residents,
are mentioned frequently in subsequent decisions that support and
refine Erie. - Concurrence,
Reed:
The Swift
doctrine should have been overturned without analyzing the
constitutionality of that decision. The majority should have
read “laws” to include judge-made law rather than addressing
the constitutionality of Swift‘s
interpretation. Also, procedure may not be a rule of decision
(what law must get applied) so might not have to apply state law
anyway. Can make up procedural laws but must follow state law
when it is substantive laws. - Dissent,
Butler:
No constitutional question was suggested or argued, and it was
unnecessary in adjudicating this case. Congress requires that
the court first certify the constitutional question to the
Attorney General so that the US might intervene as a party and be
heard.
- Rule:
- Outcome
Determinative Test – Guaranty
Trust Co. v. York
- Rule:
In a
diversity suit brought in equity, an equitable right created by a
law of the state whose laws govern the case must be followed by a
federal district court if applying the federal law would
significantly affect the outcome of the case. - Reasoning:
If it is a substantive right, then the federal court must apply
state law. If it of remedial character, such as enforcing the
right, then the federal court need not follow state law. It is
not about whether or not the rule is procedural but whether it is
a means or a mode or a matter of substance. Another way of
putting this test is to ask if applying federal v. state law
would change the result of the suit. If it changes the result,
then it is bound up in the state substantive right. If does not
change the result or if it just marginally changes it, then it’s
merely a means and mode of enforcing that right. - Why this test?
- Sovereignty
– apply state law but in federal court way - Practical
– federal court does not want results to be different
depending on federal or state court – no forum shopping or
discrimination in results (outcome determinative test) - Since fed court gets
to apply same means and mode, fairly uniform procedure in
federal court
- Sovereignty
- Dissent:
Rutledge doesn’t like this outcome because he thinks that federal
courts always did their own thing procedurally and he doesn’t
think they should be required to switch over to doing what state
courts are doing simply because of Erie. He also points out that
if this is what Congress wanted after Erie then they would’ve
changed it in the 7 years since the Erie decision. He thinks they
are making federal courts too much like state courts.
- Rule:
- Use
State Statute Of Limitation Rules – Note Case: Ragan
v. Merchants Transfer & Warehouse Co.- P tried to use Rule 3
of the Federal Rules of Civil Procedure on statute of
limitations, D wanted to use KS law. The Supreme Court held that
Rule 3 of the Federal Rules was not intended to govern questions
concerning the tolling of statutes of limitations, and,
therefore, state law would determine in diversity when the
statute was tolled.
- P tried to use Rule 3
- Security
For Expenses Bond – Note Case: Cohen
v. Beneficial Industrial Loan Corp.- The Court held that a
federal court must apply a New Jersey statute requiring a
plaintiff in a shareholder derivative suit to post a
security-for-expenses bond – even though what is not Federal
Rule 23.1, which ostensibly governs such cases, did not require a
bond. The Court found that whether the New Jersey statute was
classified as procedural or substantive, it created substantive
liabilities for expenses. Rule 23.1 did not contradict the New
Jersey statute, but was addressed to independent concerns.
- The Court held that a
- Can’t
Maintain A Diversity Case In A Forum State When That State’s
Courts Are Closed To You – Note Case: Woods
v. Interstate Realty Co.
- The Court held that
a TN corporation that had not qualified to do business in MI
could not maintain a diversity action in a federal court in that
state if, by virtue of its failure to qualify, the MI state
courts were closed to it.
- The Court held that
- Substantive
Right + Outcome Determinative + Federal Policy – Byrd
v. Blue Ridge Rural Electric Cooperative, Inc.- Rule:
Federal courts may apply federal rules, even if state rules are
outcome-determinative, if federal policy in enacting the rules
outweighs state policy. - Rationale:
Although
the test for determining whether a state law should be applied
under Erie is whether it is “outcome determinative,”
the court must weigh the state’s interests in applying its own
law against the federal interest in applying federal law.
- Rule:
- Slight
Federal Interest Not Enough – Note Case: Allstate
Ins. Co. v. Charneski
- Federal
interest involved in this case not enough (unlike in Byrd):
slight federal interest consisted of general interest of the
court controlling its own procedure, general policy evidenced by
the federal Declaratory Judgment Act, federal government provides
a fair and orderly forum in which to try the diversity case,
relief under the Federal act is expressly discretionary
(permissive and not absolute). (no right to jury trial involved
here, WI law more connected with suit than federal government)
create unnecessary federal-state conflict.
- Federal
- Pre-Byrd
Case – Note Case: Bernhardt
v. Polygraphic Co. of America, Inc.
- The Supreme Court
held that a stay pending arbitration could be denied because VT
law, which permitted revocation of an arbitration provision any
time before an award was made, governed the arbitration
provision. They stated that if a federal court allows arbitration
where state court would disallow it, the outcome of litigation
might depend on the courthouse where the suit is brought.
- The Supreme Court
- IS
IT ARUGABLY
PROCEDURAL?
The
New Test Is Follow The Federal Law Unless It Is Invalid Under REA
Because It Modifies, Expands, Etc. A Substantive Right Or Is
Unconstitutional – Hanna
v. Plumer
- Rule:
If
the rule at issue is procedural and the federal rule is on point
with the state rule, then the Federal Rule must be applied as
long as it complies with the Rules Enabling Act, 28 U.S.C. §
2071 and the U.S. Constitution. If there is no federal rule on
point, then the Erie doctrine should apply.- Congress
passed Rules
Enabling Act § 2072
in 1934: - The Supreme Court
shall have the power to prescribe general rules of practice and
procedure and rules of evidence for cases in the United States
district courts (including proceedings before magistrates
thereof) and courts of appeals. - Such rules shall not
abridge, enlarge or modify any substantive right. All laws in
conflict with such rules shall be of no further force or effect
after such rules have taken effect.
- Congress
- Rationale:
Under
Guaranty
Trust Co.,
whether the state or federal law is to be applied is not just
whether the law is substantive or procedural, or whether it is
outcome determinative, but whether it complies with the policies
underlying the Erie doctrine.
Rule
4(d)(1) is not prohibited by the Constitution. Congress created
the Federal Rules to create uniformity in the federal court
system. The Erie doctrine and the extensions in York and Ragan
were not meant to block the federal rules if they are “outcome
determinative” or have “integral relations.”
Service of process is not a substantive right intended to be
enforced by the Erie decision because the method of service here
only “altered the mode of enforcing state-created rights”
rather than changing the actual rights. The majority opinion
illustrates that the federal interest in creating a uniform code
of procedure for the federal court system is secondary to the
state’s procedural laws. In the event there is a direct conflict,
the federal law must prevail so long as it complies with the
Rules Enabling Act and the U.S. Constitution. - Concurrence:
Justice
Harlan: The Court should focus on whether the rule applies to a
situation that is normally one left to state regulation.
- Rule:
- Helps
in Determining Procedural/Substantive – Note Case: Sibbach
v. Wilson & Co.- State law had a
rule against compulsory physical examinations. District Court
ordered P to undergo such an examination pursuant to Federal Rule
35. Supreme Court affirmed that decision because it felt that
Rule 35 does not abridge, enlarge, or modify substantive rights,
in the guise of regulating procedure. The test must be whether a
rule really regulates procedure – the judicial process for
enforcing rights and duties regulated by substantive law and for
justly administering remedy and redress for disregard or
infraction of them.- This is a good case
that demonstrates how to determine if something is a means to an
end (procedural) or the ends (substantive). Although poking and
prodding seems like it would be a substantive right, it is the
means to determine how much he would be owed if he were to prove
his case.
- This is a good case
- State law had a
- Walker v.
Armco Steel Corp.- Rule:
A
state’s provision tolling its statute of limitations should be
analyzed under the Erie doctrine. Consequently, a state’s tolling
provisions must apply if it would have prevented the plaintiff
from filing a suit in state court. In addition, Rule 3 does not
conflict with tolling provisions because it only refers to the
time a lawsuit commences under the Federal Rules. - Rationale:
Under
Hanna, a federal procedural rule must directly conflict with the
state law dealing with the same issue in order for the federal
rule to apply. In this situation, Rule 3 was interpreted not to
address the statute of limitations, and thus did not fall into
“direct conflict” with the Oklahoma state tolling
provisions. Since there was no federal rule, the old test would
apply and it would have to be determined if it was means/mode or
substantive and if it was outcome determinative (and if there is
a federal interest).
- Rule:
- Procedural
Federal Rules Trump State Law – Note Case: Burlington
Northern R. Co. v. Woods- D
had obtained a jury verdict against P in a PI action prosecuted
in an AL federal district court. After verdict had been affirmed
on appeal, court assessed penalty prescribed by AL law, but D
objected because it felt Rule 38 of FRCP applied (penalty only
applied if appeal was frivolous). The Supreme Court held that
Rule 38 controlled because under
Hanna,
the rule must be applied if it represents a valid exercise of
Congress’ rulemaking authority, which originates in the
Constitution and has been bestowed upon this court by the Rules
Enabling Act. Rule 38 regulates matters that can reasonably be
classified as procedural, thereby satisfying the constitutional
standard for validity. Its displacement of the AL statute also
satisfies the statutory constraints of the REA. The choice made
by the drafters of the FR in favor of a discretionary procedure
affects only the process of enforcing litigants’ rights and not
the rights themselves.
- D
- If
There Is Federal Law On Point Follow It, Unless It Violates The
REA Or Is Unconstitutional – Organization,
Inc. v. Ricoh Corp.- Rule:
The
federal policy of having district court judges consider interests
Congress has enumerated in a statute prevails over a state policy
disapproving certain means by which venue might be decided. - Rationale:
1404(a)
says if the balance of convenience favors it, you can transfer
from one venue to another. Court says this is sufficiently broad
because it allows judge to consider many different factors when
determining if transfer is appropriate whereas state law says
consider anything you want except forum selection clauses. It
gives an answer to the question, so we are in new test land. The
Alabama law articulated a clear policy against forum selection
clauses. The federal statute, by contrast, required consideration
of various factors such as bargaining power and convenience when
evaluating the validity of the forum selection clause. The laws
conflict because the Alabama law does not require consideration
of these additional factors. Therefore, federal law prevails.
- Rule:
- Reasons for
- The Problem of
Ascertaining State Law- Determining Which
State’s Law Governs- Choice-of-law
Rules: Choice
of law is a concept within the field of the conflict of laws,
relating to relationships between individual states. Under
certain circumstances, the courts of a particular legal
jurisdiction will be called upon to apply the law of a different
jurisdiction. This usually arises in the context of lawsuits
arising from torts or contracts. - Conflict
of Laws – Klaxon
Co. v. Stentor Electric Mfg. Co.- The
federal court must apply state law governing conflict of laws.
In other words, the conflict-of-law rules of the state where
the federal court sits
must be followed. The proper function of a federal court is to
ascertain what the state law is, not what it ought to be.
- The
- States
Given Significant Leeway In Establishing Choice-of-Law Rules –
Note Case: Allstate
Ins. Co. v. Hague- The Supreme Court held
that a state could apply its substantive law in a case, so long
as the state had significant contacts or a significant
aggregation of contacts with the parties and the transaction.
- The Supreme Court held
- If
Case Is Transferred Under 1404(a), State Law Travels With Case –
Note Case: Van
Dusen v. Barrack- A change of venue
under § 1404(a) generally should be, with respect to state law,
but a change of courtrooms.
- A change of venue
- Choice-of-law
- Ascertaining The
State Law- Even when you figure
out which state’s law to apply, discerning what the “state
law” actually is often presents a problem.- Black Letter:
Federal Court must apply the law of the state as that law is
either declared by statute and interpreted by the highest ct of
the state, or judicially declared by the highest ct of
the state. - When decisions of
the state’s highest court are very old or nonexistent, fed
court may look to lower court decisions (if available) or try to
declare state law as it would be declared by the highest state
court if the issue were to be presently tried before it.
- Black Letter:
- Court Does Not
Have to Apply State Law When Obvious That Highest Court Of That
State Wouldn’t Even Apply That Law – Mason v.
American Emery Wheel Works- Rule: The
District Court does not have to apply the state law to be
applied pursuant to the Erie doctrine if it is clear that the
highest court of that state would not follow the case precedent
that addresses the issue. - Rationale:
Federal district court applied state tort law as articulated
in a 1928 Mississippi decision (no duty where no privity).
Although that decision was never explicitly overruled, a much
more recent decision talked about “modern trends” in the
area and quoted with approval recent authorities in support of
the “modern doctrine” (duty even w/o privity). On appeal,
held that the Mississippi Supreme Court would undoubtedly agree
w/the MacPherson decision were the issue put before it so case
remanded to be decided under that standard. The majority’s
opinion demonstrates a situation where the federal court does
not have to apply a state’s case law under the Erie doctrine.
However, the court as well as the concurring opinion, emphasize
that the highest court of the state’s intent not to follow the
relevant case law must be clear. - Concurrence: It
is clear that the dicta in E.I. Dupont implies that the Supreme
Court of Mississippi no longer approves of the holding in Ford
Motor Co. However, when the situation is less clear, applying
the rule of this case will cause problems.
- Rule: The
- If State’s
Highest Court Has Not Addressed Issue, Look to All Relevant
Sources of State Law, Including Decisions in Analogous Cases and
Dicta – Note Case: McKenna v. Ortho Pharmaceutical- Court of Appeals,
trying to avoid “speculative crystal-ball gazing,” posited
that the process of ascertaining the law requires an examination
of all relevant sources of that state’s law in order to
isolate those factors that would inform its decision. In the
absence of authority directly on point, decisions by that court
in analogous cases provide useful indications of the court’s
probable disposition of a particular question of law. Considered
dicta by the state’s highest court may also provide a federal
court with reliable indicia of how the state tribunal might rule
on a particular question.
- Court of Appeals,
- It Is Never
Appropriate For a Diversity Court to Decline to Exercise
Jurisdiction When State Law Is Uncertain – Note Case: Meredith
v. Winter Haven- In the absence of some
recognized public policy or defined principle guiding the
exercise of the jurisdiction conferred, which would in
exceptional cases warrant its non-exercise, it has from the
first been deemed to be the duty of the federal courts, if their
jurisdiction is properly invoked, to decide questions of state
law whenever necessary to the rendition of a judgment. Where
such exceptional circumstances are not present, denial of the
opportunity to afford suitors the opportunity to assert their
rights in federal courts merely because the answers to the
questions of state law are difficult or uncertain or have not
yet been given by the highest court of the state, would thwart
the purpose of the jurisdictional act.
- In the absence of some
- Federal Court
Can Stay Proceedings For Interpretation by State’s Highest
Court – Note Case: Louisiana Power & Light Co. v.
City of Thibodaux- A District Court,
sitting in diversity, on its own motion, stayed its own
proceedings to permit LA’s highest court an opportunity to
interpret a state expropriation statute. The Supreme Court
upheld this exercise of equitable discretion as a wise and
productive discharge of judicial duty.
- A District Court,
- Court Can
Decline Certification if Delay Would Harm Interests of One or
Both Parties – Note Case: Tunick v. Safir- A photographer
challenged a locality’s refusal to grant him a permit to
conduct an outdoor photo shoot in NY based on a NY statute that
bans public nudity. Court of Appeals petitioned NY’s highest
court to resolve scope of ban, emphasizing the need for
expedition given the important 1st Amendment rights at stake.
Court declined to hear case because even with an expedited
schedule, Court’s decisional process would add months to the
case.
- A photographer
- Most Courts Are
Hesitant to Read Law Where There Is None – Note Case: Pomerantz
v. Clark- In a diversity action
by policyholders against an insurance company to retrieve for
the company certain sums allegedly improvidently and illegally
loaned, District Court held that no action was maintainable
under MA law and stated that a federal judge sitting in a
diversity jurisdiction case has not a roving commission to do
justice or develop the laws according to his or what he believes
to be the sounder, views. His task is to divine the views of the
state court judges. The emphasis is on precedent and adherence
to the older ways, not on creating new causes of action or
encouraging the use of novel judicial remedies that have sprung
up in less conservative communities. This basic philosophy
permeates the Mass. Rules governing derivative suits.
Therefore no action is maintainable under Mass. Law.
- In a diversity action
- District Court
Required to Adhere to Circuit Decisions When No State Cases On
Point – Note Case: Factors Etc., Inc. v. Pro Arts, Inc.
- Federal court
sitting in New York was required to apply TN law to the question
of whether Elvis Presley’s right to publicity survived his
death. TN state courts had never addressed that issue, but
the Sixth Circuit (which includes TN) had. The District Court
was bound by the Sixth Circuit’s view of TN Law. Sixth
Circuit was more familiar with TN law since it frequently was
required to interpret TN law. - Dissenting
Opinion: There was no reason to follow the 6th Circuit
views when they were not derived from the laws or decisions of
the state. Considering the physical size of the circuit,
and the relatively small number of diversity cases, 6th Circuit
was unlikely to have any special familiarity with TN law.
- Federal court
- Even when you figure
- Determining Which
- Federal “Common
Law”- Three Perspectives on
the Scope and Legitimacy of Federal Common Law Making Powers- Meltzer, State Court
Forfeitures of Federal Rights- In a variety of
subject matter jurisdictions, there may be federal common law:
US as party, strong federal interest, interstate disputes, etc. - Lawmaking power of
federal courts is far more limited than Congress for 2 reasons:
1. Ideas of separation of power and supremacy of Congress. 2.
Federal law is and should be “interstitial”, operating
against a background of existing bodies of state law. - Court has
recognized that federal common law may be necessary expedient. - Fed. Common law
fits most easily when it supplements federal constitutional or
statutory provisions, providing rules of decision that implement
or safeguard norms embodied in such provisions.
- In a variety of
- Field, Sources
of Law: The Scope of Federal Common Law- The received academic
tradition on common law assumes that there are particular
enclaves in which federal common law is in fact appropriate, but
that after Erie federal common law power is the
exception, not the rule. - He suggests that
judicial power to act is not limited to particular enclaves and
that it is much broader than the usual references to judicial
power would suggest. - He also suggests the
only limitation on courts’ power to create federal common law
is that the court must point to a federal enactment,
constitutional or statutory, that it interprets as authorizing
the federal common law rule.
- The received academic
- Kramer, The
Lawmaking Power of the Federal Courts- Defines federal common
law as any rule articulated by a court that is not easily found
on the face of an applicable statute. - Asks: Why let courts
make common law in a representative democracy? - Answers: Because
judge-made law is unavoidable. - Federal common law has
developed in several broad situations: in cases involving
important federal interests, in admiralty context, and in cases
implicating international relations of the United States.
- Defines federal common
- Meltzer, State Court
- Two reasons we
need federal “common law”- Gap cases – In a
perfect world when Congress passed a statute, it would tell
everything that needed to be known. However, we do not live in a
perfect world and when Congress passes a statute they usually do
so with broad, general terms. It is then up to the courts to fill
those gaps using federal law or state law. (Usually federal
question cases) - Federal interest
cases – Cases where we aren’t necessarily suing under a
federal statute (maybe on diversity grounds) but there is some
federal ingredient involved (area of federal interest) and there
is no law on point. (Usually cases that have failed Erie
test)
- Gap cases – In a
- The Traditional
Bases of Federal “Common Law”- Erie Doctrine Does
Not Apply In Cases Involving Legal Activities of US – Clearfield
Trust v. US- Rule: When
application of the law requires a determination of the rights
and obligations of the United States arising from a federal
source of law, the Erie doctrine does not apply. Federal courts
must interpret federal law to determine the legal and factual
issues of the case. - Rationale: This
case illustrates that there is still a federal common law in a
situation where the United States is a party and the issues
involve rights and obligations of the United States that come
from federal law. In this case, the Court must use case
precedent to interpret the United States’ right as drawee to
collect on a forged check. The Court’s creation of a general
rule regarding commercial paper demonstrates the Court’s ability
to create federal common law when circumstances warrant. - Test:
- First we must ask
if the court has the power to displace state law, which we do by
asking if there is some necessary federal ingredient. - The next question
is should the court exercise that power. - If there is a
federal interest and a state law, should ask if state law is
inconsistent with that interest.
- Rule: When
- Even When
Federal Law Controls, State Law Might Be Adopted Instead of
Creating Federal Common Law – Note Case: United States
v. Kimbell Foods, Inc.- Court broadly
interpreted Clearfield as permitting federal courts to develop
federal law for “questions involving the rights of the US
arising under nationwide federal programs. Having decided that
federal law controlled, the Court turned to the second and more
challenging task of determining the content of the federal law.
After weighing facts of federal interests with respect to
priority rules for the SBA and FHA loans, the Court held that
there was no need for an independent federal rule. Thus,
the court chose to adopt the state rule as federal law rather
than to develop a separate federal rule.
- Court broadly
- No Need For
Common Law In Every Case Involving Commercial Paper and US,
Especially When Is Two Private Parties – Note Case: Bank
of America National Trust & Savings Association v. Parnell- Court declined to
endorse a federal common-law rule of liability and held that
securities issued by the Government generate immediate interests
of the Government, but they also radiate interests in
transactions between private parties and does not touch the
rights and duties of US (in this case).
- Court declined to
- Decision That
May Remotely Affect the US’ Interests Is Not A Strong Enough
Reason To Warrant Application Of Federal Common Law – Miree
v. DeKalb County- Rule: Federal
common law does not apply in diversity cases unless the United
States’ rights and obligations would be substantially affected
by the outcome of the case. A decision that may remotely or upon
speculation, affect the United States’ interests is not a strong
enough reason to warrant application of federal common law. - Rationale: The
opinion shows that the rule articulated in Clearfield Trust Co.,
infra, requires a determination of the rights and obligations of
the United States, not other parties affected. In addition, even
though federal law specifically states that a contract does not
allow for a federal cause of action, this does not foreclose the
possibility of a state cause of action pursuant to the federal
law. This is why standing was analyzed under state law, to
determine if Georgia law would allow such a cause of action.
- Rule: Federal
- Government
Contractor Defense – Boyle v. United Technologies Corp.- Rule: The
Supreme Court came up with the government contractor defense,
which states that if a manufacturer makes a product in
compliance with the government’s design and production
requirements, but it was defective and caused injury, the victim
cannot sue the manufacturer. - Rationale: In
a 5-to4 decision, the Court held that despite the absence of
specific legislation immunizing government contractors from
liability for design flaws, questions of their liability are of
unique federal concern. As such, to the extent that it holds
military contractors liable for design flaws, state law may
significantly conflict with federal interests thereby requiring
its displacement. The Court added that in the instant case, such
displacement is appropriate since the United States approved the
helicopter’s specifications, the equipment met those
specifications, and Sikorsky warned the government of possible
dangers in the helicopter’s use. Finally, since the Court of
Appeals’ use of the “military contractor defense”
failed to specify if a reasonable jury could have found for
Boyle, the Court vacated its judgment and remanded. - Dissent: Justice
Brennan writes: There is no more reason for federal common law
to shield contractors now that the Government is liable for some
torts than there was when the Government was liable for none.
The discretionary function exception does not support an
immunity for the discretionary acts of Government contractors
any more than the exception for “[a]ny claim [against the
Government] arising out of assault,” supports a personal
immunity for Government employees who commit assaults. In short,
while the Court purports to divine whether Congress would object
to this suit, it inexplicably begins and ends its sortilege with
an exception to a statute that is itself inapplicable and whose
repeal would leave unchanged every relationship remotely
relevant to the accident underlying this suit. The tort system
is premised on the assumption that the imposition of liability
encourages actors to prevent any injury whose expected cost
exceeds the cost of prevention. If the system is working as it
should, Government contractors will design equipment to avoid
certain injuries (like the deaths of soldiers or Government
employees), which would be certain to burden the Government. The
Court therefore has no basis for its assumption that tort
liability will result in a net burden on the Government (let
alone a clearly excessive net burden) rather than a net gain.
- Rule: The
- Note Case: In
Re “Agent Orange” Product Liability Litigation- The court considered
the problem of a nationwide class action involving veterans from
all over the country who alleged injury resulting from the use
of toxic defoliants in Vietnam. It concluded that every state
court that would have adjudicated an Agent Orange class action
would have decided that a national rule of decision would have
been adopted by all other state courts adjudicating this type of
case. The need for a uniform rule of decision, the unique
relationship between the US and its servicemen, and the special
relationship between the US and its defense would have compelled
such an adoption.
- The court considered
- Note on Federal
Common Law and Federal Rules of Preclusion- The preclusive effect
(prevents two bites at the apple) of a federal judgment, even
when the federal court sits in diversity, is governed by federal
common law. In determining the content of the federal rule of
preclusion, the federal court may choose to borrow a state rule.
- The preclusive effect
- Erie Doctrine Does
- Federal Law in
the State Courts- State courts are often
called upon to construe and apply federal law.- Federal question
cases: Plaintiff can sue for federal statutes in state or
federal courts (state courts have concurrent jurisdiction over
almost all federal actions)
- Federal question
- When a state
attempts to adjudicate such a right, the Supremacy Clause of the
Constitution requires the application of federal law. - A federally created
right also may become germane to a state-court action when it is
interposed as a defense to a claim based on state law. - Federal
Law is Supreme in State Court When Action Is Brought Pursuant to
Federal Right – Dice
v. Akron, Canton & Youngstown R. Co.- Rule:
In
cases brought under the Federal Employers’ Liability Act
(FELA), federal law determines issues pertaining to the
employee’s ability to enforce his federal right. Fact issues
to be decided under FELA are determined by a jury in order to
comply with FELA and the Seventh Amendment to the U.S.
Constitution. - Rationale:
The
majority illustrates the supremacy of federal law in state court
action when the action is brought pursuant to a federal right,
such as under FELA. In order to reach its decision, the Court
had to determine that the Ohio rule permitting state court
judges to determine if fraud had occurred was a substantive rule
affecting the claim of the Plaintiff based on federal law.
Because the effect of the application of the state court rule
regarding judicial finding of fraud is to, in its application to
the facts presented here, preclude the Plaintiff’s federal law
claim, the state court rule may not be applied. - Concurrence:
Justice
Frankfurter found that the majority’s decision that the validity
of the release is determined by federal law to be correct.
However, the requirement by the Court that state courts in FELA
cases have juries determine issues of fraud is contrary to the
policy of allowing states to govern their own court systems.
There is no case or statute requiring that states give jury
trials for FELA cases so long as the state court does not have
jury trials for negligence cases. The majority opinion requires
Ohio to treat its FELA cases differently than other negligence
cases. This is undue interference with the state court system
and because it is not required by any precedent or statute, it
should not be imposed on the state courts.
- Rule:
- Local
Rules Cannot Defeat Federal Rights – Note Case: Brown
v. Western Ry. Of Alabama- The Supreme Court held
that a log series of cases previously decided, from which it
sees no reason to depart, makes it their duty to construe the
allegations of this complaint in order to determine whether
petitioner has been denied a right granted to him by Congress.
This federal right cannot be defeated by the forms of local
practice. Strict local rules of pleading cannot be used to
impose unnecessary burdens upon rights of recovery authorized by
federal law.
- The Supreme Court held
- Note Case: Federal
Energy Regulatory Commission v. Mississippi- The Supreme Court
upheld provisions of the Public Utilities Regulatory Policies
Act of 1978, which required state public utility commissions to
observer certain federal procedures in regulating energy usage.
The Court held that the state commissions could be required to
enforce federal standards. It upheld the mandatory
consideration requirement on the ground that Congress, having
power to preempt state regulation entirely, could adopt the less
intrusive scheme of PURPA.
- The Supreme Court
- State courts are often
- Three Perspectives on
- Analyzing
Modern
Pleading
- Pleadings
- Traditionally,
pleading rules served four functions:- Providing notice of the
nature of a claim or defense - Identifying baseless
claims - Setting each party’s
view of the facts - Narrowing the issues
- Providing notice of the
- Modern pleading rules
are generally not calculated to perform the last three of these
functions. - The Complaint
- Detail Required Under
the Codes- Although a majority of
states have adopted the federal pleading rules, a number still
follow all or part of the codes. - Not Sufficient
Complaint – Gillispie v. Goodyear Services Stores- Under NC code then in
force, P was required to make a “plain and concise statement
of the facts constituting a cause of action.” NC cases
interpreting the pleading standards had stated that the
complaint must “disclose the issuable facts” and allege “the
material, essential, ultimate facts upon which P’s right of
action is based.” The court held that the allegations in P’s
pleading were insufficient, noting that the pleading was
necessary not only to enable the opposing party to respond, but
also to enable the court to declare the law upon the facts
stated. The court could not do so if “a mere legal conclusion”
such as “assault” or “trespass” is stated.
- Under NC code then in
- Yes –
Sufficient Complaint – Note Case: Robinson v. Board of
County Commissioners- P alleged that D “did
then and there falsely, maliciously, and without just cause
arrest P on charges of disorderly conduct and resisting arrest
and take him to the police station where he was forcibly
imprisoned, kept, detained, and restrained of his liberty.”
Court held that this passage stated facts sufficient to
constitute a cause of action.
- P alleged that D “did
- Although a majority of
- Detail Required
Under the Federal Rules- Federal Rule
8(a): Pleading must contain short and plain statement showing
entitlement to relief. - Complaint Need Only
State a Claim Upon Which Relief Can Be Granted – Dioguardi
v. Durning- Rule: A
complaint need only state a claim upon which relief can be
granted. It does not necessarily have to contain facts that can
support a cause of action. - Rationale: This
case illustrates the standard for evaluating a complaint against
a motion to dismiss under Federal Rules of Civil Procedure
12(b)(6) (failure to state a claim upon which relief can be
granted). This standard is known as “notice pleading.”
A complaint need only state grounds that would entitle the
plaintiff to relief. It need not contain specific allegations of
facts that would constitute some specific cause of action. A
complaint can be vague and incoherent, but if there is a
discernable ground for relief, the complaint should not be
dismissed for failure to state a claim.
- Rule: A
- Complaint
Shouldn’t Be Too Specific – Note Case: Conley v.
Gibson- The FRCP does not
require a claimant to set out in detail the facts upon which he
bases his claims. To the contrary, all the Rules require is a
short and plain statement of the claim. This is made possible by
the liberal opportunity for discovery and other pretrial
procedures.
- The FRCP does not
- Key is Short and
Plain – Note Case: Deyo v. Internal Revenue Service- District Court
conditionally dismissed a pro se complaint for being “neither
short nor plain.” Rather it consisted of 43 pages of verbatim
dialogue from telephone conversations and is replete with legal
argument.
- District Court
- Federal Rule
- Pleading the
Right to Relief- Rule 8(a)(2)
requires a short and plain statement of the claim showing that
the pleader is entitled to relief - Complaint Is
Construed In Light Most Favorable to Plaintiff – Garcia
v. Hilton Hotels International, Inc.- Rule: When
considering a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, all inferences drawn and
allegations construed are in the light most favorable to the
plaintiff. If there is some basis that the plaintiff can prove
at trial that would entitle him/her to relief, then the motion
to dismiss must be denied. Alternative relief for the defendant
for a vague complaint is to require the plaintiff to make a more
definite statement to strike certain allegations that cannot
contribute to a cause of action. - Rationale: The
court’s analysis shows that dismissal of a case pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure should not be
ordered unless there is no basis for relief. Vagueness or
superfluous allegations will not defeat a complaint.
- Rule: When
- In current
practice, Rule 12(e) motions are disfavored (motion for more
definite statement) - The burden of pleading
an issue usually is assigned to the party who ahs the burden of
producing evidence of that issue at trial, although “the burden
of pleading need not coincide with the burden of producing
evidence.”- P must plead those
matters he must prove. If P cannot legitimately allege the
existence of each of the basic elements of his claim, it may be
assumed that he could not introduce evidence on them at trial. - Burden is then placed
on D to answer. - Once D has established
a defense, P will then have a second burden to introduce
evidence as to facts that will avoid D’s defense.
- P must plead those
- Rule 8(a)(2)
- Pleading Special
Matters
- Detail Required Under
- Traditionally,
- Rule 9- Pleading
Special Matters
-
-
-
-
Capacity
-
It
is not necessary to aver the capacity of a party to sue or be
sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, except to the
extent required to show the jurisdiction of the court. When a
party desires to raise an issue as to the legal existence of any
party or the capacity of any party to sue or be sued or the
authority of a party to sue or be sued in a representative
capacity, the party desiring to raise the issue shall do so by
specific negative averment, which shall include such supporting
particulars as are peculiarly within the pleader’s knowledge.
-
-
Fraud,
Mistake, Condition of the Mind.- In all averments
of fraud or mistake, the circumstances constituting fraud or
mistake shall be stated with particularity. Malice, intent,
knowledge, and other condition of mind of a person may be
averred generally.- Heightened
pleading requirements
- Heightened
- In all averments
- (g) Special
Damages- When items of special
damage are claimed, they shall be specifically stated.
- When items of special
-
Under
Rule 9(b), Complaints With Heightened Requirements Should Be
Construed As To Whether D Can Respond – Denny
v. Carey-
Rule:
Rule
9(b) of the Federal Rules of Civil Procedure only requires that
the plaintiff allege the circumstances of fraud such that the
defendant will be able to sufficiently answer the allegations. - Rationale:
This case notes that although allegations of fraud require
greater particularity, the complaint should be construed as to
whether the defendant is able to respond. The court did not
focus on whether the defendant was being falsely accused or
whether this was a “nuisance” suit.
-
- Case Similar to
Above Is Thrown Out For Not Adhering to Heightened Requirements –
Note Case: Denny v. Barber- In case brought by
same P as above with virtually identical pleading, court held
that Rule 9(b) had not been satisfied because the admission of
P’s counsel that he could provide no further facts in the
absence of discovery is exactly what courts are trying to avoid.
The Supreme Court has admonished that to the extent that such
discovery “permits a P with a largely groundless claim to
simply take up the time of a number of other people, with the
right to do so representing an in terrorem increment of the
settlement value, rather than a reasonably founded hope that the
process will reveal relevant evidence, it is a social cost
rather than a benefit.”
- In case brought by
- Dissatisfied with
the judiciary’s uneven approach under Federal Rule 9(b) to
securities-fraud cases (and the fact that too many lawyers were
filing such cases), Congress imposed a “super-heightened
pleading standard” on such lawsuits in the Private
Securities Litigation Reform Act.- The statute requires
that the complaint specify each statement alleged to have been
misleading and give the reasons why each is misleading. In
addition, if an allegation is made on information and belief,
all facts on which that belief is formed must be stated with
particularity. Finally, facts giving rise to a “strong
inference” that D acted with scienter must be stated with
particularity.
- The statute requires
- Pleadings on
Fraud Need Lots of Info Which P Who Has Suffered Great Economic
Loss Should Be Able to Provide – Note Case: Dura
Pharmaceuticals, Inc. v. Broudo- The Supreme Court
dismissed a securities fraud action when the complaint alleged
that the price of the stock “on the day of purchase was
inflated because of the misrepresentation” because the Private
Securities Litigation Reform Act of 1995 makes clear Congress’
intent to permit private securities fraud actions for recovery
where, but only where, P can adequately allege and prove the
traditional elements of causation and loss. The Court conceded
that ordinary pleading rules are not meant to impose a great
burden upon P, but stated that it should not prove burdensome
for a P who has suffered a great economic loss to provide D with
some indication of the loss and the causal connection that P has
in mind.
- The Supreme Court
- Pleadings Are
Not Supposed to Contain Facts Necessary to Establish a Prima
Facie Case – Swierkiewicz v. Sorema N.A.- Rule:
Requirements for establishing a prima facie case for employment
discrimination force P to prove more facts than necessary to
pass muster under FRCP 12(b)(6). - Rationale: This
is a case that should turn merely on the facts supporting an
allegation of employment discrimination. Here, the lower
court used the standard for evidence, not for pleading.
All P had to do here was establish at the very least a
possibility that D was guilty of the charge in the plea.
Court held that no one should have to plead more facts than
they might even use at trial to survive a motion to dismiss.
There is also a conflict with FRCP 8(a), which states the
simplified pleas standard is true for all civil rights cases.
All P had to do under 8(a) was give respondent fair notice of
the basis for the claim because this is a notice pleading
system. The court compares the complaint to Form 9 and says
it is sufficient. The fact that the claim may not survive at
trial is another story, and not for this Court to decide.
- Rule:
- Supreme Court
says Lower Courts Can Only Apply Heightened Pleading Requirements
In Cases Specifically Stated in Rule 8 or 9 – Note Case:
Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit- A unanimous Supreme
Court held that a federal court may not apply a more stringent
pleading standard in civil rights cases alleging municipal
liability under 42 U.S.C. § 1983. Can’t apply heightened
requirements in cases not specifically listed in Rule 8 or 9 or
some federal statute. These rules are designed to be exclusive.
- A unanimous Supreme
- Note Case:
Bautista v. Los Angeles County- In a federal civil
rights action, the trial court dismissed Ps second amended
complaint with prejudice. Each judge on Court of Appeals wrote
separate opinion.- Judge Schwarzer,
writing for the court, found the complaints to be lacking, but
reversed the trial court on the ground that it had abused its
discretion by failing to give P guidance as to how the defects
in the complaint could’ve been cured and a chance to cure
them. - Judge Reinhardt
concurred on the entirely different ground that the complaint
met the requirements of Rule 8. - Judge O’Scannlain
dissented because while he agreed that the complaint was
insufficient, he rejected the notion that the trial judge
abused his discretion in failing to provide P with guidance on
how to plead his case.
- Judge Schwarzer,
- In a federal civil
- Courts Don’t
Like to Seek Info More Appropriate to Discovery – Note Case:
Pelman v. McDonald’s Corp.- The Second Circuit
reversed the dismissal of a lawsuit against a fast-food company
for deceptive business acts in inducing children to buy food
that causes obesity, declining to endorse a heightened pleading
requirement that the District Court had imposed because the
information the DC sought was the sort of information that is
more appropriate to the subject of discovery.
- The Second Circuit
-
- Alternative and
Inconsistent Allegations- Under the original
common-law rules, pleadings were not allowed to contain
alternative and hypothetical allegations because they would have
made the search for the single issue impossible. - Under Rule 8(e)(2)
- Under Rule
10(b), each claim founded upon a separate transaction or
occurrence and each defense other than denials shall be stated in
a separate count or defense whenever a separation facilitates the
clear presentation of the matters set forth.- If party violates this
requirement, he will be allowed to amend his pleading to conform
to the rules. - Hypo: Paragraph 6 of a
complaint might say that B hit A because he hated her or because
he didn’t see her and was negligent. It then goes to the jury
to decide. Can do it in federal court, but not in most state
courts.
- If party violates this
- Under the original
-
-