CIV PRO OUTLINE FALL 20131. Part 1: Phases of a Lawsuit: Pretrial; Pleadings Topic A: Opening Statement Typical civil case: is one initiated & carried on by a person who seeks redress for some wrong alleged to have been committed against him by another. The redress is commonly the payment of money to him by the wrongdoer, but not always Substantive law: the part of the law which creates, defines, & regulates rights Laws affecting ppls rights outside the courtroom Ex: tort negligence, constitutional law Procedural rules: how the gov. prescribes the procedures by which persons may bring disputes before its courts, how procedures are to be conducted, & how they bring about the resulting decisions of the court Laws affecting ppls rights inside the courtroom Ex: Federal Rules of Civil Procedure (FRCP) Aim to isolate & sharpen the issues & to simplify the dispute Where do the FRCP come from? Art. III of U.S. Constitution Congress delegates to U.S. Supreme Court 28 U.S.C. 2072 Congress requests committees to draft amendments Judicial Conference proposes amendments Court approves & sends to Congress Congress has 6 months to act or Rule is amended Problem in Sibbach: if the Rules (35 & 37) went thru this whole system & was approved by everyone, does it mean its ok? Automatically right? Sibbach v. Wilson & Co., (Supreme Court of United States, 1941)

Facts: Physical exam & contempt; REA

Issue: Are Rules 35 & 37 valid, insofar as being within the congressional delegation to the Supreme Ct. expressed in the Rules Enabling Act

If valid was contempt ruling proper under Rule 37?

(definition of substantive rights under the REA; test case)

Holding: Yes the Rules are valid under the Rules Enabling Act

Rationale: Rules Enabling Act (REA) 28 U.S.C. 2073

Such rule shall not abridge enlarge or modify any substantive law

Supreme Ct. has authorization

Rules of Decision Act

Requires that state law govern in diversity actions

Ex: state law where the cause of action occurs

Unless theres federal law that governs it

How does Sibbach attorney construct an argument to get him to Illinois Court? (rejected)

argument

Topic B: Phases of a Lawsuit Section 1: Pretrial Litigation Timeline

21/60/90 days120 days

s Complaint Rule 4(m): must receive service of process within 120 days s Answer Rule 12(a)(1)(A): must answer to s complaint by 21 days being served 60 days service waived 90 days outside the U.S. (a) Stating the Claim Rule 8(a) General Rules of Pleadings: statement shall contain a short & plain statement of the claim showing that the pleader is entitled to relief Does not go far in describing what the rule should be Rule 12(b)(6) Defenses: failure to state a claim upon which relief can be granted

Sierocinski v. E.I. Du Pont De Nemours & Co., (U.S. Circuit Court of Appeals, 3d Circuit, 1939)

Facts: Negligent manufacturing of dynamite caps

Issue: Whether s amended statement of claim Paragraph 9 showed that the is entitled to relief under the FRCP?

Holding: Yes; Circuit Judge looks to Rule 8(a)(2) and Form 11

Rule: In notice pleading is supposed to put on notice as to what their legal theory is that they are alleging on

Rules says you need simple pleading

Form 11 Complaint for Negligence: not very specific

Rule 33: can seek clarification of the allegations thru interrogatories

Rule 11 Signing Pleadings: constraint of just throwing allegations into the complaint Complaint is (1) not being presented for an improper purpose & (2) are warranted by existing law Sanctions for frivolous claims factual basis both client & attorney sanctioned legal claims only attorney sanctioned

Conley v. Gibson, (U.S. Supreme Court, 1941)

Facts: Failure of representation due to discrimination

Issue: Whether the s statement of claim failed to state a claim where relief could be granted?

Holding: No

Rule: Rule 8 (a) Notice Pleading Supreme Ct. says you really just need to let the know notice of your legal argument

Rationale: Just set out general facts that are relevant to cause of action

Swierkiewicz v. Sorema N.A., (U.S. Supreme Court, 2002)

Facts: Hungarian suing for employment discrimination due to age & race

Issue: Whether a complaint in an employment discrimination lawsuit must contain specific facts establishing a prima facie case of discrimination?

Holding: No

Rule: Conley v. Gibson notice pleading; just alert to your legal theory

Rationale: Allow to get to discovery

Bell Atlantic Corp. v. Twombly, (U.S. Supreme Court, 2007)

Facts: Antitrust Case; conspiracy in restraint of trade

Issue: Whether the s claims had enough factual matter to suggest that an agreement was made

Holding: No

Rule: nudge claims from conceivable to plausible

Rationale: Factual allegations must be sufficient to raise the right to relief above the speculative level

Ashcroft v. Iqbal, (U.S. Supreme Court, 2009)

Facts: Muslim vs. gov. officials; deprivation of constitutional rights (9/11)

Issue: Did plead factual matter that, if taken as true, states a claim that s deprived him of his clearly established constitutional rights?

Holding: No; failed to plead sufficient facts/claims; he pleaded conclusory claims

Rule: Allegations must be plausible & not conclusory

Rationale: You can conclude factual allegations

You cannot conclude conclusory allegations

Murphy v. Cuomo, (N.D.N.Y.1996) Facts: Pepper-Spray case with Rule 11 sanctions Holding: has not provided any factual evidence that conspired w/ police officers. Thus s are granted motion for summary judgment under Rule 56 Granted Rule 11 Sanctions Rationale: s counsel knew at the time he signed the complaint that has no basis in fact for his allegationsConleyTwomblyIqbal

Pleading Standard Notice PleadingPlausibilityPlausibility & Conclusory

Required to Plead1. A & B talked on the phone1. A & B talked on the phone1. Factual

2. Anti-trust2. A & B work at different companies2. Factual

3. A & B had the same the next day3. Factual

4. A & B planned the price change4. Conclusory

5. Anti-trust

12(c) Judgment on the Pleadings 12(b)(6) Motion to Dismiss

Pre-Answer12(b)(2-5) or waived

(b) Interposing Defenses & Obligations A who has been served w/ summons & complaint pursuant to Rule 4 must make known his defenses the grounds upon which he resists the relief demanded against him in the complaint and must do so within certain time limits Responses to Complaints Rule 8(b): Defenses; Admissions & Denials (A) State in short & plain terms its defenses to each claim asserted against it (B) Admit or deny the allegations asserted against it by an opposing party Rule 8(c): Affirmative Defenses (even if true, still) RULE 12(b) Defenses Rule 12(b)(1-5) (pre-answer motion) (1) Lack of subject matter jurisdiction (2) Lack of personal jurisdiction (3) Improper venue (4) Insufficient process challenges the adequacy of the summons itself Ex. lack of clerk signature or court seal (5) Insufficient service of process (SOP) challenges the manner in which complaint & summons were delivered to Ex. person giving summons to was not person of suitable age/discretion; or sent to the wrong location neighbors house (not here!) Rule 12(b)(6): Motion to Dismiss (pre-answer motion) Failure to state a claim upon which relief can be granted Cant be based on the evidence presented (so what!) can come in your answer later Rule 12(b)(7) (pre-answer motion) Failure to join a party/ indispensible party (someone important is missing) Rule 12(c) Motion for Judgment on the Pleadings After the pleadings are closed but early enough not to delay trial a party may move for judgment on the pleadings Rule 12(d) If pierces the pleadings then motion for summary judgment (R56) Rule 12(e): Motion for a More Definite Statement A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response (Be more specific! Telling to plead in more detail) Sierocinski Case Rule 12(f): Motion to Strike The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter Any alleged affirmative defense stand as denied (but if you want to challenge at law you use a 12(f)) Rule 12(g)(2) Only one motion allowed Rule 12(h)(1) If not raised at first, party waives opportunity Rule 12(h)(2) (pre-answer motion to any time before verdict) same as 12(b)(6) (Coleman case why s failed; filed this after verdict too late) when litigation is over, its over Rule 13(a) & (b): Counterclaim (I have my own claim!) Rule 14: Third-Party Practice (If I am liable, then 3rd party owes me) Difference b/t 12(b)(1),(6),(7) and 12(b)(2-5) 1,6,7 more substantive in nature 1 constitutional limits preserved 2-5 If make a pre-answer motion, do not fail to raise these claims b/c if you fail to raise them then you waive right to raise them later HYPO (Page 52): Question of whether state recognizes a claim for mental damages caused by a partys negligence Partial 12(b)(6) motion to dismiss this count If state does not recognize can raise as affirmative defense If state doesnt recognize & you raised an affirmative defense then you could make a 12(c) motion to argue that your affirmative defense totally defeats the cause of action Question of whether will have sufficient evidence to prove negligence denial Venue may not be proper File pre-answer motion may have been contributorily negligent Affirmative defense Murphy v. Cuomo, (N.D.N.Y. 1996)

Facts: Pepper-Spray case with Rule 11 sanctions

Holding: has not provided any factual evidence that conspired w/ police officers. Thus s are granted motion for summary judgment under Rule 56

Granted Rule 11 Sanctions

Rationale: s counsel knew at the time he signed the complaint that has no basis in fact for his allegations

Coleman v. Frierson, (U.S. District Court, Northern District of Illinois, 1985)

Facts: Judge ordered default judgment against the s (for delinquency in discovery)

Issue: Whether may raise claims for the first time after judgment has been entered

Holding: No

Rule: When litigation is over, its over

Rationale: s had to plead an affirmative defense in the answer didnt do so they waived the right

(c) Replying to Defenses What must s answer contain Rule 8(b): must admit, deny or state lacking info of s allegations Rule 8(c): Affirmative Defenses Rule 12(b): Defenses; if no pre-answer motion was filed If the s answer includes only denials, there is no occasion for a response by the , b/c the matters in dispute appear on the face of the complaint & the answer Rule 7: Pleadings Allowed Only these pleadings are allowed: a complaint, an answer to a complaint, an answer to a counterclaim, an answer to a cross-claim, a third-party complaint, an answer to a third-party complaint, if the court order one a reply to an answer (d) Interposing Counterclaims Counterclaim: when asserts 1 or more claims against Compulsory: arises out of the same facts (same transaction or occurrence) Rule 13(a): arises out of the transaction or occurrence that is the subject matter of the opposing partys claim Have to raise in your answer, if you dont then you waive Ex: A sues B for slander. B wishes to contend (1) she has a good defense to As claim b/c she did not use the slanderous words alleged & (2) that at the time & place of the alleged slander A struck her, so that she has a claim against A for battery Permissive: does not arise from the same facts (diff. transaction or occurrence) Rule 13(b): pleading may state as a counterclaim against an opposing party any claim that is not compulsory Do not have to raise right in the answer, can still raise it later) Ex: A & B have a troubled relationship. A sues B for breach of K, B has a claim against A for another battery arising out a transaction or occurrence wholly unrelated to the subject matter of As K claim Transaction: something which has been acted out to the end Occurrence: a happening; an incident; or an event

Williams v. Robinson, (U.S. District Court, District of Columbia, 1940)

Facts: Slander & libel suit where suing the husband of wife for saying that slept with his wife

Issue: Was the slander and libel of which complains part and parcel of the transaction or occurrence that was the subject matter of s cross-complaint in the maintenance suit

Holding: No, slander & libel were not part of the transaction of maintenance suit

Rule: Compulsory counterclaim if the issue is not raised in your answer, then it is waived

Rationale: Judge rules this is a separate transaction & occurrence

Bad legal case, but good policy case

What is the same action or occurrence?

(1) Same evidence for both claims

(2) Same facts & circumstances in both claims

(3) Common points

(e) Amending the Pleadings Rule 15 reflects the idea that a party ought not to be irretrievably bound to stand by his formulation of a pleading of either claim or defense Amendments before Trial (By Right) Rule 15(a)(1) A party may amend its pleading once as a matter of course 21 days after Service of Process (SOP) 21 days after responsive pleadings (answer) 21 days after pre-answer motion (imposes no absolute time limit) (w/ opponents written consent OR leave of court) Rule 15(a)(2): party may amend pleading only w/ opposing partys consent or courts leave When justice so requires (broad determination court discretion) Very liberal standard (judge has wide discretion

Beeck v. Aquaslide N Dive Corp., (U.S. Court of Appeals, 8th Circuit, 1977)

Facts: was severely injured while using a waterslide. Aquaslide admitted to the manufacturing the slide, but before trial amended their answer when discovered the slide was a counterfeit.

Issue: Whether to allow the s motion to amend their answer

Holding: Yes, the can amend their answer & trial court did not abuse their discretion in granting amendment

Rationale: In the exercise of its discretion in ruling on motion for leave to amend, it searched the record for evidence of bad faith, prejudice and undue delay & found none

Reliance upon investigations of 3 insurance companies, & the fact that no contention has been made by anyone that the influenced this possibly erroneous conclusion persuaded the Court that had not acted in bad faith as to be precluded from contesting the issue of manufacture at trial

Court should allow amendment unless there is:

Bad

Undue prejudice

Undue delay

Amendments during or after trial Why do the parties care whether an amendment relates back to the original complaint? Statute of Limitations how they can get their claims to stick if they are either very close to the SOL or if the SOL is over. Point of relating back meeting the SOL Rule 15(a)(3) states when an amendment has to be answered When does an amendment relate back to the original complaint later of: (1) Time remaining to answer original complaint (2) 14 days of SOP of the amended pleading Rule 15(b): shows that a motion to amend made during the course of the trial is not necessarily too late, & there are circumstances where Court will allow amendment after conclusion of trial or entry of judgment Blair v. Dunham, (U.S. Circuit Court of Appeals, 6th Circuit, 1943)

Facts: is suing construction co, for damages due to their negligence relating to an injury she received after being struck in the head by a heavy piece of timber falling from a scaffold in U.S. Post Office

Issue: Whether the amendment stated a new cause of action & should be allowed

Holding: No, the amendment did not start a new cause of action, it is still covered under the SOL (it dates back to the original pleading)

Rule: An amendment does not set up a new cause of action so long as the cause of action alleged grows out of the same transaction & has the same elements

Rationale: relies on the same unlawful violation of a duty which s owed her at the place and in the position where she worked

Negligence of s employees & negligent manor of constructing scaffolding were the same transaction & occurrence (T & O) What is the same T & O? Different invasions of the same right (either case same thing happened, wood fell on her) breached the same duty Violation of the same obligation Rule 15(c)(1)(B): Asserts a claim or defense that arouse out of the same T & O (f) Disclosures & Discovery By the use of discovery devices, a party may learn facts or sources of proof not hitherto known to him that will aid him in establishing his own contentions Structure of Discovery Initiated by parties; judge intervenes only in cases of dispute, w/ broad discretion Generally confined to information that is (1) relevant to a claim or defense & (2) not privileged minor exceptions undue burden, expense Stages of Discovery Rule 26(a)(1): (1) Mandatory Disclosure matters that parties may use to support their own claim or defense (2) Each party requests further info from the other party as to other matters relevant to claims & defenses More detail about disclosures that have already occurred Info about aspects that one party doesnt want to use (3) Third stage By leave of court for good cause shown Theoretically broader scope: relevant to subject matter involved in action Rule 26 (b)(1): parties may obtain discovery re: any matter, not privileged, that is relevant to the claim or defense of any partyFor good cause, the Court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence Courts may choose to protect info. despite its relevance & that where they do, the info. need not be disclosed in discovery Privileged info attorney/client; doctor/patient Work Product info certain materials developed in anticipation of litigation How protected? The docs themselves are protected by the work product (communication protected by privilege) But the facts in those docs if you ask the questions right you can get Docs protected if prepared in anticipated litigation Protect the legal theory New proposed rule indication for the court to look at the type of case being disputed Process is served w/ complaint Within 120 days of service or within 90 days after has made an appearance, the judge must issue a scheduling order At least 21 days before the conference on the scheduling order, the parties must meet, plan discovery under Rule 26 (f) Attorneys Will meet for both sides & see where there have been issues or disagreements Parties must make automatic disclosures (Rule 26) at or within 14 days after the 26 (f) conference Automatic Disclosure: you have to tell the other side what witnesses you are planning to use in support of your arguments You are not committing to use these witnesses but you are disclosing that these are witnesses you may use Disclose the insurance calculate damages (give some figure) Rule 26 (f)(3) content of the plan Rule 16 (b)(3)(b) content of the statement for judicial scheduling order Discovery can begin after the Rule 26(f) conference or by stipulation of the parties or court Factual Development of the Case Scope of discovery & initial disclosures Rule 26(a) & (b) Do you have docs related to X? Primary instruments Oral Deposition (Rule 30 & Rule 45) Max of 10 ppl can get more w/ court permission Rule 30 party Rule 45 non-party Written Deposition (Rule 31) Must frame questions on predictions or alternative assumptions about the content of the prior answers (rare) Interrogatories to parties (Rule 33) Max 25 questions can get more w/ court permission Can only go to a party; cant go to a non-party Purpose is to get information Medical Exam (Rule 35) Need showing of good cause Docs including electronically stored info (Rule 34 & 45) Non-party Request to admit by a party/Request for admissions (Rule 36) Additional pressure on a party to investigate If going to deny need good grounds to deny Sanctions (Rule 37) Start out w/ interrogatories (work your way from there) As soon as client knows they are going to be sued, you want to put a litigation hold on all the data Experts Identities of experts Rule 26(a)(2)(A): Disclose identities of potentially testifying experts at least 90 days before trial From start of case, parties know this involves experts Means they will have to hire own, both to counter & to be prepared for Daubert hearing Qualifications & Contents of opinion Rule 26(a)(2)(B): testifying experts must submit bio & report Rule 26(b)(3): creates 3 categories of work product (1) Discovery is barred as to docs. prepared in anticipation of litigation that contain info. that can reasonably be obtained through other means (2) If the requesting party demonstrates they have a substantial need for materials developed in anticipation of litigation & that similar info. cannot be obtained through other means w/o substantial hardship, the court may order production of the materials (3) Opposing counsels thought process in preparing a case, such as legal theories or litigation strategy (opinion work product) cannot be discovered under this rule Probing expert testimony Rule 26(b)(4)(D): provides that a party may only seek discovery concerning non-testifying experts upon a showing of exceptional circumstances Routine deposition of testifying expert (Undue hardship lack of cooperation) Decisions of discovery are not appealable until the case is over Shapiro: Some problems of Discovery in Adversarial System (Text) Tension in an adversarial system of discovery You ought to be more forthcoming & ought to do more follow-ups Reddish (Supplement) Why have always assumed in request for discovery that the traditional assumption/approach would be the (against whom the discovery is being requested) would pay the cost of producing it Saying lets have the party who is requesting the info pay the cost of producing it Then not as much $$ would be spent trying to get all the info Problem: what about the who doesnt have deep pockets Wont have money to cover the costs & prove their case Does the attorney think the probability of a win is good enough to fund the money for discovery?

OBrien v. International Brotherhood of Electrical Workers, (U.S. District Court, Northern District of Georgia, 1977)

Facts: (OBrien) suing claiming the 2 unions violated his free speech rights under the LMRDA & seeks relief for the expenses incurred thru that litigation process. Discovery denied to answer interrogatories. Claims that since its decision to fine & suspend was rescinded, its reasons for finding guilty are irrelevant

Issue: Whether s motion to compel answers to interrogatories from should be sustained

Holding: Motion to compel granted for some of the interrogatories

was entitled to know the facts which render his utterances untrue

Schlagenhauf v. Holder, (U.S. Supreme Court, 1964)

Facts: A diversity action b/t a bus driver & the tractor-trailer, after an accident

Issue: Whether Schlagenhauf should have to submit to mental & physical exam?

Holding: Problem: Rule 35 thinking of s; Schlagenhauf is the

Can you get a to submit to a physical exam where the REA seems to be making s (who submit themselves to the court) submit to these exams

Causes a REA problem

Courts says this decision is for Congress to decide

Diff b/t Sibbach

Sibbach suing for her injuries

Bus Driver is being forced to take the exams; he has not put anything at issue

(He did not come to the court like Sibbach did)

Freed v. Erie Lackawanna Railway Co., (U.S. Court of Appeals, 6th Circuit, 1971)

Facts: (employee) suing (employer) for personal injuries sustained when he was struck by a train

Issue: Whether an answer made by the to an interrogatory is binding on it although contradicted by other evidence adduced by the

Holding: No, the Court properly declined to answer the question dealing w/ the location of the switch train at the time of the accident

What should have done when the Railroad responded that the car was outside of the track?

Request to admit then would have been stuck to their response

If you really want to bind them or narrow it down request to admit/deny

Identiseal Corp. v. Positive Identification System, (U.S. Court of Appeals, 7th Circuit, 1977)

Facts: suing sought relief for s inducement to enter into franchising agreement, under the common law theory of misrepresentation & under Wisconsin statutes relating to franchising

Issue: Whether the District Court had the power to compel to conduct discovery instead of permitting it to litigate the entire suit at trial?

Holding: No, the court did not have the power to compel discovery

Rule: The language of the rule does not by its terms confer upon the court the power to compel the litigants to obtain admissions of fact & of document even if it is clear that such admissions would simplify the trial of the case

Rationale: The rule requires the parties to appear & consider the possibility of admissions (decision for s attorney to make)

Shuber v. SS Kresge Co., (U.S. Court of Appeals, 3d Circuit, 1972)

Facts: (employee) suing (employer) for personal injuries due to s negligence in installing a light fixture (no indication that husband was to testify concerning the fixture)

Issue: Whether the trial court erred in not allowing to reopen the case to call a witness not listed in the pretrial settlement

Holding: No, the Trial Court did not err.

Rule: The Pretrial Order in the case binds & limits the parties to what they have presented & revealed in their Pretrial Narratives & at the Pretrial Conference

Rationale: Neither at the Pretrial Conference nor in the trial was the new line of evidence suggested; so it was waived; cant be brought up later, esp. after judgment has been made

(g) Provisional Remedies & Settlements Provisional Remedies Rule 64 (a): At commencement of & throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or prop. to secure satisfaction of the potential judgment (b) Remedies including the following: arrest, attachment, garnishment, replevin sequestration, & other corresponding or equivalent remedies Most important are attachment & garnishment Attachment: seizure of s prop. in advance of judgment Garnishment: process that makes a debt owed by a 3rd person to or prop. in the hands of a 3rd person but belonging to subject to s claim

Rule 65: Injunction (a) Preliminary Injunction: court may issue a preliminary injunction only on notice to the adverse party (b) Temporary Restraining Order: The court may issue a temporary restraining order w/o written or oral notice to the adverse parties or attorneys only if (A) Specific facts clearly show there would be immediate & irreparable injury to the movant before the adverse party can be heard in opposition (B) Movants attorney certifies in writing any efforts made to give notice & reasons why it shouldnt be required Final Injunctions: The ultimate relief sought by a judgment directing to do or refrain from doing particular acts

American Hospital Supply Corp. v. Hospital Products, Ltd, (U.S. Court of Appeals. 7th Cir. 1986)

Facts: (American/distributor) suing (Hospital Products/supplier) for breach of K & for a preliminary injunction against the to make them uphold the K

Issue: Whether the district courts granting the preliminary injunction was erroneous or should it be upheld?

Holding: District Court was not erroneous and this injunction should be upheld

Rule: In determining if to grant a preliminary injunction, a court should follow the formula P X Hp > (1 P) X Hd where the probability of the winning is multiplied by their potential hardship & determining if It is greater than s hardship multiplied by their probability of winning

Rationale: the premise of the preliminary injunction is that the remedy available at the end of the trial will not make the whole

The more limited that remedy, the stronger the argument for a preliminary injunction

To reverse an order granting or denying a preliminary injunction. Court must have a strong conviction that he exceeded the permissible bounds of judgment

Dissent: There was an insufficient showing of likelihood of success on the merits

The formulae will not assit the district courts in their assessment of this aspect of whether to grant preliminary injunctions

Judges must rely on their own judgment & not on mathematical quanta

County Floors, Inc. v. A Partnership Composed of Charley Gepner & Gary Ford, (3d Cir. 1991)

Facts: Country Floors brought a suit for trademark infringement against a partnership selling tiles under the name Country Tiles. sought preliminary injunction; Court granted s motion for summary judgment

Issue: Whether district court correctly granted summary judgment & correctly denied preliminary injunction

Holding: No

Rationale: Credibility evaluations are inappropriate in deciding a motion for summary judgment

Credibility is a decision for the jury

There was a genuine issue of fact here re: the likelihood of confusion

Winter v. Natural Resources Defense Council, Inc. (U.S. Supreme Court 2008) Rule: seeking preliminary injunction must establish that he is likely to succeed on the merits, that the balance of equities tips in his favor, & that an injunction is in the public interest Have to convince on both they will win & that the injunction not being granted will cause harm Justice Ginsburg dissents Says we always used the sliding scale test as to the probabilities of both

Settlements Great Majority of cases go through settlement Prof. Fiss (Against Settlement) Potential for judges to try to coerce settlement Doesnt like that judges can get heavy-handed Prof. Meadow (For & Against Settlement Arguing for mediation Med-arb uses all the techniques associated w/ mediation & arbitration Arbitration judge for hire Very hard to appeal arbitration judgment Private systems of procedure can have their own constraints Kothe v. Smith, (U.S. Court of Appeals, 2d Circuit, 1985)

Facts: (Kothe) suing (Smith/doctor) for medical malpractice claim seeking $2 million in damages. Judge advised parties to settle before trial or there would be sanctions. 1 day after trial they reach settlement, Judge places sanctions on

Issue: Whether the judge could impose sanctions on alone for failure to settle prior to trial?

Holding: NO

Rule: A trial judge may not abuse his sanction power in order to encourage settlement

Reasoning: This was an abuse of the sanction power under FRCP Rule 16(f)

A trial judge must nut use pressure tactics to compel settlement

Rule 16 was designed to encourage pre-trial settlement, not to impose negotiations on unwilling litigants

Summary Judgment 2. Part 2: Summary Judgment & Judgment as a Matter of Law (a) Motion for Summary Judgment (SJ) Rule 56: A party may move for summary judgment, identifying each claim or defense or the part of each claim or defense on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. Provides a means of going behind the pleadings to see whether there really is a genuine dispute as to any material fact Court may grant summary judgment on the entire case or on only a part of it The function of the Court on this motion is to determine whether there is a genuine factual dispute, not to resolve a genuine factual dispute found to exist no dispute of particular fact language that means there is no factual dispute concerning the particular element of the claim that is challenged by the motion What is the legal standard for a trial judge to grant a motion for summary judgment (1) No genuine issue of material (2) Movant is entitled to judgment as matter of law (Rule 50) Jury question of fact Judge question of law

JudgeJuryJudge

failed to meet burden of production Reasonable jury cant find for Judge should grant Summary Judgment/Judgment as a Matter of Law met production burden Reasonable jury can find for or Judge should not grant Summary Judgment/Judgment as a Matter of Law produced so much evidence that a reasonable jury cant find for Production burden shifts to to produce evidence to get back to jury

Burden of proof is on wants to move this back down to the jury

American Airlines v. Ulen, (U.S. Court of Appeals, District of Colombia Circuit, 1949)

(passenger) suing (carrier) for personal injuries & property damages due to the negligence of the pilots; they were flying too low according to the Civil Air Regulation

Issue: (1) Whether s were entitled to summary judgment; (2) Whether the applicability of the Warsaw Convention limited s liability to the sum of $8,291.87

Holding: (1) Yes s were entitled to summary judgment; (2) No, s liability was limited by the Warsaw Convention

Court is taking a question of negligence & b/c there is a legal standard that you have to fly at a certain altitude can you say as a matter of law they were negligent

Court determines this question

Court is turning question of fact into a question of law

Judges interpret statutes & law interpretations s arguments Could they have made defense they did not violate federal regulation b/c what they were doing was in fact a permitted way of handling your flight plan? You can maneuver your place w/ simple adjustments of direction & maintain the appropriate 5 mile distance What counsel should have argued This question would have been an issue for the jury

HYPO: there is a K for painting a bridge & the question is whether the trestles are included in the bridge? Is this a Jury issue or a judge issue? This is a jury issue Factual questions of the K Contextual

Celotex Corp v. Catrett, (U.S. Supreme Court, 1986)

Facts: suing for the wrongful death of her husband alleging that the exposed him to products containing asbestos

Issue: Whether had to support its motion for summary judgment w/ affidavits or similar materials negating the s claim

Holding: No, does not have to support its motion by negating the claims of the w/ affidavits or other similar materials

General Rule: view the facts in the light most favorable to the non-movant

Supreme Court rules:

Moving party can beat burden by:

If you prove they dont have enough, then summary judgment can be granted

No longer requires the moving party to completely show that is unable to prove their claim can just point that in the record so far, does not have enough evidence

Puts burden of production on the non-moving party to have all the evidence to demonstrate that they can show the key elements of their case Policy Argument: Judicial Efficiency

Legal standard for summary judgment that Supreme Court adopts Grant summary judgment if (1) If non-movant has the production burden (2) If non-movant failed to prove an essential element of its case Scott v. Harris, (U.S. Supreme Court, 2006)

Facts: (Scott) suing (police officer) for the use of excessive force in an unreasonable seizure under the 4th amendment which resulted in his serious injuries

Issue: Was the use of deadly force justified; Was there a violation of 4th amendment right? Whether to grant can grant summary judgment?

Holding: Yes, it was reasonable for the to use deadly force. Doesnt violate 4th amendment

General Rule: In the light most favorable to the non-movant ( /driver)

Exception: No dispute of material fact if the record blatantly contradicts the facts viewed in the light most favorable to the non-movant so that no reasonable jury could believe him

If there is no way that a jury could find for the having looked at the evidence, then Court should grant summary judgment

Poses fundamentally what is the role of the jury & what is the role of the judge

Supreme Court says that s actions were totally unreasonable

Court is turning the factual dispute into a question of the law for the judge

Very different from Celotex about your obligations for summary judgment

Celotex forces preparation for summary judgment

Scott what are issues/our concept of the role of the jury vs. the judge Policy Argument: Judicial Efficiency

Comparison of Motion to Dismiss & Motion for Summary Judgment Motion to Dismiss: Failure to state a claim upon which relief can be granted Motion to Dismiss R12(b)(6)Summary Judgment R56

Who can file? only or

Based on.Pleadings onlypierces the pleading

Decision standard Assuming all the facts are true, cannot win(1) No disputed issue of material fact(2) One side will win as matter of law(Celotex)

DifferencesEven if allegations are proven, there is NO relief There is no proof to prove an element of your claim

Summary Judgment: Based on the evidence there is no issue at dispute; party cannot prove an element of their claim

(b) Judgment as a Matter of Law (JML) Rule 50: If a party has been fully heard on an issue during a jury trial & the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: Resolve the issue against the party Grant a motion for judgment as matter of law against the party on a claim or defense that can be maintained or defeated only w/ a favorable finding on that issue Ex: where a will have the burden of proof on an essential issue at trial, the may successfully move for summary judgment by showing the would be entitled to judgment as a matter of law at trial if the presented nothing more than was before the court at hearing on the motion Rule of Conjunction: dictates that in a case comprised of 2 independent elements the must prove each element to a much greater degree than 50%: only then will the have shown that the probability that the 2 elements occurred together exceeds 50% Preventing unreasonable verdicts by midtrial motions The demurrer to the evidence was the earliest means of withdrawing a case from the jury in the course of trial, before verdict At the close of s case it appeared that s evidence was insufficient to warrant a verdict for so demurrer s tacit or direct admission was final, not provisional If demurrer was overruled, judgment went for Preventing unreasonable verdicts by motions at the close of all the evidence Judgment as a Matter of law Proper standards (1) If there is literally no evidence on an element of nonmovants case (2) If looking only at the evidence favorable to the nonmovant, the court is satisfied that no properly functioning jury could find for the nonmovant Rule 50(a): reasonable jury could not find for nonmovant b/c of insufficient evidence No evidence If has no evidence for an essential element of his claim, grant JML Inadequate evidence If looking only at the favorable evidence to , no reasonable jury could find for , grant JML Adequate evidence, but its unbelievable All Courts: Evidence contrary to the laws of natureincredible as matter of law, grant JML Some Courts: Testimony contrary to physical facts, etcincredible as matter of law, grant JML Adequate Evidence, but overwhelming evidence to the contrary If looking only at evidence favorable to , a reasonable jury could find for , but presented overwhelming evidence to the contrary ??? Where you can argue both sides (what is overwhelming?) Pennsylvania R.R. Co. v. Chamberlain, (U.S. Supreme Court, 1933)

Facts: brought action against (R.R.) to recover for the death of a brakeman. s evidence had said there was a crash but didnt see it. s evidence was 8 witnessed who testified that there was no collision.

Issue: Whether the trial court was correct in withdrawing the case from the jury in light of the evidence presented

Holding: Yes, the trial court was correct

Rule: When 2 opposite inferences can be drawn from the only evidence favorable to , & s evidence overwhelmingly supports one inference, then grant JML for

Rationale: Could argue that witness credibility is for the jury to decide, but the Court said here there was no credibility issue b/c of the overwhelming evidence presented by Lavender v. Kurn Reason this case gets to the Supreme Court is b/c there were no eyewitnesses

Comparison of 12(b)(6), SJ, & JMLMotion to Dismiss R12(b)(6)Summary Judgment R56Judgment as Matter of Law R50

Who can file? only or or

Based on.Pleadings onlypierces the pleadingAll of nonmovants evidence & all of movants non-contradicted evidence

Decision standard Assuming all the facts are true, cannot win(1) No disputed issue of material fact(2) One side will win as matter of law(Celotex) (1) No reasonable jury could find for nonmovant (2) If nonmovants evidence requires an inferential step & movants evidence overwhelms nonmovants evidence, grant JML(Chamberlain)

When?From pre-answer motion until verdict From a reasonable time after the start of discovery until 30 days after discovery is closed At the close of either partys case until the case is submitted to the jury (to preserve) & again after the verdict

Jurisdiction 3. Part 3: Jurisdiction

Fed. Court has jurisdiction

Subject-Matter Jurisdiction Subject-Matter Jurisdiction (SMJ) can you get into the Fed. Court at all? Do you have the authority to adjudicate within the concepts of Art. III SMJ is NOT something that the parties can waive by consent If you dont have SMJ then you dont have the power to adjudicate that person Jurisdiction Original Jurisdiction What Court could hear the case initially Where you can file the case originally Trial & state courts can hear cases unless there is a statute Original & exclusive jurisdiction Only Fed. Court can hear these cases Ex: anti-trust, maritime law Original & concurrent jurisdiction Limited Jurisdiction Fed. Courts Art. III 2 limits what cases the Fed. Court can hear Some deals w/ subject-matter, some deals w/ parties Sometimes a case is permissible to be heard under Art. III but there are statutes that limit what fed. court can hear it Ex: Diversity case b/t FL & GA resident, but the cause of action is $50,000 1332 says cause of action has to exceed 75,000 Policy: Fed. Courts dont want to be burdened w/ claims that are smaller amount which the State Court can handle

Section 1: Federal QuestionFederal courts are courts of limited jurisdiction Article III Declares that the federal judicial power shall extend to various enumerated cases: and controversies but these constitute only a small fraction of all the disputes that require adjudication Art. III gives a limited judicial power to the fed. gov. but the Constitution does not provide that the states may not exercise that power also The state are free to exercise it, unless Congress steps in & says no Federal Question 28. U.S.C. 1331 District Courts shall have original jurisdiction of all civil action arising under the Constitution, law, or treaties of the United States Osborn v. United States Bank Arising under Art. III = anything that has a federal ingredient Congress can limit what is a federal question under 1331

Louisville & Nashville Railroad Co. v. Mottley, (U.S. Supreme Court, 1908)

Facts: (residents of Kentucky) sued (railroad co .in KY) to compel the specific performance of K after refused to give them free R.R. passes as was agreed in the K

Issue: Does an anticipated defense contained in the s complaint that the s cause of action is not valid under the Constitution or laws under the US establish SMJ in fed. court based on a claim arising from fed. law?

Holding: No, an anticipated defense in a well-pleaded complaint does not give rise to a fed. question jurisdiction b/c it does not arise under fed. law

Rule: Under the well-pleaded complaint rule, if the facts alleged in a complaint do not demonstrate an issue involving federal law pertaining to the s right to a cause of action, there is no question of fed. law & the fed. courts do not have fed. question jurisdiction. An anticipated defense is not part of the s case & thus cannot be a basis for fed. question jurisdiction

Unless claim arises under Federal Law, there is no jurisdiction Even if there is a federal ingredient, the claim has to fall under a statutory claim a fed. court can hear

Rationale: A suit arises under the Constitution & laws of US only when the s statement of his own cause of action shows that is based upon those laws or that of the Constitution

s poses no fed. question

does not show that the suit (s original cause of action) arises under the Constitution

What is pleading is that there is a breach of K, not a 5th amendment right issue

Well-pleaded complaint rule s cannot raise anticipated defenses as a means of invoking jurisdiction. s must demonstrate that the cause itself arose from fed. law

Other: Under Osborn, would ;s claim had a federal ingredient yes, 5th amendment

Smith v. Kansas City Title & Trust Co., (U.S. Supreme Court, 1921) State claim violation of state corporate law Federal claim whether the bonds were issued in a manner that is unconstitutional Holding there was federal jurisdiction. Why? Court had to figure out the fed. claim first in order to determine the state claim (the state claim depended on the fed. question) Here they needed the fed. claim, so there was fed. question Diff w/ Mottley Mottley didnt need the federal claim. They primary issue was a state law breach of K

Art. IIIOsborn fed. ingredient 1331 Mottley Rule

Independent basis for jurisdiction

Bell v. Hood, (U.S. Supreme Court, 1946)

Facts: Damages were suffered as a result of the respondents imprisoning the s in violation of their Constitutional right to be free from deprivation of their liberty w/o due process of law

Issue: Whether federal courts can grant money recovery for damages said to have been suffered as a result of federal officers violating the 4th & 5th Amendments (where there are state laws that can resolve this issue)

Holding: Yes, it was the pleaders purpose to make violation of the Constitutional provisions the basis of this suit

Rule: Even if complaint fails to state a cause, there can still be jurisdiction Rationale: Court must assume jurisdiction to decide whether the allegations state a cause of action on which the court can grant relief as well as to determine issues of fact arising in the controversy

Complaint does in fact raise serious questions, both of law & facts, which the district court can decide only after it has assumed jurisdiction

Courts says dont dismiss on 12(b)(1) unless its so frivolous & clear under the law that there is no such cause of action

If the claim has some plausibility, even if federal law doesnt recognize that cause of action, you should deal w/ it on the merit

Standard for recognizing under a 12(b)(1) and 1331: dont treat it as a lack of subject-matter unless it just appears as a frivolous way to get into the federal court Dissent: Whether the complaint states such a cause of action is for the court, not the pleader, to say

Section 2: Diversity of Citizenship (DOC)

1332complete diversitystrawbridge ruleArt. IIIb/t citizens of diff. states

Independent basis for jurisdiction

AIC/ jurisdictional amount

28. U.S.C. 1332 Diversity of Citizenship; amount in controversy (a) The district courts shall have original jurisdiction all civil actions where the matter in controversy exceeds the sum or value of $75,000 & is between (1) Citizens of diff. states (2) Citizens of a State & citizens or subjects of a foreign state, EXCEPT for those subjects of a foreign state who are lawfully admitted for permanent residence in US & domiciled in same state as (3) Citizens of diff. states & in which citizens or subject of a foreign state are additional parties (4) A foreign state as and citizens of a state or of diff. states (c) Purposes of this section & 1441 (1) A corporation shall be deemed to be a citizen of every State & foreign state by which it has been incorporated & of the State or foreign state where it had its principal place of business (PPOB) HYPO: (1) A, citizen of NY vs. B, citizen of Missouri Yes (2) A, citizen of NY vs. B, citizen & resident of England Yes 1332(a)(2) (3) A, citizen & resident of Canada vs. B, citizen & resident of England No both residents of foreign states (4) A, citizen of Canada & permanent resident of US domiciled in NY vs. B, citizen & resident of England No b/c A is still a citizen of Canada Permanent resident doesnt make you for purposes of 1332(a)(2) the party a citizen of the state Lawsuit b/t residents of 2 diff. countries (5) A, citizen of Canada & permanent resident of U.S. domiciled in NY v. B, citizen of N.Y. No A has been lawfully admitted for permanent resident If permanent resident of same state as the other party, then there is no diversity Court is trying to limit jurisdiction w/ exception in 1332(a)(2)

Baker v. Keck, (US District Court, Eastern District of Illinois, 1936)

Facts: (citizen of Oklahoma, who previously resided in Illinois) suing (Progressive Miners in Okla.) charging a conspiracy out of which grew events that led to being attacked by s & his arm shot off. contest saying that is domiciled in Illinois so there is no diversity of citizenship

Issue: Whether there was diversity of citizenship

Holding: Yes, was at the time of commencement of the suit & is now a citizen of Okla.

Rule: To acquire a domicile, a person must establish a dwelling place w/ the intention of making it a home.

Diversity of citizenship is determined at the time the case is filed

Rationale: Court says there is enough evidence here to show an indefinite amount of time wants to stay in Okla.

Looked to: drivers license, paying taxes, registering to vote

Citizenship of Corporations Corporations are deemed citizens of the state where they are incorporated Nerve center where ppl who manage the company are located In terms of corp. incorporated abroad & in the US (they could get 3 citizenships, where they are incorporated in US, abroad, & principal place of business) Principal place of business: refers to the place where the corp.s high level officers direct, control, & coordinate the corp.s activities HYPO: (1) A, French corp. (incorporated in France) w/ its principal place of business in NY vs. B, citizen of NY No New Yorker vs. New Yorker (2) A, French Corp. w/ its principal place of business in NY vs. B, citizen of Germany (2 scenarios here) foreign citizen vs. foreign citizen New Yorker vs. foreign citizen NO this is where the Court will be strict w/ corporations & say no citizenship (3) A, French corp. w/ its principal place of business in NY, vs. B, German corp. w/ its principal place of business in NJ No this is interpreted as foreign v. Foreign France vs. Germany so the fed. courts down to deal w/ it (let the State deal w/ it) (4) A, French corp. w/ its principal place of business in NY vs. B, German citizen & C, NJ Citizen Adding additional party No problem is single party w/ multiple citizenship; here the corp. does not fit If were French corp. w/ NY citizen vs. NJ citizen Yes For jurisdiction would try to argue under 1332(a)(3)

Kelly v. United States Steel Corp. (3d Circuit, 1960)

Facts: (PA citizens) sought to invoke diversity jurisdiction over the s.

Issue: Whether s, who were incorporated in NJ, had its principal place of business in NY or PA?

Holding: s business, by way of activities, is centered in PA

Rationale: Consideration of the facts of s life in order to apply a place of activity test

More life activities occurring in PA

So s are residents of PA and there is no diversity jurisdiction

Multiple Parties & Diversity of Citizenship HYPO: A of NY & B of Ohio vs. C of Missouri Yes 1332(a)(1) A of NY & B of Ohio vs. C, citizen & resident of France Yes 1332(a)(2) A of NY & B, citizen & resident of France vs. C of Ohio Yes 1332(a)(3) Citizen of foreign state is an additional party A of NY & B, citizen & domiciliary of France vs. C of Ohio & D, citizen & domiciliary of France Yes 1332(a)(3) Additional parties are foreign citizens so you are ok A of NY & B, citizen & domiciliary of France vs. C, citizen & domiciliary of France No dont have citizens of 2 different states Not (a)(2) b/c here you have citizen of state & foreign state vs. citizen of foreign state doesnt work A, partnership of A, citizen of NY & B citizen & domiciliary of France vs. C, citizen & domiciliary of Germany No dont have citizen of diff. States on each side C is not an additional party, it is the main party which causes the problem If cant get into federal court can still get into state court Kramer v. Caribbean Mills, (U.S. Supreme Court, 1969)

Facts: (Kramer on behalf of Panama) suing (Caribbean) under theory of diversity of citizenship for $165,000 for violation of a K

Issue: Whether the Fed. district court in which it was brought had jurisdiction over the cause, or whether that court was deprived of jurisdiction by 28 U.S.C. 1359

Holding: No, there is no DOC when a party is shown to be improperly or collusively made under 1359

Rule: A district court shall not have jurisdiction where any party has been improperly or collusively made or joined to invoke jurisdiction of such court

Reasoning: Kramers assignment was for the purposes of collection, w/ Kramer to retain 5% of the net proceeds for the use of his name & his trouble in collecting

Kramer admitted that the assignment was in substantial part motivated by a desire by Panamas counsel to make diversity jurisdiction available

Collusion was made to invoke jurisdiction so it is covered under 1359

Rose v. Giamatti, (Southern District Court of Ohio, 1989)

Facts: (Rose) suing (commissioner, NY) and 2 unincorporated associations (MLB & Cincinnati Reds of Ohio). initiated the suit in Ohio State Court to prevent from conducting a hearing into suspicions of s gambling on baseball

Issue: Whether the citizenship of the should be ignored for the purposes of determining whether the removal of this case to the Fed. Court was proper

Holding: Yes, Cincinnati Reds & MLB are fraudulently joined in this case as to destroy diversity of citizenship

Rule: you cannot name a who does not have a real party interest in order to defeat diversity & stay out of fed. court

The court will look to see if the party has a real party interest in order to determine if there is DOC

Reasoning: There is no legal asis in the suit for the joiner of Reds and MLB

cannot defeat a s right of removal on the basis of DOC by the fraudulent joinder of a non-diverse against whom the has no real cause of action

FRCP Rules Governing Multiple Parties Rule 14: 3rd Party Practice Impleader Rule A defending party may, as 3rd-party , serve a complaint on nonparty who is or may be liable to it for all or part of the claim against it Way to bring in a party who could be liable to you if you are liable to the initial Indemnification relationship Ex: A sues B, & B says if I am liable to A, C is liable to me C could sue B cross claim, both are s

C could sue B compulsory counterclaim

Rule 18: Joinder of Claims

A B

A can bring as many claims as it wants against B, even if they dont arise from the same T & O As long as they satisfy the jurisdictional amount for all claims Encourages you to raise any many claims that you have against in 1 suit Rule 19: Required Joinder of Parties Who must be joined? Indispensable party person who is so urgently needed for just adjudication Rule 20: Permissive Joinder of Parties Who can be joined? Cause of action arises out of the same T & O Also has to be a question of law or fact that is common to all the s can join s if their liability arises our of the same T & O; same goes for Purpose: Efficiency Ex: Plane crash Same T & O & same cause of action what caused the place to crash Rule 21: Misjoinder of a Party Court dismisses the incorrectly joined party Can also sever a claim against a party Doesnt arise out of the same T & O Dont have issues & facts in common Court doesnt dismiss the complaint Force into separate lawsuits Rule 22: Interpleader A way to resolve conflicts from diff. Parties who are claiming the same thing HYPO: Bank holds Bs (deceased) money. A comes along & says that the $$ belonged to him (Deceased promised me I could have this $$). C & D are beneficiaries of the estate of B. They say that the $$ belongs to them. Bank now has a claim from A, C, & D Interpleader tells the 3, go fight it out & the winner gets the $$ Rule 23: Class Action (a) One or more members of a class may sue or be sued as representative parties on behalf of all members of the class (1) Class is so numerous that joinder of all members is impracticable (2) There are questions of law or fact common to the class (3) The claims of defenses of the representative parties are typical of the claims or defenses of the class (4) The representative parties will fairly & adequately protect the interests of the class (b) Types of Class Actions Most likely to succeed in ppl who have been harmed in the same way or the same amount can wind up in the lawsuit & (If property crafted) would get res judicata so they cant be sued by anyone else If there is settlement, have to be part of the class action in order to receive the benefit. If not part of the class action, then you waive being able to get benefits, etc. Someone from class action can opt out & decide to file their own claim Rule 24: Intervention Who can intervene (a) When a person applies to the court by timely motion to intervene, the court must allow him to do so assuming that one of the parties does not adequately represent his interest already When a lawsuit is going on & there is someone not named a party to that lawsuit, depending on how the lawsuit comes out, it could have impact on that persons right If intervene successfully then become part of the suit (b) Permissive intervener Court has authority to condition your participation Court controls your ability to try & intervene to do a lot of discovery Section 3: Supplemental Jurisdiction Pendent Jurisdiction: dealt w/ the 2 legal theories (1 fed. & 1 state) growing out of the same nucleus of operative facts Ex: if you have a primary state claim & a minor federal claimCourt will most likely send the claim back down to state court to try the issue. They may hold on to the federal claim If these claims derive from the same operative facts court will grant supplemental jurisdiction and hear them together United Mine Workers v. Gibbs, (U.S. Supreme Court, 1966)

Facts: (Gibbs) brought both federal claims and state claims against the (United Mine). The trial court dismissed the federal claim under 1331

Issue: Did fed. court have pendent jurisdiction over state law claim

Holding: Yes, if the 2 claims derive from a common nucleus of operative facts & they would be expected to be tried together

Rule: If state & federal claims derive from the a common nucleus of operative facts then the federal court has jurisdiction over the state claim

Rationale: Considerations for pendent jurisdiction lie in questions of judicial economy, convenience & fairness Facts were under the same common nucleus of operative fact, they occurred from the same life event

Ancillary Jurisdiction: court could as an incident to deciding a claim within its jurisdiction, decide other claims that if separately presented would not be within the courts jurisdiction Ex: A sues B from an auto-accident for $100,000. A & B are diverse. B wasnt injured, has a compulsory counterclaim for damage to his car. B says not liable to A b/c A was contributory negligent. If the damage amount is $25,000 (not jurisdictional amount) you cant be under fed. court. But fed. court will hear your case thru ancillary jurisdiction Revere Copper & Brass, Inc. v. Aetna Casualty & Surety, (US Court of Appeals, 5th Cir., 1970)

Facts: (Revere) suing (Aetna), surety on performance bonds on construction Ks, alleging that Aetna principal (Fuller) had failed to perform its obligations under K

Issue: Whether (Fuller) could bring their counterclaim against under ancillary jurisdiction, when they do not fall under the jurisdiction of the Fed. Courts

Holding: Yes,

Rule: There is ancillary jurisdiction when there is a logical relationship to the core of the operative facts

Rationale: s claim arises out of the aggregate of operative facts which forms the basis of s claim in such a way to put their logical relationship beyond doubt

Two claims are but two sides of the same coin

State law 1332

Problem is no diversity, which means there is no independent basis for jurisdiction

P D1State x state yImplead

Counterclaim

D2 Owen Equipment & Erection Co. v. Kroger, (U.S. Supreme Court, 1978)

Facts: (widow of deceased) brought wrongful death suit against OPPD based on negligence theory. OPPD impleaded (Owen). amended complaint & included Owen as . OPPD was dismissed from the case BUT the diversity of citizenship was now broken

Issue: Where an action in which fed. jurisdiction is based on DOC, may the assert a claim against a 3rd party when there is no independent basis for fed. jurisdiction over that claim

Holding: No, may not assert a claim where there is no DOC & where there is no basis for fed. jurisdiction over the claim

Rule: When wants to bring new claim against another impleaded by 1st but there is no diversity w/ the new , you cannot bring this claim to fed. court No ancillary jurisdiction

Rationale: s claim against was entirely separate from her original claim against OPPD

It was not an ancillary & dependent claim but a new & independent claim

This would be a way to get around the diversity requirement of 1332 Would be a signal to future s that if you want to sue 2 ppl & 1 person is diverse & 1 is not, sue them both, which will get around the diversity requirement Dissent: Justice White & Brennan holding that in a diversity case the District Court has power, both constitutional & statutory, to entertain all claims among the parties arising from the same nucleus of operative facts as the s original, jurisdiction conferring claim against the

1332

Problem is no diversity, which means there is no independent basis for jurisdiction

P D1State x State yImpleadAmended to Sue

D2 State x

28 U.S.C. 1367 Supplemental JurisdictionPendent & ancillary jurisdiction became supplemental jurisdiction under 1367 It gets non-federal, non-diversity claims into fed. court BUT the original claim must first get you into fed. court (a) Federal Questions Language that sounds like Art. III case or controversy equivalent to Gibbs? Which way do you see/argue it? (b) Diversity Questions Takes away sup. Jurisdiction ONLY from s (not s) OK to name more than one under Rule 20 but can you get around diversity? There has to be complete diversity under Rule 20, if not then they can be brought into Federal Court If indispensable party has to be joined & they are not diverse, the case has to be removed to state court District court decides if someone is indispensible party or not CORE PROBLEM: distinction b/t whos and after counterclaims, etc. (c) Even if requirements are met under (a) (b), court has the discretion to send the case back to state court (1) If a claim is a novel state law claim (court will try the fed. question, but can send back the state law claim (2) If the state law claim predominates over the fed. claim (3) If the district courts had dismissed all claims over which Fed. Court had original jurisdiction Court is following Gibbs, in a sense they look at judicial efficiency The reason for sending a case back to State Court has to be compelling

Executive Software North America, Inc. v. US District Court, (9th Circuit, 1994)

Facts: brought both federal & state discrimination claims against (former employer) in a Cali. State-court case

Issue: Was the district court required to evaluate whether the specific circumstances mentioned in 1367(c) authorized it to decline supplemental jurisdiction over the state claims

Holding: Yes, district court must evaluate the circumstances and may use the exceptions only in exceptional circumstances. They must articulate what the compelling reasons for declining jurisdiction are

Rule: In order for a court to decline to exercise jurisdiction over supplemental state law claims pursuant to 1367, the district court must find that one of the circumstances under 1367(c) exist & articulate the circumstances in the order declining jurisdiction

Reasoning: exceptional circumstances requires an additional inquiry

If the court declines jurisdiction there must be articulated reasons that are mentioned in the statute in order to remand to state court

Court believes that 1367(c)(4) more carefully channels courts discretion by requiring the court to identify how the circumstances that it confronts, & in which it believes the balance of the Gibbs values provides compelling reasons for declining jurisdiction, are exceptional

Notes:The District Court remanded the supplemental state claims to state court and Defendant petitioned the United States Court of Appeals for the Ninth Circuit for a writ of mandamus ordering the District Court to retain jurisdiction over the state law claims. A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.

Section 4: Jurisdictional Amount (Aggregation)

Rules A single CAN aggregate claims against a single

boK $50,000

Total exceeds jurisdictional amount

Unrelated claims still okDP

Neg $30,000

If has a claim that meets the amount-in-controversy (AIC), then P2 CAN join if his claim is less than the AIC $100,000P1

D

$30,000P2

Each claim against different s must meet AIC D1

$100,000

P

$30,000D2

Single CANNOT aggregate amounts from diff. Claims against diff. sD1$50,000

P

$30,000D2

s CANNOT add their claims that are each less than the AIC to meet jurisdictional amount requirement $50,000P1

D

$30,000P2

Snyder v. Harris (Gas Service Co. v Coburn), (U.S. Supreme Court, 1969)

Facts: Both cases are class action lawsuits & diversity of citizenship

Snyder alleged that the s had sold their shares of the companys stock fair in excess of fair market value

Gas Service Co. alleged that had billed & illegally collected a city franchise tax from him & others living outside city limits

Issue: Whether separate & distinct claims presented by & for various claimants in a class action may be added together to provide the $10,000 jurisdictional amount in controversy

Holding: No, aggregation is permitted in only certain cases. The arguments in these cases are not sufficient to abandon this judicial interpretation

Rule: Aggregation permitted only in cases which

(1) a single seeks to aggregate 2 or more of his own claims against a single

(2) 2 or more s unite to enforce a single title or right in which they have a common & undivided interest

Reasoning: Court sees no compelling reasons to overturn a settled interpretation of an important congressional statute in order to add to the burdens of an already overloaded fed. court system

Exxon Mobil Corp. v. Allapattah Services, (Ortega v. Starkist), (US Supreme Court, 2005)

Facts:

Exxon s brought a diversity class action under Rule 23 alleging that Exxon overcharged them all

Ortega 19 yr. old girl sued a food co. seeking damages for severe injuries from slicing her finger on a tuna can

Her family joined as s under Rule 20 seeking damages for emotional distress & certain medical expenses (these claims were under the jurisdictional amount)

Issue: Whether a diversity case in which the claims of some s satisfy the amount in-controversy requirement, but the claims of other s do not, presents a civil action of which the district courts have original jurisdiction?

Holding: Yes, under 1367(b) District Court has original jurisdiction over the civil action comprising the claims for which there is no jurisdictional defect Rule: As long as 1 s claim satisfies the jurisdiction amount requirement, the court may exercise jurisdiction over the additional s case that fall shorts of the requirement, when all claims arise from the same case or controversy (T & O) Reasoning: if main claim satisfies jurisdictional amount, then we can get to the second claim

When the well-pleaded complaint contains at least 1 claims that satisfies the amount-in-controversy requirement & there are no other relevant jurisdictional defects, the District Court has original jurisdiction

If the court has original jurisdiction over a single claim in the complaint it has original jurisdiction over a civil action within the meaning of 1367(a)

1367(b) qualifies the broad rule of 1367(a), it does not withdraw supplemental jurisdiction over the claims of s permissively joined under Rule 20

Dissent: Both claims have to meet the jurisdictional requirement

Saint Paul Mercury Indeminty Co. v. Red Cab Co., (U.S. Supreme Court, 1938)

Facts: (Red Cab) brought suit against s (St.Paul) for failure to pay workers comp. Claims as required by its K of insurance to cover injuries to s employees

Issue: Whether the District Court had jurisdiction over the case when the jurisdictional amount awarded did not amount to the required amount of $3000

Holding: Yes, they had jurisdiction

Rule: To a legal certainty the claim has to arise under jurisdictional amount before the court can dismiss the claim

Reasoning: From the face of the pleadings, it is apparent, to a legal certainty, that the cannot recover the amount claim or was never entitled to recover that amount the suit will

Events occurring subsequent to the institution of suit which reduce the amount recoverable below the statutory limit do not oust jurisdiction

Nelson v. Keefer, (U.S. Court of Appeals, 3d Circuit, 1971)

Facts: s brought suit against for personal injury claims from a car accident. District Court summarized the most substantial claims to amount to damages in $603.50 for medical bills and $727.69 in prop. damage

Issue: Whether s case should be dismissed before trial when the District Court has enough evidence to determine that s do not meet the jurisdictional amount

Holding: Yes, the s case should be dismissed

Rule: Could a reasonable jury find is owed in excess of $75,000

Dont necessarily have to decide jurisdictional amount on the face of the complaint. Can figure this out after some discovery

Reasoning: Court has the power to evaluate a case prior to trial where sufficient info has been made available thru pretrial discovery & comprehensive pretrial narrative statements which disclose medical reports

District Court gave s ample opportunity at the pretrial stage to justify their jurisdictional amount

3 Tests to determine if have jurisdictional amount (1) Saint Paul legal certainty test (2) Nelson could a reasonable jury find for you 1446 Removal by , preponderance of the evidence standard 3 tests for injunctions (1) Value of getting the injunction over $75,000 (2) Would the impact of getting an injunction on be in excess of $75,000 (3) If either from or perspective the value of injunction is over $75,000

Section 5: Removal 28 U.S.C. 1441 Removal of civil actions (a) Any civil action brought in a State court of which the district courts have original jurisdiction, may be removed by the to the district court (b) If sued in the state court in which any is a citizen, the s cannot remove to a fed. court Which claims get removed Original jurisdiction Supplemental jurisdiction (including related state law claims) (c) deals w/ federal question and unrelated state law claims (c)(2) The unrelated state law claims are severed and remanded to the state court (Barbri) Cases are removable when (1) If meets Fed. SMJ (fed. question or diversity) Exception: Diversity Cases only no removal if any citizen of the forum HYPO: A (NY) suing B (NJ) & C (GA). The case is filed in GA state court. The case can not be removed b/c is citizen of GA (2) Must remove within 30 days of SOP (3) All s who have been served must join notice of removal Law of unanimity (4) 30 days starts again for newly served

HYPO: (1) A, NY citizen vs. B, PA citizen. Action field in a NY state court Yes (2) A, NY citizen vs. B, PA citizen. Action filed in PA state court. No, is citizen of forum (state of PA) (3) A, Delaware Corp. w/ principal place of business in NY vs. B, NY Corp w/ principal place of business in Massachusetts. Action filed in Massachusetts state court based on trademark infringement Yes trademark infringement is fed. question case (4) If Mottleys had sued R.R. in a Kentucky state court, could the R.R. have removed under current 1441? No subject matter was not a federal issue (state K claim) Unless there was DOC here, they could not have gotten into fed. Court (5) A, citizen of Cali. vs. B, Conn. citizen & C, Conn Corp. w/ principal place of business in Conn Suit is in Cali. state court? Can just C remove? No all s have to want to remove; B has to ant to move to state court too Can B & C together remove? Yes, b/c they were not sued in Conn. & there is DOC BUT if s were sued in Conn. they could not remove b/c they are citizens of Conn.

Shamrock Oil & Gas Corp. v. Sheets, (U.S. Supreme Court, 1941)

Facts: P filed in state court. counterclaimed. P sought to remove to fed. court. moved to remand

Issue: Could remand to the fed. court?

Holding: No, s cannot remand

Rule: Under Rule 1441 cannot remove, even when the counterclaims for the jurisdictional amount

Only can remove

Reasoning: 1441(a) speaks of removal by the or s only Other: can dismiss their claim & then just leave the counterclaim they could remove thru that method b/c they become the and are no longer the original

Non-removable claims under 1441 You can remove the whole claim, but if there is an independent that doesnt satisfy the concept of sup. Jurisdiction or that is non-removable (like FELA action) have to remand back to state court s choice cause of action If you have a removable claim & file in state court, under 1441(a) w/o getting into (c) you can remove that claim w/ any supp. claims that satisfy 1367 supp. jurisdiction claim Assuming no unrelated claims are involved then your in 1441(a) If there are unrelated claims then you are under 1441(c) & then the unrelated claims have to be remanded to state court Unrelated claims go back auto to state court Supp. claims are looked at under 1367(c)

Carnegie Melon University v. Cohill, (U.S. Supreme Court, 1988) brought the case in state court & there was no diversity b/t the parties. brought both federal and state claims The claims in this suit were related The Court held this was not a 1441(c) issue b/c it was it was not unrelated, but the fed. court may dismiss or remand supp. state law claims 1441(c) applies to claims that are unrelated Court further held, when the fed. claim that justifies removal is eliminated, the district court can remand the remaining pendent state claims to the state court in pursuit of economy, convenience, fairness, and comity Borough of West Mifflin v. Lancaster, (US Court of Appeals, 3d Circuit, 1995)

Facts: s (Lindsey & Coughanour) brought suit against (Borough) bringing both state & federal law claims for discrimination. 1) brought in a state court. 2) Then the case was removed 3) The Judge then remanded whole case back to state court under 1441(c).

Issue: Whether s claims fell within jurisdiction of federal court under 1441(c), thus allowing the writ of mandamus to be granted against Judge Lancaster

Holding: Yes, those claims fell within fed. jurisdiction; the fed. claim is not separate & independent under 1441(c) so the Cistrict Court had no authority to remand the case under that section

Rule: 1441(c) provides for removal or remand ONLY where the federal questions claims are separate & independent from the state law claims w/ which they are joined in the complaint

Reasoning: Suit involving pendent state claims that derive from a common nucleus of operative fact (Gibbs) do not fall within the scope of 1441(c) since pendent claims are not separate & independent

(1) Court said this is not a 1441(c) issue b/c fed. & state law claims are from the same nucleus of operative fact, thus 1367(c) should be conducted to determine if the state claim substantially pre-dominates (2) Court said only able to use 1367(c) to a limited exception where the state law claim constitutes the real body of the case & fed. claims is an appendage Nothing in 1367(c) authorizes the judge to remand the fed. claim

You need a 1367(c) analysis to determine if you can remand the claims & even under 1367(c) you cannot remand the fed. question

Section 6: Venue Venue tells us exactly which court/which district the case is going to be in 28 U.S.C. 1391 Venue generally (a) s choice (b) Basic Rules of s choice (1) Can lay venue in any district where all s reside (domicile) If all s reside in diff. districts of same state you may sue them in district court where any one of them resides (2) Can lay venue in any district where a substantial part of the claim arose (3) If there is no district in which action may otherwise be brought, then any district in which is subject to personal jurisdiction w/ to such action Business reside in all places where it is subject to PJ 1391(1)(2) if satisfied youre stuck w/ them HYPO: A of Maine vs. B, Vermont & C, New Hampshire. Cause of action arose in Maine Maine b/c the s are all from diff. States A of Maine vs. B, Buffalo in Western District, NY & C, from Manhattan in Southern Dist., NY. Cause of action arose in Maine 2 choices Maine or either district of NY A of Buffalo & B of Manhattan vs. C of Vermont & D from New Hampshire. Cause of action arose in Quebec Anywhere the is subject to PJ Diff. b/t Venue & SMJ Venue tells you which district the court will be SMJ question is can you get into fed. court at all Rule (4)(k) Territorial Limits of Effective Service Fed. Courts & states are restricted by the 14th Amendment (due process) Fed. Courts are unable to extend their authority beyond the state courts UNLESS there is a statute that provides that fed. court can extend their SOP beyond the State In order to serve a party when they are out of the state, there has to be a state statute that authorizes this state long arm statute If satisfied then you can serve them Also has to comply w/ 14th Amendment (k)(2)(a) foreign parties (k)(2)(b) arises under the 5th Amendment (goes from 14th to 5th) 4(e)(f)(g)(h)(i) all dealing w/ manner of service; including foreign parties 4(d) (most important) how most ppl are served today Waiver of service if they sign the form they have waived service which means you dont have to respond to this complaint within 21 days, so now they have 60 days pays the summons; unless the rejects the waiver s right to waive in-hand service; they dont have to; but whatever It cost to serve them the has to pay if they reject the waiver Mail is most common form of service; least expensive Section 7: Hypothetical Jurisdiction Ruhrgas AG v. Marathon Oil Co., (US Supreme Court, 1999)

Facts: s filed this lawsuit against in TX state court. removed the case to District Court of Southern District of TX. s moved to dismiss the complaint for lack of PJ. s moved to remand the case to the state court for lack of federal SMJ

Issue: When a SMJ issue is a complicated one, does the trial court have discretion to go to the PJ issue w/o first dealing w/ the SMJ issue?

Holding: Yes, where you have a relatively easy PJ issue, you can adjudicate the PJ question issue before you have figured out if you have SMJ

Rule: Where the district court has before it a straightforward PJ issue presenting no complex question of state law & the alleged defect in SMJ raises a difficult & novel question, the court does not abuse its discretion by turning directly to PJ

Reasoning: Judicial efficiency

Personal Jurisdiction4. Part 4: Personal Jurisdiction Section 1: Personal Jurisdiction Personal Jurisdiction (PJ): Power to enter a judgment that will be recognized & enforced in that state & other states Appropriate limits on the places where a can be required to defend a lawsuit Rules of territorial authority to adjudicate (jurisdiction rests heavily on the Due Process Clause of the Federal Constitution as its outer limit In personam: jurisdiction over the individual In-rem: jurisdiction over property itself Quasi in-rem: action based on a claim for damages where a s property is subject to the jurisdiction of the court Property is not the source of the claim/conflict but is sought as the compensation by General Appearance: can be sued in that forum in a claim that arose anywhere in the world submits to the in personam jurisdiction of the court Special Appearance: The act from the claim has to arise from the state Arguing no in personam jurisdiction appears to challenge the authority of the court to adjudicate the obligations of the

No contacts Causal or Isolated Single act Continuous but limited Substantial NO JURISDICTION SPECIFIC JURISDICTION GENERAL JURIS

Factors Court Considers to Determine In-Personam Jurisdiction

Pennoyer Territorially-presence, statutes or consent Co-equal sovereign states

Intl Shoe Degree & quality of Ks Relation of contacts to cause of action Benefits from & Protection of State General Juris. relation of to forum Protecting against burden of litigating in far away location i.e. fairness

McGee Forums states interest s interest Relation of purposeful acts to cause of action

McGee v. World-Wide Foreseeable make cost of litigations part of doing business?

World-Wide Furthering fundamental social policies

Hanson purposefully avails itself of conducting activities in state

Burger King Continuous but limited activity in the forum state Supports juris. over claims arising out of that continuous activity

Shaffer Jurisdiction by necessity Relation among forum; s acts & litigation

Shaffer & World-Wide Interstate Systems interest in efficient resolution of disputes

Pennoyer v. Neff, (U.S. Supreme Court, 1878)

Facts: (Neff) brought suit against (Pennoyer) for an action of ejectment to recover possession of wrongfully withheld land

Issue: Whether the personal judgment recovered in the State court of Oregon was w/ validity & authorized the sale of the prop. in controversy

Holding: No, the personal judgment in the state court of Oregon was w/o validity & did not authorize the sale of the prop.

Rule: Traditional Basis for PJ

(1) is served w/ process in the forum

(2) s agent was served in the forum

(3) is domiciled in the forum

(4) s consents to jurisdiction

Rationale:

No state can exercise direct jurisdiction & authority over persons or property w/o its territory

If w/o personal service, judgments in personam, obtained ex parte against non-residents & absent parties, upon mere publication of process (which in the great majority of cases, would never be seen by the parties interested) could be upheld & enforced, they would be the constant instruments of fraud & oppression

Substituted SOP by publication is effectual only where the action is nature of a proceeding in rem

Under some conditions you can have an alternative method of serving someone as long as there is notice & the consented

As long as you have the power to regulate, then you can

Tyler v. Judges of the Court of Registrations, (Supreme Judicial Court of Massachusetts, 1900)

Facts: s filed petition for writ of prohibition against the judges of the Court of Registration () to prevent their proceedings upon an application concerning land in which the petitioner claims an interest

Issue: Whether the service required of this application is constitutional

Holding: Yes, there is no constitutional requirement that the summons, even in a personal action, shall be served by an officer

Rationale: Necessity our economic system (prop. core aspect of this) much of what we do depends upon the ability to exclude others from our prop.

Here they didnt really attach the prop.

You have the power to quiet title (authority of quiet title is critical of necessity b/c of the nature of our economic system)

You should make sure that you all you can in order to notify those who may have an adverse claim in the prop.

Garfein v. McInnis, (Court of Appeals of New York, 1928)

Facts: brought action for the specific performance of an alleged K to convey real estate in the State of New York, service of the summons & complaint has been made in the State of Connecticut, upon a resident of that State ()

Issue: Whether a judgment in an action for specific performance is only a decree in personam against the party who agreed to convey the prop. or whether the court in such an action may grant judgment which will operate upon the prop. itself (in rem) & result in a transfer of the title to a successful party though the fails r refuse to obey a command of the judgment directed to him

Holding: No, the action is not purely in personam

The objection that the court by out-of-state service obtains no jurisdiction over the person of a non-resident is w/o force

Rationale: Specific performance Cause of action to enf