civil procedure outline - blogs.law.gonzaga.edu · 2012 fall civil procedure williams civil...

2012 FALL CIVIL PROCEDURE WILLIAMS

Civil Procedure Outline Professor: Vickie Williams Text: Civil Procedure Cases, Materials and Questions (6th Edition) by Freer

1. INTRODUCTION a. Civil v Criminal

A. Civil also helps administer justice B. “By a preponderance of the evidence” v. “Beyond Reasonable Doubt” C. Defendants have more rights in criminal cases

b. Federal v State A. Federal restricted to federal issues B. State courts have general authority

c. Adversary System A. Cases must be brought to judges B. Zerosumgame C. Alternative Dispute Resolution (ADR)

1. Negotiation 2. Mediation 3. Arbitration

2. PERSONAL JURISDICTION a. Generally

A. A court’s authority over a defendant B. Established by defendant in order to avoid violating the Due Process Clause of

the Constitution C. Personal Jurisdiction must fit the Constitutional requirements AND the forum

state’s requirements D. Must always comport to “traditional notions of fair play and substantial justice.”

(Shoe, Shaffer) b. Types of Personal Jurisdiction:

A. In Rem – the case is over ownership of attached property and ownership is determined absolutely. Recovery limited to the attached property.

B. QuasiIn Rem I – the case is over ownership of attached property and ownership is determined between parties. Recovery limited to the attached property.

C. QuasiIn Rem II – the case is unrelated to the attached property but recovery is

1


limited to the attached property’s value. D. In Personam – jurisdiction over the person, no attachment of property and no

limit to recovery. c. In Personam

A. General Jurisdiction (Goodyear) – jurisdiction over every claim against that defendant if there are substantial, systematic and continuous contacts, meaning:

1. Individual a. Domicile

2. Corporation a. State of incorporation b. Principal place of business

B. Specific Jurisdiction – jurisdiction for a specific claim 1. Traditional Methods (Pennoyer)

a. Personal Service IN forum state (Burnham) b. Service of Agent IN forum state (Hess) c. Consent

i. Appointment: choose an agent for service in the forum ii. Contract specifies (forum selection clause) iii. Take an action that the law deems to imply consent to

suit (Hess) iv. Special Appearance: appear to contest personal

jurisdiction but then lose v. Waiver: acquiescent conduct during litigation

2. Minimum Contacts (Shoe) a. Contacts must arise out of or relate to the specific claim b. Only contacts between the defendant and the forum state c. Foreseeability: defendant’s contacts must be enough that

defendant would reasonably foresee being haled into court in the forum state. (WWVW)

d. Purposeful Availment: defendant deliberately engaged in activities to benefit from the forum state. Continuous and systematic contacts show purposeful availment. (Shoe, Hanson)

e. Fairness(considerations): must comport with “traditional notions of fairplay and substantial justice”

i. Burden on defendant (cost, distance, evidence) ii. Forum state’s interest iii. Plaintiff’s convenience iv. Judicial Economy v. Shared interests of the states in furthering social policy

2


f. Stream of Commerce i. Stream of Commerce Plus (McIntyre): Injecting

product into the stream of commerce creates a contact with the state but is not sufficient to establish Personal Jurisdiction without additional contacts with the forum state.

ii. Internet (Revell): websites do not create general jurisdiction by their continuous and systematic presence in a state unless

1. they meet Zippo’s Sliding Scale rule for active and

2. are targeted towards the forum state. d. Development of Personal Jurisdiction by Case

A. Pennoyer: D must be physically present in forum state for service to establish In Personam JDX.

B. Hess: physical presence not required if there is an appointed representative upon whom service is made in the state, the appointment can be implied.

C. International Shoe: To establish in personam jurisdiction there must be a minimum level of contact between state and defendant. Continuous and Systematic presence to establish general jurisdiction.

D. Volkswagen: There are four main factors for considering jurisdiction 1. Physical Presence 2. Benefit from the state 3. Purposeful availment 4. Foreseeability

E. Gray: The introduction of a product into the stream of commerce gives specific jurisdiction in any state that product is sold.

F. Keeton: The plaintiff’s lack of contact with a forum state does not diminish jurisdiction and a state with jurisdiction may try cases for damages in any state.

G. Calder: Targeting harm towards a state can allow jurisdiction within that state under foreseeability principle of WWVW.

H. Burger King: Once the threshold of minimum contacts has been met the court should also evaluate PJX on five fairness factors.

1. Inconvenience for a Δ 2. State’s Interest 3. Π’s interests 4. Interest in Efficiency 5. Interstate interest in substantive policy

I. McIntyre Machinery: The stream of commerce theory does not create enough

3


contact to meet the Shoe minimum contacts test J. Goodyear: Continuous, systematic, and substantial activity is the standard to be

proved for establishing general jurisdiction and stream of commerce alone cannot establish this.

K. Shaffer: The Shoe minimum contacts test must be satisfied for all forms of personal jurisdiction including InRem and Quasi InRem

L. Revell: Websites do not create general jurisdiction by their continuous and systematic presence in a state unless they meet Zippo’s Sliding Scale rule for active and are targeted towards the forum state.

M. Burnham: A person is under a forum’s jurisdiction if served in person while intending to be within that state.

e. Terms A. Long Arm Statute: A state statute that gives it the authority, as bound by the

Due Process Clause, to pull nonresident defendants into courts of their jurisdiction.

B. Minimum Contacts: a standard set forth in International Shoe which restricts jurisdiction of states over individuals with little or no contact with the forum state.

C. Fair Play and Substantial Justice: all forms of PJX must comport with this under Shoe & Shaffer.

D. General Jurisdiction: The contacts establishing jurisdiction do not relate to the claim.

E. Specific Jurisdiction: The claim is related to the contacts which are used to establish jurisdiction.

F. Zippo’s Sliding Scale Test: A website’s creation of systematic and continuous contact with the state for the purposes of jurisdiction should be based upon the passivity or activity of the website.

G. Int’l Shoe Test: Suit cannot be brought against an individual unless they have minimum contacts with the forum state, and such lawsuit does not offend traditional notions of fair play and substantial justice.

H. Due Process Clause: The Fifth and Fourteenth Amendment of the US Constitution ensure citizens with Due Process under the law and this rule guides restrictions placed on courts in the US for US citizens.

I. Full Faith and Credit Clause: Every state must enforce the judgments of every other state unless the court that rendered the judgment lacked personal jurisdiction.

3. PERSONAL JURISDICTION TEST a. Was Δ present in the forum state when process was served on them?

A. Yes There is Personal Jurisdiction (Burnham)

4


B. No Does a state statute allow jurisdiction (Long Arm) 1. Yes Do any of the traditional bases apply? Δ’s agent served

w/process in the state? Δ is domiciled in the state? Δ consents to jurisdiction? (Pennoyer)

a. Yes There is personal jurisdiction. b. No Are there relevant contacts between the Δ and the forum

state? (Shoe) i. Yes Are Δ’s contacts with the state enough that he

would reasonably foresee being haled into court there? 1. Yes – Does the claim arise from the Δ’s contact

with the forum? a. Yes (Specific) Comply with notions of

fair play? If yes then there is personal jurisdiction. (Int’l Shoe)

i. Inconvenience for a Δ (BK) ii. State’s Interest (Burnham) iii. Π interests iv. Interest in Efficiency v. Interstate interest in substantive

policy b. No (General) Are the Δ’s contacts w/

the forum continuous and systematic? i. Yes – There is Personal

jurisdiction. ii. No – No personal jurisdiction

2. No – No Personal Jurisdiction (WWVW) ii. No Personal Jurisdiction – Contact must result from

purposeful availment (WWVW) c. No There is no personal jurisdiction

b. Notice and Opportunity To Be Heard A. Notice must be reasonably calculated to provide actual notice of the action

within the bounds of the type of case. (Mullane) B. Notice is valid reasonably calculated to provide actual notice and follows the

statutes of the forum state. (National Dev. Co) C. Connecticut v Doehr establishes the notice due before being deprived of

property under the 14th Due Process Clause 1. The court must determine that attachment of property passes the

Matthew’s Test before depriving the defendant of its use: a. Consider private interest affected by prejudgment measure

5


b. Consider risk of erroneous deprivation and value of additional or alternative safeguards

c. Consider interests of the party seeking the prejudgment remedy d. Consider government interests (government as party or ancillary

interests if the government is not a party) 4. SUBJECT MATTER JURISDICTION

a. Diversity and Alienage A. General: a federal court has subject matter jurisdiction over claims where every

plaintiff is a citizen of a different state from every defendant AND the amount in controversy exceeds $75,000.

B. Complete Diversity: every defendant must be from a different state than every plaintiff means that no defendant can be a citizen of the same state as any plaintiff. (Strawbridge v Curtiss)

C. Determining Citizenship 1. Time: Citizenship is determined at the time of filing the lawsuit 2. Natural United States Citizens: are citizens of the state where they are

domiciled a. Domicile: physical residence in the state with the intent to remain

or return there (Moss v Perry) 3. Permanent Resident Aliens: are citizens of the state of their domicile 4. Corporate Citizens: are citizens of every

a. State of Incorporation b. State of their principal place of business

i. Principal Place of Business: Where the corporation’s officers direct, control and coordinate the corporation’s activities. (Hertz) (AKA Nerve Center)

5. NonCorporate Entities (LLC, LLM, Partnerships etc.): are citizens of all jurisdictions which its members are citizens of.

6. Equation Format a. Diversity Jurisdiction = Amount in Controversy + Citizens of

Different States b. State Citizenship = United States Citizen + domicile in the state c. Domicile in the State = physical residence in the state + intent to

remain or return there D. Amount in Controversy

1. Must be GREATER THAN $75,000 2. Must be based on a good faith estimate (not have to be the amount

awarded) 3. Aggregation

6


a. Multiple claims from separate plaintiffs CANNOT be aggregated

b. Multiple claims against separate defendants CANNOT be aggregated

c. Multiple claims against a single defendant CAN be aggregated by a single plaintiff

d. Claims against jointly liable tortfeasors CAN be aggregated. b. FEDERAL QUESTION

A. General: a federal court has subject matter jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” (28 USC § 1331)

B. Well Pleaded Complaint Rule: to plead a federal question it must be in the face of your complaint and the basis of your claim. (Mottley)

1. Interpretation of “arising under” in § 1331 is more narrow than in Art. III of Constitution

2. Counter Claims: anticipated federal law counter claims do not create Federal Question subject matter jurisdiction

a. EXCEPTION: patents, plant variety protection, copyrights and trademarks. counterclaims give federal courts jurisdiction. (28 USC § 1338)

C. Exclusive Federal Jurisdiction 1. Admiralty 2. Bankruptcy 3. Native American 4. Ambassadors 5. Patents/Plant Variety/Copyrights/Trademarks

D. Centrality of Federal Issue 1. Historical Cases

a. Well Works v Layne No federal question because the cause of action was based on state law.

b. Smith v Kansas City Title Yes federal question because right to relief depends on construction of federal law

c. Moore v Chesapeake & Ohio Ry – No jurisdiction because state law claim

d. Merrell Dow v Thompson – No jurisdiction, refused to overrule Smith. Not enough, not central enough to the law

2. Controlling Rule (Grable): federal question jurisdiction is present if i. The case necessarily raises a federal issue ii. The federal issue is actually disputed and substantial

7


1. Example: federal interest in tax collection iii. Asserting federal jurisdiction does not upset Congress’

judgment regarding the appropriate allocation of work between federal and state courts.

1. Will allowing this case open the floodgates to the federal courts?

2. Is there an existing right of action? a. This makes an avenue to federal court

but it is not a right to go to federal court. (“Door mat not a key”)

E. Private Right of Action: for a claim to be based upon a federal statute, there must be either an express or implied private right of action

1. Express: statute specifically authorizes a civil suit and it is expected that the federal courts are to hear related actions.

2. Implied: the authority for a civil suit is created by the courts inferring it from the statute.

c. SUPPLEMENTAL JURISDICTION A. Constitutional Authority: federal courts have subject matter jurisdiction over

“cases” and “controversies” (Art. III, Sec. 2) B. Statutory Authority: federal courts 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” (28 USC Section 1367(a))

C. Related Claims (Gibbs): claims are part of the same case or controversy as long as they

1. arise out of the same common nucleus of operative facts 2. would ordinarily be expected to be brought in one case; 3. involve a federal question sufficient to confer subject matter jurisdiction.

D. Diversity Restrictions (1367(b): a claim does not have supplemental jurisdiction if :

1. Diversity: the claim with original jurisdiction is based on diversity 2. Plaintiff: the claim is brought by a plaintiff, AND 3. Rule: the claim is against a party joined under rule 14 (third party), 19

(compulsory joinder), 20 (by plaintiff), or 24 (intervention) E. Judicial Discretion (1367(c): courts may decline to exercise supplemental

jurisdiction if: 1. The claim raises a novel issue of state law; 2. The (state law) claim substantially predominates over the claim or claims

over which the district court has original jurisdiction;

8


3. The district court has dismissed all claims over which it has original jurisdiction; or

4. In exceptional circumstances, there are other compelling reasons for declining jurisdiction.

5. REMOVAL a. General Rules (28 USC § 1441)

A. A case may be removed from a state court to a federal court with original jurisdiction, by the defendants, to the embracing federal court

1. Original Jurisdiction: federal court must have proper subject matter jurisdiction, personal jurisdiction, and venue

2. Embracing: the federal court for the federal district in which the original state court is located

B. Citizen of Forum State: a defendant cannot remove if 1. subject matter jurisdiction is solely based on diversity AND 2. the defendant is a citizen of the forum state.

C. Joinder of Federal and State Claims 1. State law claims may be removed as long as they have subject matter

jurisdiction (federal question, diversity, or supplemental) 2. Remand: if a state claim without subject matter jurisdiction is removed

with a case to federal court, the court must remand state law claims to the original state court.

D. Actions against foreign states may be removed by the foreign state and 1446(b) times may be extended.

b. Procedure for Removal of Civil Actions (28 USC § 1446) A. Defendant must file a notice of removal in the district court, notice must contain

1. A short and plain statement of the grounds for removal AND 2. A copy of all process, pleadings, and orders served on defendant

B. Notice of removal must be given to adverse parties and the State court C. Limitations

1. All defendants must join in or consent to removal 2. Defendant must remove within 30 days of service of plaintiff’s complaint 3. If served at different times then the latest defendant may still remove

even if the others did not, must still get consent from everyone D. Diversity Cases: IF the case becomes removable by a voluntary dismissal of a

nondiverse party THEN the 30 day time limit to remove restarts. (§1446(b)(3)) 1. Removal cannot happen after 1 year of commencement of the action

under §1446(b)(3) unless plaintiff acted in bad faith 2. If the court involuntarily dismisses a party then removal is not allowed

because an appeal could overturn the dismissal and undermine subject

9


matter jurisdiction for all federal court actions c. Procedure after Removal Generally (28 USC § 1447)

A. IF defendants are added that ruin subject matter jurisdiction THEN the court must either (1) deny joinder or (2) remand

B. District court can issue necessary orders and processes C. District court can require copies of all records from the state court. D. Motion to remand must be made within 30 days E. Only federal officers, agencies and civil rights cases can have a remanding order

appealed. 6. VENUE

a. Generally A. 3 Methods of Venue (§ 1391) venue is proper in

1. any district where a defendant resides if all defendants are residents of the same state.

2. any district where events or omissions occurred or a substantial part of the property situated.

3. if no district satisfies above, then in any district where any defendant is subject to court’s personal jurisdiction (Fallback)

b. Venue can be waived by the defendant c. Residence for Venue purposes

A. US Resident Individuals: district where domiciled B. Nonresidents of US: any judicial district C. Business Entities: state where subject to court’s personal jurisdiction D. Corporations in MultiDistrict States: assuming there is personal jurisdiction

over the corporation in that state, corporations reside in 1. all districts of the state where they would be subject to personal

jurisdiction 2. if there are none of these districts then only in the district with the most

significant contacts. 7. TRANSFER

a. Original Venue Proper (§ 1404): transfer for convenience A. Can transfer to any district where the suit “might have been brought” IF

1. In the interest of justice 2. For the convenience of parties & witnesses

B. OR if ALL parties consent the court can transfer to a district where the case could not have been brought in the first instance (except islands)

C. Court may transfer to another division in the same district (1404(b)) b. Original Venue Improper (§ 1406): transfer to venue where case could have been

brought to correct error

10


c. Transfers under both 1404 and 1406 proper without original court having personal jurisdiction (Goldlawr)

d. Might Have Been Brought: a court with personal jurisdiction and venue e. Choice of Law: generally a federal court in a diversity case applies the choice of law

rules of the state in which it sits A. 1404 Transfer: apply the choice of law of the original federal court B. 1406 Transfer: apply the choice of law of the new federal court

f. No similar mechanism between states in state courts (e.g., Can’t transfer from Washington State Court to Alabama State Court)

A. Dismissal if transfer not available or if some extraordinary circumstance exists. 8. FORUM NON CONVENIENS

a. General: a federal court may dismiss a claim for forum non conveniens after considering private interest and public interest factors

A. Court Made: no statute declares forum non conveniens as right or rule B. Almost always comes up when dealing with a foreign party

b. Considerations A. Does the alternate forum provide any method for recovery B. Public Interest Factors

1. Court Congestion 2. Local Interests 3. Familiarity of tribunal with the law to be applied in a diversity case 4. Avoidance of conflict of laws, or application of foreign law 5. Burden on local citizens (jury duty).

C. Private Interest Factors 1. Access to evidence 2. Availability of subpoena power for unwilling witnesses 3. Cost of appearance of witnesses 4. Importance of viewing the scene of the accident or event 5. Ability to join third parties

9. RULE 12 PRETRIAL MOTIONS AND DEFENSES a. Challenging Personal Jurisdiction

A. Special Appearance: a defendant can make other motions while contesting personal jurisdiction, except in some state courts

B. Limited appearance 1. To contest in rem or quasiinrem jurisdiction 2. Defendant may appear without losing value of property restriction from

in rem jurisdiction 3. Unclear if available in federal court.

b. Rule 12(b) Motions

11


A. Lack of subject matter jurisdiction 1. Not Waivable: may object as long as the case is alive

B. Lack of personal jurisdiction 1. Waivable: must be raised with other 12(b) motions

C. Improper Venue 1. Waivable: must be raised with other 12(b) motions

D. Insufficient Process 1. Waivable: must be raised with other 12(b) motions

E. Insufficient Service of Process 1. Waivable: must be raised with other 12(b) motions

F. Failure to state a claim (or defense) 1. May be raised until end of trial

G. Failure to join an indispensable party 1. May be raised until end of trial

c. 12(h)(1) Use It or Lose It: 12(b) 25 must all be brought at the same time as the first 12(b) motion or the right to contest is waived

d. Collateral vs Direct attacks A. Collateral: not appearing to defend against the claim and then attacking the

enforcement of the summary judgment based on the personal jurisdiction of the original court

1. Defendant runs the risk of court in state of enforcement upholding jurisdiction and then being subject to the judgment.

B. Direct: making a special appearance to contest the case on jurisdictional grounds.

1. Defendant becomes subject to the court's ruling on jurisdiction if he specially appears.

C. Questions for deciding whether to use a Collateral or Direct Attack 1. Where does the client have property? 2. Where is the alternative forum? 3. How strong is the case on the merits? 4. How strong is the case for personal jurisdiction?Expenses of litigating in

far way forum? 10. PLEADINGS

a. General: pleadings give notice and provide a means to test legal sufficiency of a claim. b. These are considered pleadings

A. Complaint B. Answer C. ThirdParty Complaint D. Reply if ordered by court

12


c. Rule 8(a)(2): a short and plain statement of the claim showing the pleader is entitled to relief

A. Required Content: “If everything in the complaint was proven, would the client be entitled to relief?”

B. Old Rule: A proper complaint can be one that is inarticulate as long as the complainant has stated some facts which could establish a cause of action. (Dioguardi)

C. New Rule: A complaint must allege facts with sufficient specificity to state a claim for relief that is plausible, not merely conceivable, on its face. (Twombly, Iqbal)

D. Pleadings can made in the alternative even if contradictory (McCormick v. Koppman)

d. Rule 9: Heightened Pleadings with higher specificity A. Generally: Heightened pleading requirements are improper (Leatherman). B. Specifically Allowed:

1. Fraud 2. Mistake 3. Special Damages

e. Pretrial Motions (FRCP 12) A. Rule 12(c) Motion for judgment on the pleadings B. Rule 12(e) Motion for a more definite statement C. Rule 12(f) Motion to strike: insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter. 1. Sua Sponte or 2. On motion by party before responding to the pleading or, if a response

is not allowed, within 21 days after being served with the pleading f. Amended and Supplemental Pleadings (FRCP 15)

A. General: leave to amend “shall be freely given when justice so requires” B. Free amendment pretrial within 21 days of service or when parties agree C. Amendments may be made during trial to match the evidence D. 15(c)(1)(B): the amended claim arose out of the same transaction E. RelationBack: if the original complaint fairly disclosed the general fact situation

out of which the new claims arose then the amendment may be proper F. Adding Parties: permitted if the party to be added had knowledge of the case

and knew that it should have been involved 1. 120 days from filing the complaint or longer if there is “good cause”

g. Supplemental Pleadings. may also serve supplemental any time the court allows. 11. CHOICE OF LAW

a. General: there is no federal general common law so diversity cases heard is federal

13


courts must use the state substantive law. (Erie) However, the federal courts may create rules for the process and procedure of their own courts. (Rules Enabling Act)

b. Erie Analysis: Is this a diversity case? A. No. No Erie Issue B. Yes. What type of federal law is in conflict?

1. (REA Test) FRCP/Statute. Is it an FRCP or a Statute? a. Statue. Apply the statute. b. FRCP. Does the rule necessarily conflict with state law (on

point)? i. If No. Apply both, harmonizing the state and federal

laws. ii. If Yes. Then Does the FRCP truly regulate procedure?

1. No. Apply state law. (Rare) 2. Yes. Does it abridge, enlarge, or modify a

substantive right? (Hanna) (Rules Enabling Act) Does it change the private lives of citizens?

a. No. Apply FRCP b. Yes. Apply State Law (Rare)

2. (Erie Test) Not FRCP/Statute (eg, right to jury). Is the issue procedural?

a. No. Apply state law. b. Yes. Would application of the federal law advance the twin

aims of Erie (discourage forum shopping; equitable administration of laws; consider outcome determination here)? (Hanna)

i. Yes. Apply federal law. ii. No. (Byrd Balancing Test) Is there an overriding

federal interest justifying the application of federal law? 1. If no. Then apply the state law. 2. If yes. Then apply federal law.

12. JOINDER a. Joinder of Parties

A. Joined by Plaintiff FRCP Rule 20 1. Plaintiff may join Plaintiffs if:

a. Right to relief arises out of same transaction or occurrence, or series of; and

b. They share any question of common law or fact. 2. Plaintiffs may join Defendants if:

a. Right to relief is asserted jointly, severally, or arises out of the

14


same transaction or occurrence b. Any question of common law or fact will arise in the action

3. Judicial Separation: the court may issue an order for separate trials to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. (FRCP 20(b))

B. Third Parties 1. By Defendant (FRCP Rule 14 (a))

a. When a defending party may bring in a third party. i. Defending party may, as a thirdparty plaintiff, serve a

summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But, the thirdparty plaintiff must, by motion, obtain the court’s leave to do so if it files the complaint more than 14 days after serving its original answer.

2. By Plaintiff (FRCP Rule 14(b)) a. When a claim has been asserted against a plaintiff, the plaintiff

may bring in a third party if this rule would allow a defendant to do so.

C. Compulsory Joinder FRCP Rule 19 1. Required Parties. A person who is subject to service of process and

whose joinder will not deprive the court of subjectmatter jurisdiction must be joined as a party if:

a. in that person's absence, the court cannot accord complete relief among existing parties; or

b. that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

i. as a practical matter impair or impede the person's ability to protect the interest; or

ii. leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

2. Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.

3. Venue. If a joined party objects to venue and the joinder would make

15


venue improper, the court must dismiss that party. D. Permissive Joinder FRCP Rule 20

1. Joined as Plaintiffs if: a. they assert any right to a claim arising out of the same

transaction, occurrence or series of transactions and occurrences and

b. any question of law or fact common to all plaintiffs will arise in the action.

2. Joined as Defendants if: a. if any right to relief is asserted against them arising out of the

same transaction, occurrence, or series of transactions b. any question of law or fact common to all defendants will arise

in the action. 3. No party needs to be interested in obtaining or defending against all the

relief demanded. The court may grant judgment to a plaintiff according to their rights, and against a defendant according to their liabilities.

E. Intervention 1. Intervention of right, the court must permit anyone to intervene who:

a. is given an unconditional right to intervene by a fed state; or b. claims an interest subject to the action, and if disposing the

action may as a practical matter impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

2. Permissive Intervention a. On timely motion, the court may permit anyone to intervene

who: i. is given a conditional right to intervene by fed statute ii. has a claim or defense that share common question with

main action b. On timely motion, the court may permit a fed or state gov’t

officer or agency to intervene if based on: i. statute or executive order administered by officer or

agency; or ii. any regulation, order, requirement, or agreement issued

or made under the statute or executive order. c. Court must consider whether the intervention will unduly delay

or prejudice original parties’ rights. b. Joinder of Claims

A. Counterclaims

16


1. Compulsory Counterclaim (FRCP Rule 13(a)) a. A pleading must state as a counterclaim any claim thatat the

time of its service the pleader has against an opposing party if the claim:

i. Arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and

ii. Does not require adding another party over whom the court cannot acquire jurisdiction.

b. The pleader need not state the claim if: i. when the action was commenced, the claim was the

subject of another pending action; or ii. the opposing party sued on its claim by attachment or

other process that did not establish personal jx over the pleader on that claim.

2. Permissive Counterclaim (FRCP Rule 13(b)): A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

B. Permissive Crossclaim (FRCP Rule 13(g)) 1. A pleading may state as a crossclaim any claim by one party against a

coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if any claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim for contribution or indemnification against the coparty.

C. Third Party Claims (FRCP 14) 1. By Third Party Plaintiff

a. A defending party may, as thirdparty plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.

2. By Third Party Defendant a. Compulsory

i. Defense against Third Party Plaintiff (14(a)(2)(A) ii. Counterclaim against Third Party Plaintiff (14(a)(2)(B) iii. Counterclaim against Plaintiff (14(a)(3))

b. Permissive i. Counterclaim against Third Party Plaintiff (14(a)(2)(B) ii. Crossclaim against other Third Party Defendant

(14(a)(2)(B) iii. Defense against Plaintiff’s claim against Third Party

17


Plaintiff (14(a)(2)(C) iv. Counterclaim against Plaintiff

1. (14(a)(2)(C)) Must arise from same transaction or series of transactions as Plaintiff’s claim

2. (14(a)(3)) In response to Plaintiff’s direct claims

3. By Plaintiff a. The plaintiff may assert against the thirdparty defendant any

claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the thirdparty plaintiff.

D. Against Opposing Party (FRCP Rule 18(a)) 1. A party asserting a claim, counterclaim, crossclaim, or 3rd party claim

may join as independent or alternative claims as many as it has against opposing party.

13. DISMISSAL a. Without Prejudice (FRCP 41(a))

A. Plaintiff may unilaterally dismiss an action without prejudice without court order if done shortly after filing and no counterclaims were filed

B. Plaintiff may, by agreement of all parties, dismiss an action without prejudice without a court order UNLESS this is the second time doing so

C. Plaintiff may request that the action is dismissed by court order 1. If a counterclaim was filed then the court can only dismiss plaintiffs

claims if the counterclaims can survive the dismissal 2. Such claims are dismissed without prejudice unless stated otherwise

b. With Prejudice (FRCP 41(b)) A. Defendant may request a dismissal, with prejudice, of an action or claim if the

plaintiff fails to prosecute or comply with the FRCPs B. Involuntary dismissals are with prejudice except when stated otherwise and

when dismissed for lack of jurisdiction, improper venue, or failure to join a party C. A Second voluntary dismissal of a claim is with prejudice unless stated

otherwise 14. TRIAL ISSUES

a. Right to Jury A. Source of Right to a Jury

1. Courts of Law Jury Trial 2. Courts of Equity NO Jury Trial

B. Law vs Equity Test 1. Part 1: Does this issue match an 18th century writ under law or equity?

18


2. Part 2: Look at the relief requested a. Money remedies: Jury b. Injunctive relief, (restitution?): No Jury

3. Demand for jury must be made within 14 days of the last pleading 4. Mixed Claims: usually try legal claims first

b. Jury Selection A. Challenges to selection of juror

1. For Cause: juror has close connection w/ parties or witnesses, or cannot be impartial

2. Peremptory: at will by the attorney, no explanation necessary. a. Purpose

i. Legitimize the jury verdict ii. Equalize rights of state & defendant iii. Prevent bias from extremes (theoretically)

b. 3 Allowed Per side B. Levels of Discretion

1. Strict Scrutiny: race, the state must show that it has a compelling interest in making this distinction and it has no other choice.

2. Heightened Scrutiny: gender, the state must have legitimate interests. 3. Rational Basis: State has a basis for making distinction

C. Seating a Diverse Jury: not permissible to select jurors to create ethnic diversity. D. Juror Misconduct: what may be used for impeaching a juror

1. Intrinsic: influence of biases, thought processes, motives. 2. Extrinsic: influences include independent research, flipping a coin 3. Intoxication: not admissible to impeach 4. Racially derogatory comments: not admissible to impeach.

c. Rule 56: Summary Judgment A. When there is no material issue of fact to be tried:

1. Parties agree on all material facts OR 2. A reasonable jury could not find for the party based upon the evidence

presented B. Burdens

1. Persuasion/proof: ultimate burden of persuasion on an issue or claim always stays with the party who raised the issue or claim.

2. Production: moving party has the initial burden of production. If it meets the burden, the burden of production shifts to the nonmoving party.

C. Heightened burden of proof increases burden of plaintiff at summary judgment. (Liberty Lobby)

D. Motion for Summary Judgment must point to specific evidence which

19


proves/disproves the case. (Celotex) E. Can be brought anytime until 30 days after the close of discovery.

15. PRECLUSION a. Claim Preclusion/Res Judicata

A. Preclusion doctrine requires a plaintiff to assert all rights to relief in a single cause of action

1. For claim preclusion to apply: a. there must be two cases involving the same claim b. case one must have a valid and final judgment on the merits c. the two cases must be between the same parties (or those in

privity) and in the same positions B. Three Claim Preclusion Tests:

1. Primary Rights: a plaintiff may bring separate cases for different types of claims without claims being precluded.

2. Single Wrongful Act: a claim is precluded if the claim results from the same wrongful act of a defendant that was adjudicated in the first case. (most popular)

3. Restatement 2d of Judgments: a claim is precluded if the claim results from the same transaction or series of transactions by the defendant

C. Privity 1. Represented: a nonparty whose interests were represented by a party

is held to be in privity with the party for purposes of claim preclusion (e.g. Trustee/beneficiary, Class representative/ class member)

2. Legal Relationship: a nonparty who has entered into a substantive legal relationship with a party binds the nonparty with the judgments against the party (e.g. successive owners of property, assignee of contract rights and assignor, insurer/insured)

D. Valid, Final Judgment on the Merits (Rule 41) 1. Valid: was the judgment rendered by a court of competent jurisdiction

(personal and subject matter)? 2. Final: where there are no more steps to go through in the case other

than appeal to a higher court. a. in the federal system, trial court judgements are entitled to claim

preclusion 3. Judgment on the merits

a. Generally, any judgements in which the claimant wins is considered “on the merits” for purposes of claim preclusion against the claimant. (Includes defaults, summary judgments, JMOLs, etc.)

20


b. When a claimant loses on the merits: i. the claimant had an opportunity to get to the merits of

the case. ii. claim preclusion in this context is called “bar.” iii. claimant is barred from reasserting lost claims.

c. Only judgments that are not considered on the merits: i. lack of jurisdiction ii. improper venue iii. nonjoinder iv. misjoinder of parties.

4. Exclusions to Claim Preclusion a. Courts apply exceptions to the doctrine of claim preclusion

when it is just to do so such as when: i. Agreement of parties ii. Court holds that claim splitting is appropriate iii. Restricted jurisdiction of first court iv. Recurrent wrongs v. Extraordinary reasons

b. Issue Preclusion A. General: a party is precluded from raising an issue which was

1. the same issue litigated and determined in a prior case, (Cromwell) 2. was essential to the judgement in the prior case, AND (Rios) 3. the prior case was between the same parties.

B. Essential To The Judgment 1. Could the party against whom preclusion is being sought have appealed

a judgment from the first case? 2. Was the holding on that issue contained in a valid, final judgments on the

merits? C. Against Whom

1. Preclusion may be asserted against parties who have had their day in court (Hardy)

D. By Whom 1. Sword

a. Case 1 Plaintiff Against NEW Defendant: No (Hardy) b. NEW Plaintiff Against Case 1 Defendant: Yes, in some cases

(Parklane) 2. Shield

a. Case 1 Defendant Against NEW Plaintiff: No (Due Process/dayincourt)

21


b. NEW Defendant Against Case 1 Plaintiff: Yes (Blonder) c. Which Court

A. State/State: if the first state’s judgment was rendered with proper personal jurisdiction, then it is entitled to full faith and credit in another state under the Constitution.

B. State/Federal: the federal court should give the state court judgment the same preclusive effect that the state court would give it in a subsequent case brought in state court. 28 U.S.C. Sec. 1738

1. Minority view—federal court can give more preclusive effect than the state court would give the judgment.

C. Federal/State: State court should give the federal court judgment the same preclusive effect that the federal court would give it. If the federal case was based on diversity, the state court in suit 2 should look to the preclusion law of the state in which the federal court in suit 1 sits.

D. Federal/Federal – For federal questions, federal common law applies. For diversity cases, Restatement says federal common law applies, but some courts will apply law of the state in which the first court sits.

22

civil procedure outline - blogs.law.gonzaga.edu · 2012 fall civil procedure williams civil...

Documents