final civil procedure outline[1]

8/9/2019 Final Civil Procedure Outline[1]

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CIVIL PROCEDURE OUTLINEFALL 2006

3 Levels of Analysis in Civ. Pro.:(1) Social/Economic/Political Context, (2) General Principles, (3) Rules

Structuring of System:

Federal: Fed. District Courts Ct. of Appeals US S. Ct.(each state) (regional) cert

State: Small Claims/Dist. Cts./Cir. Ct. Int. Ct. App. Haw. S. Ct. cert

State System:Trial Courts: Court of original jurisdiction (where you file claims)

Circuit Court main trial court court of general subject matter jurisdiction

District Court up to $20,000, quick, appealable and often no attorneys

Small Claims Court no right of appeal, and usually no attorneys rough and tough justice.

Appeals from HI State Trial Courts go to HI S. Ct.

If important enough, the Supreme Court will take it If it doesnt want to hear it ICA Intermediate Ct. Ap.

And, if party doesnt like ICAs decision, can file a writ of certiorari for S. Ct. to hear case

If it is an important federal issue can apply to the US Supreme Court with a writ of certiorariif dont like the decision of the Hawaii Supreme Court.

Federal System:

District Courts in each state (sometimes more than one.)

Regional Court of Appeals jurisdiction over several states (13 total districts)

Apply for a writ of certiorari to the US Supreme Court final authority for all decisions

Federal Court

Limited jurisdiction

Supposedly more neutral

Judges appointed for life

Smaller case loads speedier trials

More broad procedurally

State Court

Often times more convenient

Judge and jury may be more sympathetic tothe

Often will be more familiar to you

FRCP RULE 11 [FRIVOLOUS FILINGS]

Stop, think, investigate, researchSTIR

All papers presented to the court must be formed after reasonable inquiry, (1) must not be forany improper purpose, (2) must be warranted by existing law or by nonfrivolous argumentfor an extension, modification or reversal of law, (3) must have evidentiary support or willlikely have evidentiary support after discovery and (4) denials must be warranted byevidence or reasonably based on lack of information or belief.

If found to be in violation, Court MAY impose sanctions.

Make sure to skim through the cases! Answer the call of the question, it should tell you how to format the answer.

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Purpose to deter frivolous filings not to shift fees or to punish.

History before Rule 11 never used because had to prove an attorney acted in evil state ofmind and there had to be evidence of subjective bad faith. (1938-1993)

Rule 11 then changed after 1993 too harsh court SHALL impose sanctions.

Now Rule 11 Court MAY impose sanctions if lawyer found to be in violation.

Rule 11(a): Attorney (or party, if no counsel) must sign form.

Rule 11(b): Signer is certifying whatever is being signed is formed after a reasonable inquiry (orif there isnt enough time, there will be a reasonable inquiry performed by looking at the facts)

You can also argue that the common law should be changed or if the S. Ct. got it wrongo You can look at dissenting opinions, to minority opinions, to law review articles, or

consultation w/other attnys to see if you can argue that the law should be changed

b(3 & 4): Certifying that the allegations either have or are likely to have evidentiary supporto If you sign something but later learn that the filing is no longer supported by facts of

law, youre okay if you dont do anything, but if you later advocate, then youreliable!

Rule 11(c): The ct. is not obligated to bring impose sanctions (sanctions must be appropriate,and do not have to be monetary)

Law firms, parties, non-singing opposing attny can be held accountable for Rule 11 sanctionsif they are responsible for the violation

Rule 11 is initiated by bringing the Rule 11 motion to the attn of opposing counsel. Theyhave 21 days to amend it (safe harbor provision!), correct it or withdraw it

o The recv attny can always amend under Rule 15 as a matter of course

o If recv attny chooses to do nothing, sending party can file motion w/ct.

o The Ct. can raise a Rule 11 motion at any time before the settlement of the case

Purpose of sanction: pg. 34; its a deterrent, not a punishment. The principle is deterrenceeither by that same attny or by others; compensation is not the function of the rule

Rule 11(d): This does not apply to discovery; discovery has own sanctions

Bridget v. Diesel Services:

Attorney brought for rule 11 violations because opposing counsel failed to exhaust otherremedies. Didnt intend to do anything wrongwas careless. Judge rules not to imposesanctions because the action has been deterred. (also didnt want to chill Title VII)

Business Guides v. Chromatic Communications: sues for copyright infringement because implants seeds into its guides to see if anyone copied any entries. retracts 3/10 of the seedsand the ct.s law clerk checks and finds that 9/10 of the seeds are correct. finds out the reason

for the mistake that caused a discrepancy in seeds that were wrong, and magistrate accepts thatreason. However, magistrate sanctioned both and attnys because even if at the time the attysdidnt have time to do full research, once they recd notice from the law clerk, they didnt doanything and said that a defense of coincidence, made at oral arguments and sanctionablebecause of the later advocating part of Rule 11(b)(3 & 4).

Christian v. Mattel: hires Hicks as attny to represent her in a copyright infringement case. makes dolls that she contends were infringed on by Mattel. In meeting, Mattel wants to show


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Hicks evidence that the doll in question was made by Mattel 6 yrs. before s doll was created.Hicks rejects offer and throws doll across room. Hicks declined to file claim. Hicks sanctioned.

However, there must be a signature and filing for there to be Rule 11 sanctions, unless itqualifies under the later advocating argument under Rule 11(b)(3 & 4).

What was the problem w/the District Ct.s fashioning of the sanction?o The sanctions were mostly on behavior; and some of that, was in the discovery phase

o Rule 11(d) does not cover Discovery; perhaps reprehensible, but the ct. says that it

looks like the d. ct. was peevd by the attny and threw in $500k

The Ninth Cir. says that hicks isnt going to get away scott free because in addition to Rule11, the ct. can impose sanctions under 29 USC 1927 and the courts inherent authority!

o The ct. has the authority to regulate its processes to control everyone that comes

before ito Subjective bad faith: When you can tell in the head and heart of the actor that theres

bad faith; again, a very hard standard to prove, but in this instance, the ct. seems to be

hinting that the ct.s inherent authority can be used

PLEADINGS: FRCP RULE 8 [SHORT AND PLAIN PLEADINGS]

General Rules of Pleading (and tension w/Rule 11)

FRCP Rule 8. General Rules of Pleading

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether anoriginal/counter/cross-/third-party claim, shall(1) Have a short & plain statement of the grounds upon which the courts jurisdiction

depends, unless the court already has jurisdiction(2) A short & plain statement of the claim showing that the pleader is entitled to relief

Section 1: Applies to the jurisdiction (Federal jurisdiction: citizens of diff. states w/amountalleges over $75k, or a question of Federal law)

Section 2: Short & plain statement of claim showing pleaders entitled to reliefo No requirement that the facts supporting claim need to be in complaint

o Form 9 (pg. 172) is a sufficient complaint

If you follow this form, you have filed a sufficient complaint

Claim missing: why or how the defendant is negligent; therefore, its notnecessary to have a facts supporting claim to show negligence (noticepleading: just enough to give notice)

Tension Between Rule 8(a) Filings and Rule 11:

The Federal Courts are trying to help the ease to get into Federal Court, but, problem:frivolousness of cases arise. So, the response is RULE 11. But, to prevent frivolous cases,the lawyer needs to be more attentive to research

You should have the facts at your disposal, but you may not want to plead it at the start. Ifyou do state all the facts, you give away your legal theory and may be confined to it whenlater disclosure reveals evidence that contradicts or weakens the theory.


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FRCP 8 was adopted in 1933 to allow more access to Federal courts. Context: the GreatDepression. There was a great gap b/ the wealthy and not wealthy. Public sense that richindividuals and institutions control system. No access to redress process.

FRCP 11 adopted in 1983 to limit frivolous actions. Context was the 1980s: post-warsuperpower; economic prosperity; perceptions of explosive increases in litigation

Bell v. Novick Transfer: This case was removed from State Court to Federal Court

o There must be a federal court issue that can remove the case

o But, theres one exception: If a claim couldhave been filed in the Federal court

(diversity of citizenship, issue of fed. law) but chooses State court, the canremove the case to the Federal Court

According to court, the complaint is adequate, since all you need is a short & plain statementshowing pleader is entitled to relief

JURISDICTION: INTRODUCTION

Federal Court Jurisdiction Outline:

SMJ Personal Diversity FQ Notice Power 1332 1. U.S.C. 1331 (narrow) 1. FRCP 4 1. LA Statute ( 634-35)

2. Art III 2 (broad) 2. DP a. Transaction of buss.w/in State

b. Comm. of tortuous act w/in State

2. DP a. s contact w/State

b. Convenience

For a court to have jurisdiction, must fulfill subject matter and personal jurisdiction.

Subject matter is basically whether you go federal or state court. The hard part is havingpersonal jurisdiction over someone.

PERSONAL JURISDICTION [POWER]: PENNOYER v. NEFF

Traditional Basis for Personal Jurisdiction

Facts: A basic judgment in favor of Mitchell (from prior case, Mitchell v. Neff) where Neff

served by publication and fails to show. Default judgment entered for Mitchell. Neff acquiresland, Mitchell has a writ of execution entered, executing the final judgment. Sheriff gets Neffsland to fulfill the writ, sells land to Pennoyer (funds to Mitchell). Neff reappears 9 yrs later andsues Pennoyer [collateral attack1] in Fed. Ct. Neff argues that the seizure of property was invalidbecause of improper notice, and therefore, the ct. of OR lacked jurisdiction over Neff.

1 Suit to determine whether the first suit was valid; collateral attacks are allowed because due process is aConstitutional mandatevery important! Can only file a collateral attack for issues w/due process


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Social/Economic/Political Background:

Taking place during industrialization. Also reconstruction period following Civil War;Southern States were trying to rebuild. 1876 disputed election ended in a stale mate.Congress could not resolve conflict, so there was a compromise: the South said the North canhave their president if the North pulls troops from the South. It was in this setting that S. Ct.

began looking at the Due Process Clause. S. Ct. sends message to Southern States that theywont interfere with what theyre doing, essentially giving Southern States power w/in theirselves, thereby mitigating some of the angers of the Southern States

RuleTraditional Basis for Personal Jurisdiction [Pennoyer Rule DP] :(1) Consent, (2) Physical Presence, (3) Domicile , (4) Property Attached (when suit is filed)

Animating principle of this rule is Due Process: the State possess exclusive jurisdiction overpersons or property w/in the territory; source from the 14th Amendment

Philosophical/Jurisprudential Concepts: State Sovereignty:

Every State possesses exclusive jurisdiction & sovereignty over persons & property w/in its

territory No State can exert jurisdiction or authority over persons or property in other States

Connection to Due Process:

14th amendment due process requires that state have both subject matter and personaljurisdiction to give a binding rule over a person. It would be a constitutional violation by thecourt if it didnt have subject matter and personal jurisdiction.

However, Constitution says no State shall deprive any personpeople/individuals getprotection, not States.

Shortfalling of Rules:

Many multi state problems (marriages and corporationsunder Pennoyer if one spouseleaves state, court couldnt grant divorce because there was no jurisdiction. Likewisecitizens might not be able to sue a corporation in another state.) In response to short fallings,the court makes exceptions for marriages and out of state partnerships.

People can still get out of trouble by leaving state to avoid being served etc.

PERSONAL JURISDICTION [POWER]: PAWLOSKI v. HESS

Expanding State Power for Personal Jurisdiction

Facts: -Mass. resident and -non-Mass. resident get into a car accident; sues to recoverdamages for personal injuries under the claim that negligently and wantonly drove a motor

vehicle on a public highway in Mass. appeared for purposes of contesting jurisdiction andmoved to dismiss on ground that the service of process would deprive him of his property w/outdue process in violation of the 14th Amendment. Court wants to grant state court jurisdictionalreach, but tries to fit under the framework of Pennoyer.

Trying to Fit Within the Framework of Pennoyer:

The ct. needs a category to fit under the Pennoyer rule. The consent is implied!


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The Power to Exclude:

Ct. cites Kane v. New Jersey (which stated that the State has the power to bar people fromcoming into the state w/out signing a K where if a person causes damages, the State canappoint service) to stop Hess at its borders. The problem/contradiction is that this violatesthe Privileges & Immunities Clause of the Constitution (Section II Art. IV), which safeguards

individual citizens rights to pass through other states. So theres no legal justification! But,the ct. relies on the unfairness that would arise if can take advantage of States highwaysthen get away without paying for damages form an accident just because s a non-resident.

Quid Pro Quo/Reciprocity:

Mass. statute stated that s conduct was the operation of a motor vehicle on a Mass.highway, and by doing this, he recd the benefits of the rights/privileges of using a Mass.highway (by getting the protection of Mass. law, ability to sue in Mass. courts, policeassistance, ambulances). Therefore, by driving onto a Mass. State Highway, he acceptedthese benefits, even though did not implicitly agree to the Mass. statute, the ct. found itimplicit by his actions. Driving on a Mass. State Highway is a privilege!

Also a matter of convenience; injured party w/in the state, can bring in witnesses and theburden on not great because insurance could cover legal costs

Big Picture:

The Pennoyer Rule was not as easily applicable as interstate commerce increased. Thenotion of jurisdictional exclusivity falls on the wayside after Hess. Multiple states can havejurisdiction now. (break down of major principals of Pennoyer) In Pennoyer, had to bewithin State. Now, only had to use the benefits of the State, but doesnt necessarily have tobe in the State and the State can still have jurisdiction. To achieve a result we all feel isappropriate (holding accountable for an injury he might cause in the stateidea ofreciprocity), the court has torched the rules of Pennoyer.

PERSONAL JURISDICTION [POWER]: INTL SHOE v. WASHINGTON

Due Process Requires Looking at Convenience and Reciprocity (Expand State PJ)

Facts: is a corporation (corp. is a legal fiction/creation by the State). had salesmen based inWA and technically the sale would be made in STL and would be shipped free-on-board to WA.This was set up so the corp. would not do business in WA; also evades the Pennoyer rule ofphysical presence w/in the state (for PJ purposes). Commissioner served delinquency notice,then served notice by mail to corp. There was no formal service of process in WA.

Rule:

Jurisdiction no longer strictly based on presence or consent. Due Process satisfied if has(1) Minimum contacts w/ the state such that the maintenance of the suit does not offend(2) Traditional notions of fair play and substantial justice.

Minimum contacts:

The need only make one contact w/someone in the State

There is nothing said about whether the has to be in the State


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Traditional notions of fair play & substantial justice:

Ct. looks at convenience and reciprocity:

Convenience: Look at convenience of on trial away from home and also for the

Reciprocity: If the corp. enjoys the benefits of the state while conducting business, it has thereciprocal obligation to the State to respond to the suit

Principle:

Breaking down Pennoyer rule that Due Process means state sovereignty. Due Process Clauseprotects person from the overreaching power of the State, but in doing so, the Intl Shoestandards empowers the State ct. judges to increase state ct. reach over people. ExpandedState ct. jurisdictional reach.

PERSONAL JURISDICTION [POWER]: WWVW v. WOODSON

Due Process Requires Looking at Convenience and Reciprocity (Contract State PJ)

Facts: purchased a new car from Seaway VW in NY. While moving to AZ, a car strikes

theirs in Okla. causing a fire that severely burned s, so they bring a products-liability actionagainst s (including NY-based WWVW & Seaway and Audi/National Importer). wants thecase in federal court so they move to dismiss regional distributor and retail dealer (Seaway andWW) citing lack of personal jurisdiction.

After motion for dismissal refused, s bring writ of mandamus (separate action againstjudge allowed when the claim is that the court is exceeding its jurisdiction). Ct. finds lack ofjurisdiction based on the fact that the contact with the forum state was not purposeful contact.


Justice White was a conservative and was concerned about the economy and about businessand law impeding businesses. 1980 brought the Cold War, a US economy in recession and

interest rates for mortgages through the roof.

Rule [Whites Stream of Commerce Theory (SOC)]:

A. s Contacts with State/(StateSovereignty)

B. Convenience

Minimum Contacts Rule: injected product(1) purposefully into the SOC and (2) hasexpectation (knowledge) of consumption thatthe product in the forum state

1. Primary Factor: Inconvenience to 2. Forums States interest in adjudicating3. Convenience to

4. General Efficiency

Court went back to Pennoyer and Hess andfound #s 1-3

Giving meaning to these factors that are truly significant

Minimum contacts: Reciprocity/Quid Pro Quo must be found to go on to the next tiero Quid Pro Quo From Intl Shoe (majority will narrow the quid pro quo) Now

requires that contact be Purposefully to give clear notice to o Even indirect conduct through a chain of distribution is enough.

This is a two step analysis! If theres enough reciprocity, then you ask if theres convenience


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Jurisprudential Concepts:

Affirms International Shoe (due process functions to protect from undue burdens) and alsoPennoyer (and so states dont reach beyond their territorial boundaries as coequalsovereigns).

White uses wrong concept of due process for state sovereignty. State sovereignty guidesstate vs. state, and due process guides individuals vs. state.

Idea of giving noticepredictability, that the can be haled into court of the forum stateo This allows to conduct his actions accordinglyif he doesnt want to go into the

state, or he can hire insurance and pass on the costs to the consumerso Notice to ahead of time that he can be haled into forum state, and take precaution

Brennan Dissent:

Brennan wants to keep broad jurisdictional reach of the State courts (concerned about theinjured )formulation changes in Asahi

Brennans test: Enough to satisfy tier A (s Contacts with State) w/out the knowledge,

intent, or expectation that products consumed in forum state

Lawyering Strategy:

s had no complete diversity of citizenship (Audi-Germany, VW-DTW, WWVW-NY, andSeaway-NY), preventing s from removing case to Fed. Ct. in Tulsa (less partial jury pool).So s Audi & VW want knock out NY-based s to move case to Fed. Ct. Thus, strategy fors is that they need a strict personal jurisdiction doctrine, and therefore ask the ct. to put apurposeful element into the minimum contacts rule.

PERSONAL JURISDICTION [POWER]: ASAHI METALS v. SUPERIOR CT.

Due Process Now + Purposeful Direction (but, Split S. Ct. Ruling)

Facts: Person injures himself riding on Honda bike, and wife killed. Files products liabilityaction naming Cheng Shin Rubber as . Cheng Shin files cross-complaint seekingindemnification from Asashi Metals, manufacturer of tube valve assembly. Asahi sells parts toCheng Shin, Cheng Shin sells roughly 20% to Calif. Chen Shin says that Asahi knew that itsassemblies would end up in Calif (significant b/c then Asahi would be subject to PJ of Calif. ct.according to Whites SOC). Asashi moved to dismiss for lack of PJ. Tr. Ct. of Calif. rules thatCalif. does have jurisdiction, Asahi files writ of mandamus.

Rule (OConnor, Powell, Rehnquist, Scalia):

OConnors Rule: Whites Rule + (Substantial Connection w/Forum State throughPurposeful Direction)Contracts start jurisdiction!

Purposeful direction is:(1) Designing the product for the market in the Forum State(2) Advertising in the Forum State(3) Establishing channels for providing regular advice to consumers in the Forum State(4) Marketing the product through a distributor who has agreed to serve as the sales agent in

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If minimum contacts found to be met, still need to look at Convenience tier of Due Process.IF inconvenience too high, to exert jurisdiction would be unreasonable (burden on the toohigh and its 2 international companies so state interest and interests are low). (unanimousdecision). Look at (1) burden on (most important), (2) interest of the forum state, and (3)

s interests.

Dissent (Brennan, White, Marshall, Blackmun):

Brennan shifts his position to Whites position here to create a 4-4 split in the S. Ct.heobjects to a ruling he vehemently objected to in Intl Shoe! Brennan characterizesOConnors purposeful direction test as a retreat from WWVW.

How to Argue the SOC Theory:

If you want to use OConnors test (good for s), argue that the trend of theCourt is shifting towards narrowing PJ. Note: 3 supporters of Brennans/Whites formulationhave been replaced (Souter, Thomas, and Breyer). Only 1 Justice in OConnors camp is

replaced (Powell replaced by Kennedy). Only 1 Justice of the OConnor camp is still there:Scalia. Overall composition of the court is moving to the right!

If you want to use the more liberal formulation (good for s), point out that thevote in Asahi was a tie, and WWVW has not been overruled yet.

PERSONAL JURISDICTION [POWER]: FRCP RULE (4)(k)(1)(A) & 12(b)(2)

FRCP (4)(k)(1)(A): Service of a summons of filing a waiver of service is effective to establishjurisdiction over the person of a who could besubjected to the jurisdiction of a ct. of generaljurisdiction in the state in which the district ct. is located

Fed. Ct. can assert personal jurisdiction if proper service is made if the State ct. can assert

personal jurisdiction Then takes us to the Long Arm Statute and Due Process

Pretend youre the state court, taking us right back to the state court analysis

FRCP 12(b)(2): Dismiss for lack of personal jurisdiction

Defenses can be made by motion right at outset: Lack of personal jurisdiction over a person

Rule 12(b)(2) allows a motion to dismiss for lack of personal jurisdiction

Once a person files a motion to dismiss under Rule 12(b)(2), theres two ways can proceedto defeat the motion:(1) Can have a full evidentiary hearing to defeat this motion ( has to prove by a

preponderance of evidence that the ct. has jurisdiction)(2) More common approach: simply responds by affidavits ( has to show aprima facie

case, where the needs to show that theres evidence, e.g., affidavits, documents, thatthe case should go to trial)

Even if the ct. says there is PJ, the still has to prove the evidence at trial

Therefore, strategic significance of defeating s motion to dismiss; since most cases dontgo to trial. If for , you want to try to win it here on the motion to dismiss!


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PERSONAL JURISDICTION [POWER]: BURGER KING v. RUDZEWICZ

Even if case initiated by Fed. Ct., the PJ Analysis is the SAME! (Look to K)

Facts: with partner applied to BK for a franchise in DTW. Even before final agreementssigned w/BK, parties began to disagree over issues. Signing final agreements, personallyobligated himself to $1M payments. When rent payments fell behind, BK first negotiated, butthen sued in Fed. D. Ct. in FL, invoking both diversity and trademark jurisdiction. challengedthe PJ claim. [Not a mass manufactured products case, so no SOC analysis]

Rule:

To figure out minimum contacts for K cases look at the terms of the K where it wasnegotiated and where the results and activities were. Then look to convenience.

Recognizes two tiers of due process and but takes due process two tiers (minimum contacts

and convenience) fused into one. Convenience factors can sometimes justify jurisdictionwhen there is lesser showing of minimum contacts then would otherwise be required. Dontneed to first meet minimum contacts to look at convenience. Look at the two factors togetherto decide whether or not due process is met.


Brennans thinking about the future, where an individual needs protection and where theremight not be significant contacts (so even if min. contacts isnt met, you still haveconvenience)

Giving the golden nuggets so people can argue this position later!

PERSONAL JURISDICTION [POWER]: ZIPPO v. ZIPPO DOT COMInternet Jurisdiction: Look at three types of websites for analysis

Facts: Manufacturer of Zippy tobacco lighters brought action alleging trademark dilution,infringement and false designation under the Lanham Act against computer news service ZippoDot Com, located in CA. Dot Coms websites contain info about the company, ads, and anapplication for its news service. Dot Coms contacts with PA subscribers occurred exclusivelyover the internet, w/no offices, employees or agents in PA. Dot Com also entered intoagreements w/7 PA ISPs to permit subscribers to access Dot Coms news service. Dot Commoved to dismiss for lack of PJ under Rule 12(b)(2).

Rule: Due process for minimum contacts analysis for internet sites look at the type of site:

(1) Business site: Knowing and repeated transmissions of computer files over the internet,pursuant through a K w/individuals

(2) Interactive site: Complicated setting where the user can exchange info w/host computer(3) Passive site: Anyone can just jump on the website, no interactivity

Ct. says Zippo fits a business site part of the spectrum and therefore satisfies thepurposefulness and reciprocity of minimum contacts


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What about Individual Consumers?

In Pres-Kap, s would only log on to comp. located in FL and mail payments to FL.

However, the Ct. said FL cts. had no jurisdiction. Ct. is saying to be careful when the is anindividual and its contacts are through the individual.

If its an individual consumer, its too big a burden. So something more, a higher degree ofpurposefulness and reciprocity is required!

PERSONAL JURISDICTION [POWER]: HAWAII LONG ARM STATUTE

HRS 634-35 and -36

Single-contact Statute (only one contact is needed)

Acts:(1) Transaction of business w/in the State

(2) Commission of a tortuous act w/in the State If the court has jurisdiction, then you serve process under HRS 634-36 (lifted from Hess:

service by certified mail w/return receipt)

There must be affidavit to the ct. to show that you really did everything you could beforeservice by publication

Look at due process after LA!

PERSONAL JURISDICTION [POWER]: SHAW v. NORTH AMERICAN TITLE

Hawaii PJ: Long Arm Statute Analysis is the good law from this case

Facts: HI resident in process of refinancing Calif. property. Asks bank to mail checks payableto him so he can use it as leverage in getting better credit rating Bank contracts with . waitsa year and sends checks to Ohio where they are rejected because had s bank acct. closed andfailed to tell . Upon being told, reissues checks but sends them directly to creditors and takesaway leverage for who is trying to refinance his Kauai home. files motion to dismiss forlack of personal jurisdiction FRCP 12(b)(2).

Rule [Good Law Part]:

HRS 634-35 HI Long Arm Statue: personal jurisdiction can be exerted if the (1)transacted business within the state or (2) committed a tortuous act within the state.(1) Narrow view of business transaction. Letters and faxes not enough to constitute to

transacting business(2) Expansive view of tortuous act. Tort occurs when and where the actual injury occurs.

Not about when acts but looking at the and when injured and even if tort happenedin different state, if injury occurred in state = enough.

Count Inconsistencies [Bad Law Part]:

Ct. finds there is sufficient contacts, but the ct. doesnt articulate the convenience analysis


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Uses Calder Effects Test [however, this is not related to the Long Arm Statute!!!] for dueprocess. The Effects Test says that theres min. contacts if has no contacts with forumstate but communicates with the in the forum state w/the intention to defame. However,the Ct. says that the Effects Test would apply even outside the intentional torts setting (ct.really overstepping bounds here). Effects Test should be isolated to intentional torts

Jurisprudential concept:

Occurring at a time when Hawaii (both laws and cts.) were inhospitable to outsidebusinesses, which might have played a role in narrowing view of buss. transactions

PERSONAL JURISDICTION [NOTICE]: FRCP RULE 4

Waiver of Service of Process

FRCP Rule 4(c)(2): Who can serve? Any person not a party, 18+ can serve process

FRCP Rule 4(d): Waiver of service (stick and carrot). [In HI Follow HRS 634-36]

The idea here is to make the whole system more efficient (1) Waiving service of process means you dont have to go through whole service of process

(2) Stick (of the Stick & Carrot): Duty to avoid the cost of serving because the would incurthe cost of service as per d(2) [unless you can show good cause]

o You send this notice of transmission by first class mailits very easy

(3) Carrot (of the Stick & Carrot): If you serve the complaint formally, has 20 days toanswer; but if you waive service of process without requiring service of process, has 60days (get 40 extra days)

FRCP Rule 4(e): This is where the action is if you have to serve process formally.

(1) Where theres no waiver, you can serve by the laws of the State in which the Fed. ct. sits

(2) You can use the Federal provision for service of process3 methods of service ofprocess under Federal Rule

o Server must be careful that the req. are met to serve s at place of residence

o Service on an agent authorized to receive service of process by appointment or by law

(language in response to Hess)

FRCP Rule 4(m)

cannot keep the notice in pocket for four months (in Fed. Ct.) or six months (in State Ct.)

FRCP Rule 4(k)

Marries power and notice together: Service of summons/waiver and notice if done properlyestablishes jurisdiction of the person (as long as it comports w/State jurisdictional analysis)

Note: If in Federal Court, you may use the procedure of the state court for power and for notice so use HRS 634-36. (4(e)(1)(a)). And if is in another state you can choose which state statuesyou want to use.

PERSONAL JURS. [NOTICE]: MALLANE v. CENTRAL HANOVER BANK


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Use the method that is reasonably calculated

Facts:

Mullane appointed to represent beneficiaries of trust. Mullane & Vaughn suing CentralHanover Bank to settle the beneficiaries accounts, which would wipe out any claims. The

beneficiaries themselves have a direct stake in the trust. We know that the NY Ct. wouldhave power over the beneficiaries because there is purposeful contacts of the beneficiarieswith the forum state (e.g., reciprocity of benefits from investing in a NY trust). However, theNY Banking Statute authorizes notice by service by publication.

Cost-Benefit Analysis:

If the Ct. creates too stringent a rule for notice, the service of process would become tooexpensive for the trust fund. Likewise, beneficiaries have the right to know what ishappening with their property and the opportunity to be heard; right to have notice and giventhe chance to contest before deprived of any life liberty or property by the state (DP!).

What Due Process Requires: The Ct. says that Due Process requires:

o That the adjudication must be preceded before the deprivation

o There must be an opportunity for notice for to contest

Rule:

Notice must be reasonably calculated under all circumstances to apprise the parties

Reasonableness of notice constitutional validity of notice: 1) reasonably certain to informthose affected or 2) the form chosen is not substantially less likely to bring home notice thanother of the feasible and customary substitutes. (in this case, mail was determined to bereasonable)

o Persons Missing or Unknown: Court approves publication to this cat. of peoplebecause it would be futile to put them on notice (cost to much to send out a PI to findthe names and addresses to track these people downnot economically feasible)

o Beneficiaries whose interests are conjectural or future (e.g., beneficiaries of

beneficiaries). Cost benefit analysis shows to be too burdensomeo Present beneficiaries of known address: Publication is not sufficient for Due Process

purposes because publication is not reasonably calculated under all the circumstancesto apprise the parties of their rights and give an opportunity to be heard. A mailingwould be a more effective meansmass mailing to each of the beneficiaries wouldnot be too much of a burden

Note: Recent Case: Jones v. Flowers

Embraces Mullane. However, takes an additional step:o Assuming the takes reasonable steps to give notice, Jones says but if the finds

out that this does not actually give notice and the is easily ascertainable and hasan address known, the must then take additional steps to actually serve the process

SMJ [FEDERAL QUESTION]: BACKGROUND


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FRCP Rule 11(h)(3), USC 1331, and Const. Art III 2

Art III 2: The judicial power [of the US] shall extend to all cases arising under the lawsof the U.S. [Speaks to the judicial power of the US]

28 U.S.C. 1331 FQ: The Fed. Dist. Ct. shall have original jurisdiction or all civil actionsarising under the laws of the U.S. [Limitation to the Fed. D. Cts.]

FRCP Rule 12(h)(3): The issue of SMJ can be raised whenever (and also by the cts.)

If youre the , you can get an early determination from the ct. to dismiss via Rule 12(b)

If youre the , you can get an early determination from the ct. to dismiss via Rule 12(d)

SMJ [FEDERAL QUESTION]: LOUISVILLE RR v. MOTTLEY

The Mottley Rule or the Well Pleaded Complaint

Facts: Mottleys recv lifetime railroad passes as a result of a settlement with R.R. Years later,R.R.s were bribing public officials w/free passes, so Congress outlawed them. Thus, theMottleys filed suit in Fed. Ct. w/FQ as the basis of their SMJ. FQ wasnt an issue in Tr. Ct. andMottleys win. R.R. appeals, and S. Ct. says theyll consider the finding of jurisdiction of lowerct. (not saying theyll consider the case on its merits).

RuleMottley Rule/Well Pleaded Complaint Rule:

A suit arises under the Constitution and laws of the US only when s statement of his ownclaim shows that it is based upon the laws of the Constitution.

Big Picture:

The basis for Fed. claim cannot be insubstantial or small because Fed. cases should be aboutbig things. The Ct. acknowledges that Fed. law will come up, but wants the State cts. toresolve it. Narrow the interpretation of arising under for fed. district ct. because doesntwant to open the flood gates. The same arising under also bars those cases that have aFederal ingredient (e.g., federal land grants, checks) because the real controversy is not aboutfederal law

The S. Ct.s Broad Arising Under Interpretation:

US S. Ct. knows that the D. Ct. lacked jurisdiction, so how is it that the S. Ct. has jurisdictionto hear the appeal? Because the S. Ct. can interpret arising under in Constitution Art. III 2 more broader than the arising under in 28 USC 1331. The S. Ct. interpreted the 28

USC 1331 language very narrowly, limiting the Fed. District Ct. As to Art III 2, as long as theres some itty-bitty element of Federal law involved, thats

enough to give the S. Ct. FQ jurisdiction

This way, they can pick and choose the cases they wanted based on writ of certiorari andwould not be worried about opening the floodgates to litigation

SMJ [DIVERSITY OF CITIZENSHIP]: BACKGROUND


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28 USC 1332

Subsection A:

US S. Ct. can have any diversity of citizenship, but D. Ct. level needs complete diversity

$75k is simply an allegation as to amt.

(1) Citizens of diff. states: Need to be citizens of diff. states(2) US Citizen whose a citizen of a State vs. a citizen of a foreign state(3) citizens of diff. States and in which citizens or subjects of a foreign state are addl parties(4) a foreign state as and citizens of a State or of diff. States

Subsection B:

If alleges $75k and recv less than $75k, then needs to pay

Subsection C:

Wherecorp. incorporated in the State and principal place of business counts fordiversity

Therefore, corps. can have citizenships in 2 diff. states Tests: Wheres the Corporate Nerve Center and where is the Corporations main place ofbuss. activities

Must argue both sides to make the best argument!

Note: Partnerships/Assn are not considered corp.; therefore, citizen of each person inthat partnership/assn is relevant. If its a limited partnership, the citizen of the limitedpartnership also matter!

Note:

FRCP Rule 12(h)(3) says wheneverthe ct. lacks SMJ jurisdiction, the court can dismiss

SUBJECT MATTER JURISDICTION: CHALLENGING THE CT.S SMJ

FRPC Rule 12(b)(1) and 12(h)(3)

FRCP Rule 12(b)(1): Dismiss for lack of subject matter jurisdiction, which can take place at anytime according to FRCP Rule 12(h)(3).

SMJ [DIVERSITY OF CITIZENSHIP]: MAS v. PERRY

To change domiciliary, need different residence + intent to live there

Facts: s were grad. assistants at LSU (in LA) for 1 yr. 9 months. Shortly after being married,

they returned to LSU to resume grad. work duties. They rent an apt. from , a LA citizen. ssued on discovery that had been watching them via 2-way mirrors during their marriage. made an oral motion to dismiss for lack of jurisdiction, claiming s failed to prove diversity ofcitizenship among the parties w/respect to Mrs. Mas.

Rule:

Citizenship is measure at the time of filing the complaint; changes later dont count.Definition of a citizen:


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Domicile (definition of citizenship is domicile): Two components(1) Where the parties resides (residence)(2) + the parties intent to have this be their permanent place of residency (intent to remain)

In order to change Domicile:(1) Must take up a different residence

(2) + change intent to live there Until you make this change, you remain a domiciliary of your former residence

SMJ [DIVERSITY OF CITIZENSHIP]: MACHERAS v. CENTER ART GALL.

Corp. has 2 principal places of business and DOE s in Fed. Ct. when Case Removed

Facts: filed complaint against in Fed. Ct. on basis of diversity jurisdiction. Three reasonslisted by s to dismiss motion to dismiss for SMJ: (1) No amount in controversy listed; (2) sfailed to allege the principal place of business; (3) DOE s that would destroy diversity.

Rule:

Where corp. incorporated in the State and principal place of business counts for diversity

The presence of entering DOE s in a Fed. Ct. complaint does not automatically destroydiversity of citizenship because of fairness.

o Ct. doesnt want to restrict s to State courts: s would get too many options and the

s would be too restricted; s would have to file in State court and would not be ableto file in Fed. Ct. However, if wanted to file in Fed. court, then the could removeto Fed. Ct. Fairness issue.

o Court warns : If one of the s turns out to be named and that destroys diversity of

citizenship, then the court lacks diversity of citizenship! And, if its after the statute

of limitations, then its too bad.

SUPPLEMENTAL JURISDICTION:Rule 18(a) and 28 USC 1367

Ancillary Jurisdiction

FQ/Diversity

z tp

Pendant Jurisdiction

Fed Q

State Law

Ancillary jurisdiction: If court has jurisdiction over the original claim, the federal court canexercise jurisdiction over counterclaims, cross claims and 3 party claims ancillary to theoriginal actions but which lack necessary federal elements on its own.

Pendant jurisdiction: If there is one federal claim and one state claim, one and one withclear federal question federal court can hear state claim too if can show that the state claimis pendant to the federal claim.

Rule 18(a):


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If one party has one claim, then the party may join as many claims as necessary

The rule does not authorize SMJ, so one must find SMJ in the issues

28 USC 1367(a):

Addresses the ct.s power to hear supplemental jurisdictional: Power of the district ct. to

have supplemental jurisdiction over all other claims that are so related to the claims in theaction within such original jurisdiction that they form part of the same case or controversyunder Article III of the US constitution

28 USC 1367(c):

Addresses the ct.s discretion to hear supplemental jurisdictional: ct. can refusesupplemental jurisdiction if (1) novel/complex state law issue; (2) state claim is the realaction; (3) all bona fide federal claims are tossed; (4) board catch all for exceptionalcircumstances for compelling reasons.

28 USC 1367(d):

After the date of dismissal from supplemental jurisdiction, party has 30 days to refile inState ct., even if the State of Limitations has expired

SUPPLEMENTAL JURISDICTION: JIN v. MINISTRY OF STATE

Look at Ct.s power and discretion!

Facts: s are entities related to the Chinese govt who are Falun Gong practitioners in the US.Chinese govt perceived Falun Gong as a threat to state security, stability & economic dev. anddecides to publish a series of negative articles about their practice in state-run newspapers aswell as limited-access news event where several Falun Gong practitioners set themselves on fire.Video distributed in US, s file suit under the RICO claim and join defamation to their RICO

claim. s moves to dismiss defamation claim pursuant to FRCP 12(b)(1) & 12(b)(6).

Rule:(1) Determine power: common nucleus of operative facts test (see if there is a common nucleus

of operative facts between the federal and state claim); doesnt matter if claims are linkedtogether. If yes, then:

(2) Apply discretion: Use 28 USC 1367. Ct. can refuse supplemental jurisdiction if (1)novel/complex state law issue; (2) state claim is the real action; (3) all bona fide federalclaims are tossed; (4) board catch all for exceptional circumstances for compelling reasons.

Jurisprudential Concept:

Ct. not worried about opening floodgates of litigation w/the power aspect because of thediscretion aspect.

CHANGING FORUMS: REMOVAL [28 USC 1441]

28 USC 1441(a):

Removal goes only one way: State Ct. Fed. Ct.

Removal can be by or s. This is important because all s MUST join in the removal


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o Cts. interpreted extra s as all s, making it more difficult for to remove

If there is a DOE , it doesnt necessarily mean that the case cannot be removed (however,DOE must later turn out to be a citizen of diversity!)

28 USC 1441(b):

When you have in State ct. a FQ Arising Under claim, even w/out complete diversity, thecase can be removed

Any other such action = diversity of citizenship. Removable only if none of the partiesjoined as s is a citizen of the state in which the action is brought

o The whole purpose of diversity jurisdiction is fairness to the out-of-state ; therefore,

the purpose of diversity wouldnt be served if a case was filed in CA state ct. and wasremoved to a HI State ct.!

28 USC 1446(a):

If you want to remove, just need to state grounds for removal. Once your fileremoval, it immediately gets removed (cts. not involved). This filing is pursuant to Rule 11sanctions; therefore, if you remove and theres no SMJ, you can get sanctioned.

28 USC 1446(b):

has 30 days to file removal after service of summons or otherwise [a time bomb]o The pleading does not need to be an amended complaint. It can be any other paper

that states that theres SMJ. This would start the 30-day clocko Also, if you give a copy of the complaint, but will serve properly later, the running

of the 30 days starts when the copy is given

28 USC 1446(c):

can file a motion for remand to get case back in State ct. Two strands for motion:(1) Defect in motion itself (e.g., petition filed too late, petition doesnt have all s)(2) Fed. ct. lacks SMJ

If the case is remanded, then as a general manner, entitled to attorneys fees, and cannotcontest the remand

28 USC 1447:

Motion to remand the case on the basis of any defect other than a lack of SMJ must be madew/in 30 days after the filing of the notice of removal under 1446 (a).

If at any time before final judgment, it appears that the district ct. lacks SMJ, the case shallbe remanded.

REMOVAL: CATERPILLAR v. LEWIS

Finality, efficiency, and economy of denying remand from removal

Facts: sues Caterpillar (based in DL, principle place of buss. in IL) and Whayne Supply Co.(KY Corp. w/principal place of buss. in KY). MA-based Insurance Co. intervened as a .Lewis enters into settlement agreement w/Caterpillar. Caterpillar, learning of this settlement,filed a notice of removal on the grounds of diversity of citizenship. objects to removal andmoved to remand b/c Liberty Mutual had yet to settle its claim against Whayne, which wouldhave defeated diversity of citizenship.


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Incorrect Lower Ct. Ruling:

Fed. District Ct. denies remand, but judge was wrong. clearly removed wrongfully, thecourt wrongfully denied the motion to remand

Rule: Even though the removal was wrong, there were overriding considerations: Finality,

efficiency, and economy

Even though SMJ did not exist at time of removal, there was SMJ at time of trial, which wasenough

SMJ is most important, grounded in due process (as per Pennoyer)

Bigger Picture:

There might be something going on w/the facts that more than meets the eye

This was an anomaly type of case, short of this, youd most likely be sanctioned

PROVISIONAL REMEDIES: INJUNCTIONS & TROs [Rule 65 & 28 USC 1291-2]

Orders by the court to have do/not do something. Rare, but important because they allowthe court to change the behavior of the .

Three types of provisional remedy (provisional: ct. issues an order pending final outcome ofthe casepending the final outcome on the merits)

(1) Preliminary injunction/TRO(2) Attachment: prejudgment attachment (e.g., Pennoyer) for purposes of acquiring

jurisdiction (also replevin falls into this category): which refers to the attachment ofpersonal property)

(3) Garnishment: where the gets the ct. to order the seize of s property which is held

in the hands of the 3rd person that is paid over to the

FRCP Rule 65:

TRO can be issued to the court without notice to the other side (can be issued ex parte)

TRO lasts 10 daygives other side time to dissolve TRO (esp. if no notice or hearing given)

Next stage preliminary injunction: the preliminary injunction practically the whole ballgameo The preliminary injunction hearing is like a mini-trial

o Under 65(a)(2), essentially what happens in the preliminary injunctions gets carried

forward to the trial. However, whatever happens on a preliminary injunction is itcase usually settles after that

What is the standard for the court to grant that provisional remedy?

o Standard for granting a TRO and a preliminary injunction is the same

28 USC 1291:

Determines that Ap. Ct. has jurisdiction over all final decisions of a case (must be no moreclaims and no more parties for lower ct. to adjudicate on)

28 USC 1292(a)(1):


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Ct. Ap. shall have jurisdiction (these are exceptions)o Interlocutory orders (where there is no final judgment) by the D. Ct. (read:

injunctions)

With a TRO, you cannot appeal because 1292(a)(1) speaks to injunctions, whereas a TROis just a TRO

28 USC 1292(b):

If theres no final judgment (e.g., the case is still going on) and you want to appeal adiscovery motion or a denial for motion to dismiss for lack of personal jurisdiction, a D. Ct.can certify an interlocutory appeal when theres a substantial ground of difference of opinionof controlling question of law (law can go one way or the other), and an immediate appealmight end the case

o If a D. Ct. judge certifies an interlocutory appeal, the Ct. Ap. in its discretion can

permit the appeal (you still have to convince the Ct. Ap. that it should take theappeal)!

You request an interlocutory appeal denied by the Tr. Ct., how can you still get the Ct. Ap. to

hear the court? File a Writ of MandamusPROVISIONAL REMEDIESPRELIM. INJUNCTIONS: INGLIS v. ITT

Sliding Scale b/w likelihood success on merits and severity of irreparable harm

Facts: Antitrust violation w/below cost pricing by . defended itself by saying its meeting thecompetition. files for preliminary injunction. D. Ct. denies injunction. Appeals under 28USC 1292 (a)(1) to Ct. Ap.

Rules for Determining Preliminary Injunction:Test 1 [by D. Ct.(1), (3), and (4) still good law]:(1) will suffer irreparable injury

(2) will probably (by a preponderance of the evidence = more than 50%) prevail on the merits(3) In balancing the equities, the s will not be harmed more than is helped by the injunction(4) Public interest

Test 2 [by Ct. Ap.] Sliding scale (if have more harm, then need show less likelihood of successon merits, and if have less harm, then need show more likelihood success on the merits):(1) Seesaw combination of probable success and possibility of irreparable injury(2) In balancing the equities, the s

will not be harmed more than is helped by the injunction

(3) Public interest

PROVISIONAL REMEDIES

INJUNCTIONS & TROs:

ANZAI v. GANNETT

Hawaii extension of Preliminary

Injunctions


20

Likelihoodsuccess on

merits

Severity ofIrreparable

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Facts: Preliminary injunction motion to stop termination of the Joint Operating Agreement,which would have allowed Star-Bulletin to shut down, creating a one-town newspaper. Star-Bulletin owners not losing money, but they wanted to make money elsewhere. s legal claimwas antitrust, conspiracy to monopolize.

Standard for Review [Application of the Inglis Sliding Standard scale]:(1) Likelihood of the moving partys success on the merits (must be a fair chancenot 0%or 1%)!

(2) Possibility of irreparable injury to the moving party if relief is not granted(3) Extend to which the balance of hardships favors the respective parties(4) Whether the public interest will be advanced

Also goes to show the sliding scale of (1) and (2)

PROCEDURAL DUE PROCESS: FUENTES v. SHEVIN

Attempt to Balance An Otherwise Imbalanced Relationship

Facts: purchased stove and service policy on an installment sales K (w/monthly payments).She stopped payment after issue w/servicing of stove. Firestone said breached K. Firestoneobtains a writ of replevin2, where all they had to do was submit a writ to eh clerk of the smallclaims ct. (w/no judge review). With writ of replevin, Firestone goes to s home and seizesstove. Firestone posts the requisite bond (twice the amt.).

Process Values [Important] :

Dignity: give people a chance to have their voice heard; if theyre going to lose something,have charges against them, they should have a chance to keep their dignity

Participation: Idea that the legal system is really about a state exercising its power to takethings away/impose obligation, but before that happens, its important that you be able to

participate fairly and fully in that process Public welfare: Often people will want to access the legal system not just for themselves but

for the greater public good (e.g., challenging prison conditions/environmental degradation);use of the system that allows a person to make a claim that has a larger public benefit

Entitlement: What an individual is entitled to under the law

All these public values relate to one other thing thats implicit in Fuentes: lawyers are neededo As officers of the court, in the interest of justice (the second prong of being a lawyer)

that lawyers need to represent all parts of society!

Rule:

Hearing required at a meaningful time and in a meaningful manner. Must be granted at a

time when deprivation can still be prevented. Process requires that hearing needs to happenbefore the deprivation! Security bond not a substitute for prior hearing by a neutral official.

Deprivation of Property Requires a Hearing [Right to be Heard]:

Firestone is not prevented from taking property before the judgment; they just need to put awrit of replevin before a judge (putting in facts in an affidavit, a statement under oath)

2 A pre-judgment attachment


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o Judge would have to review it and make a judgment, after hearing Fuentes side

Exceptions to the Rule:

Opinion also says that there are some situations where seizures are still okay [exceptions]:o When theres a larger public interest as opposed to a smaller public interest

o Something bad is going to happen, e.g., bank closure or contaminated foodo Govt official responsible for determining necessary and justification of the seizure

o Big disasters

After Fuentes Ruling:

Holding of Fuentes: Before theres a deprivation of property there must be prior hearingo However, Mitchell v. WT Grant (pg. 324, note 3); says that there actually isnt a

requirement of a prior hearing (says that Fuentes never really held that). Mitchellheld that if there are a lot of safeguards to assure that theres no error made or thatthere could be a correction really quickly, its okay for a State to take propertywithout a prior hearing. A direct overruling over Fuentes on a fabricated rationale!

o Following Mitchell, the cts have tended to say that the prior hearing is not significantif not required

o Matthews v. Eldridge (pg. 325, note 4(a)): Ct. says that there are 3 practices of

maintaining due processefficiency does become one of the factors

In Matthews, you always cite the three practices that are affected

However, everyone looks to Fuentes to see the process values for why we have procedure

MODERN PLEADING:

EX. OF COMPLAINTS; FACTUAL & LEGAL SUFFICIENCY OF COMPLAINT

Elements of a Complaint:(1) Opening, (2) Jurisdiction, (3) Parties, (4) Circumstances (Not Facts!), (5) Claim, (6) Prayer

FRCP Rule 8. Claims for Relief (requires three things):(1) Statement of courts jurisdiction(2) Short plain statement of the claim showing pleader is entitled to relief (facts not needed

just plain statement of claim)(3) Demand for judgment

FRCP Rule 12(b)(6) to challenge the sufficiency of the complaint: Motion to dismiss for failureto state a claim.

Informational Sufficiency: Complaint has to be enough to give notice to the as to whatsgoing on (usually ct. will grant motion to dismiss, but will give time to amend) (e.g.,Macheras where complaint was not sufficient even on its face and judge allowed 2 revisions)

Legal insufficiency: Though the complaint has enough information or assuming all facts aretrue, the claim is not sufficient on its face to have a legal basis for relief (ex. Jin where thestatute of limitations had run)

o Can face Rule 11 sanctions

must make any 12(b) motion before filing his/her answer to the complaint.


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Different forms of complaints:

One which conforms to FRCP 8(a).

Forms as listed in the appendix of FRCP

California claim form code pleading state.

Dioguardi v. Durning:

Judge Clark strong realist and primary author of the FRCP wants to push system so thatcases can be heard and decided on the merits and not kicked out for other problems inpleading its claims etc.

wants his tonics. They were taken from him probably for failure to pay his customs fee.His fee was not paid so they were auctioned off at a price of $110 to a bidder. Wantsdamages and value of tonics back.

Procedural history files 12(b)(6) motion to dismiss because of failure to state factssufficient to constitute a cause of action. Ct dismisses without prejudice. files an amendedcomplaint. Because amended complaint doesnt add much, again files 12(b)(6) motion to

dismiss for failure to state facts sufficient to constitute a case of action. Ct says dont need facts! Just claim. And though stated claim inartistically, if you examine

his claim can find a few claims he is raising including conversion and failure to delivermerchandise.

Dioguardi v. DurningJurisprudential concept: allow more cases to be heard on the merits.Make it easier to get into the court house because decisions should be made on the merits and notdismissed on the pleading. Dont want pleading rules to be so technical that they deprivepeople of their day in court.

Dioguardi v. DurningTension: Tension between judicial economy and allowing more access to

the courts. But Fuentes points out that economy is not the primary concern of process it isdignity, privacy, right to be heard etc. etc. Want to allow people to have their day in court

MODERN PLEADING: RESPONSES TO COMPLAINTPre-answer Motion, Sample Answer (Zielinkski v. PHL Piers), and Affirmative Defenses

To respond to a complaint file a: (1) pre-answer motion (12(b) motion) or (2) answer

Pre-Answer Motion FRCP Rule 12(b):

has 20-days to serve an answer with every defense pleaded in the complaint. However, can serve a pre-answer motion with the 7 defenses listed in 12(b). These motions must be

filed before further pleading is permitted! If you answer first, you cannot file these motions!If these pre-answer motions are denied, the case proceeds on.

Pre-Answer Motion FRCP Rule 12(g):

may join any motion under Rules 12(b) (1)-(7). However, once you file a Rule 12(b)motion (1)-(7) and join any other motions, youve waived the other motions (exception: noteRule 12(h))! The only way to save yourself is that the motion was not then available.


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Pre-Answer Motion FRCP Rule 12(h):

Lack of jurisdiction over the person, improper venue, insufficiency of process, orinsufficiency of service is waived if omitted from the motion as described in 12(g)

However, if one of these four defenses was not included in a motion to dismiss or in theiranswer, you still have an out! You can make an amendment of the answer under Rule 15(a)

to be made as a matter of course.3

If you do this, then you have preserved your defense.However, as a matter of course, you can amend your pleading before a responsive pleading itfiled OR within 20 days. If no response to pleading to your answer is required, then youvegot 20 days to amend your answer of course.

Other defenses (subject matter jurisdiction, failure to state a claim which relief can begranted, failure to join party) not waived if not brought in pre-answer motion. To preservemust put it in your answer. Subject matter jurisdiction is never waived.

Three ways to preserve your defense of 12(b) (2), (3), (4), and (5)4: (1) include it in a pre-answermotion under a 12(b) motion; (2) file it in your answer; or (3) amend your answer under Rule15(a) within 20-days (but you can only file an amendment once)!

Answer FRCP Rule 8(b):

Dont play games. You either admit or deny the allegations. If you dont have knowledge orinformation about the allegations, you can say that youre without knowledge or informationand therefore, can deny it at this stage. Careful: if you outright deny it and youre withoutknowledge, you can be subject to Rule 11 sanctions

Affirmative Defenses FRCP Rule 8(c):

You must assert your affirmative defense or else they will have been waived! [Shall lang.]

Zielinkski v. PHL Piers:

Facts: requests ruling that the motor-driven fork lift operated by Sandy Johnson (whichinjured ) was owned and operated by and that Johnson was acting as an agent of as anemployee. responded by admitting that fork lift was owned and operated and controlled

by . However, this was false. still owned the forklift, but did not operate or control it.General denial did not put on notice as to the fact that they had the improper .

Ruling: should have specified what it admits and what parts it denies. Thoughtechnically s denial was proper because didnt meet all the criteria (poorly drafted by )denial should FAIRLY meet the substance of the averments denied. 8(b).

MODERN PLEADING: RESPONSES TO COMPLAINT RULE 15Amendment to Pleadings: The Concept of Prejudice and Amendments

Rule 15(a):

Party may amended a partys pleading once as a matter of course (w/out the ct.s

authorization) Dont be macho/dont be stubborn; just amend

Freely given when justice so requires: Pleadings are the mere allegation, putting intoplay what is going to be proved (decisions are to be made based on the merits)

If justice will be served, by allowing pleadings of the merits, the ct. will go ahead andallow that pleading (but there are certain limitations)

3 You dont have to get court approval, you just do it on your own4 Lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service


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Rule 15(b):

By allows the amendment of a pleading to conform to evidence; allows pleadings toconform to the evidence, after the fact, as long as theres no undue prejudice

Rule 15(c): Potential savior; running of the statute of limitations

Amendment of a complaint relating back to the date of the original pleading

15(c)(2): If the claim simply arises from the same nucleus of operative fact, then it relatesback to the original complaint and then theres no statute of limitations problem

If 15(c)(2) is satisfied, the proper parties recv notice of the amendment, then the statuteof limitations is dismissed

15(c)(3): The proper must know there was a mistake w/in 120 days and their able toprepare a defense so they wont be prejudiced

MODERN PLEADING: RESPONSES TO COMPLAINT CASES

Beeck v. Aquaslide, Moore v. Baker, Bonerb v. Richard J Caron Foundation

Beeck v. AquaslideFacts: Complaint alleges Aquaslide as ; Aquaslide answers that theywere the manufacturer of slide that injured because 3 insurance companies looked over theslide and said it belonged to Aquaslide. President of Aquaslide looks at slide, then knew that itwasnt theirs, but makes that comment after statute of limitations has run. Aquaslide entersmotion to amend answer.

Beeck v. AquaslideRuling [Citing Foreman v. Davis]:Finds five circumstances were ct. should deny motion to amend:

Undue delay (e.g., if the party knows it has a chance to amend but just waited)

Bad faith or dilatory motive (e.g., waits till the statute of limitations ran) Repeated failure to cure deficiencies by amendments previously allowed (e.g., Macherasno

more amendments because the first amendment did not cure all defects)

Important one: undue prejudice to the opposing party by virtue of allowance of theamendment (e.g., undue hardship on the party; have to do whole discovery process again,discovery might be completed and they have to go back and they all have to start over again)

Futility of Amendment (e.g., well allow the amendment, but theres no point because yourestill going to lose)

Ct. granted motion to amend, even despite there being severe prejudice on because the statuteof limitations had run on to be able to sue other s. However, ct. said that can always sueright manufacturer under other claims.

Moore v. BakerFacts: sues -doctor after having surgery performed, suing that doctordidnt tell about alternative therapies. Original complaint did mention the surgery and post-operative care, but did not hint that the doctors actions were negligent. However, filedamended motion covering the performance of surgery and post-operative care.

Moore v. BakerRuling (Using Rule 15(c)):


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The statute of limitations bars the claim asserted in Moores proposed amended complaintunless the amended complaint relates back to the date of the original complaint. Anamendment relates back to the original filing whenever the claim or defense asserted in theamended pleading arose out of the conduct, transaction, or occurrence set forth or attemptedto be set forth in the original pleading.

Ct. says that theres no relation backo They interpret the same conduct, transaction, or occurrence very narrowly

Bonerb v. Richard J. Caron FoundationFacts: slips on basketball ct. and filed complaintfor negligent maintenance of the ct. Motion to amend the complaint was entered after recdnew counsel.

Bonerb v. Richard J. Caron FoundationRuling:

Ct. decides that amendment should be allowedo They gave general notice about the possibility of a new claim

It was a mandatory exercise program, enough of the same transaction(defining the same transaction very broadly)

Anything connected with the treatment of the would be of the sametransaction or occurrence, enough to allow relation back

Addresses prejudice issue: Theres still time for discovery and expert witnesses havent beenidentified and imposed, and no showing of undue influence

Ct grants amendment because says the bball incident during mandatory exercise program hasthe same nucleus of operative facts (same languages as that used for test of supplementaljurisdiction)

Says anything connected with the same injury has the same nucleus of operative facts. Sincecounseling included mandatory bball at which time injury occurred connected to the injury.

Which test will the court apply?? No clear answer matters on who the judge is and what they

feel about the case. 107815

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final civil procedure outline[1]

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