Mya Almassalha

Civil Procedure Outline

I. Personal Jurisdiction
a. Until 1945
a. Pennoyer v. Neff PP 61 (1877)

Or. Code provides for constructive service when an action is brought against a non-resident and
absent defendant who has property in the state. (62)

The Supreme Court held that:

 The code violated the Due process clause of 14th Amendment

1. Because constructive service was a legal fiction that deprived a defendant
of his day in court, and unjustly attached real property that was not
directly related to the litigation.
 Created In Personam (In Hand) and In Rem (Land) jurisdictions
 Initial Exceptions: (66)
1. Personal Status: i.e. Divorce
2. Cases where service had been assented to in advance
b. International Harvester v. KY (TWEN) 1914
 Applied the In Personam rule created in Pannoyer to Corporations.
1. Created the test to determine when or if a corporation is present in the
state for the purpose of jurisdiction
i. Mere solicitation does not constitute presence
ii. There must be continuous and systematic contact with the forum
state, but the court is unclear as to exactly what constitutes this.
1. Mere solicitation alone however does not constitute
presence.
2. No clear rule
c. Hess v. Pawloski (TWEN) 1927
 Implied consent fiction: The act of driving on the state’s roads constitutes consent
to jurisdiction.
d. Blackmer v. U.S. (TWEN) 1932
 A citizen of the United States receives certain benefits that may be repudiated at
anytime. Because of these benefits the citizen owes the U.S. certain duties,
including showing up to testify. The court may enjoin his property in an effort to
ensure that he meets his obligation. This is another exception to Pannoyer.
e. Milliken v. Meyer (TWEN) 1940
 Applies the same obligations of citizenship established in Blackmer to inter-state
citizenship. A citizen of a particular state can be served with service by that state
in any other state. Another exception to Pannoyer, Pannoyer is still good law
but is being eroded.
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 b. After 1945
a. International Shoe v. Washington 1945 PP 77(Over turns Pannoyer, in Rem still good,
Notice still good)
 Establishes new rules for in personam jurisdiction: 2 new types of jurisdiction.
1. Specific Jurisdiction:
i. Minimum Contacts
ii. Traditional notions of fair play and substantial justice
2. General Jurisdiction:
i. There must be a Continuous and systematic course of business
within the state that allows the court to infer that the corporation is
physically present within the state.
b. McGee v. International Life Insurance 83 1957
 A state court may choose to hear a case if it has a vested interest in protecting the
rights of its citizens. “residents would be at a severe disadvantage if they were
forced to follow the insurance company to a distant State in order to hold it
legally accountable” 83
 In personam jurisdiction (specific) may be satisfied if there are bi-lateral or multi-
lateral contacts between the plaintiff and defendant.
 Policy issue: protecting the citizens of a state from an unscrupulous insurance
company.
c. Hanson v. Denckla 83 1958
 Unilateral contacts between the plaintiff and defendant are not enough to satisfy
in personam jurisdiction, even if the state has an interest in hearing the case.
 There must be sufficient minimum contacts between the defendant and the state to
put the defendant on notice that they may have to litigate in that state.
d. Shaffer v. Heitner 87 1977
 Eliminates quasi in rem.
 Property may not be attached as a basis for establishing jurisdiction unless there is
a tie between the property in question and the lawsuit.
 Extends the new rules of International Shoe to in Rem Jurisdiction.
 Breaks with historical tradition of using quasi in rem as basis for jurisdiction.
 (Traditional Notions…) Just because something has been used in the past it
doesn’t mean that it won’t be overturned as obsolete.
e. CME Media Enterprises v. Zelezny (TWEN) 2001
 Exception to quasi in rem result in Shaffer v. Heitner.
 Quasi in rem may still be used to attach property when enforcing a judgment
from a jurisdiction that had in personam jurisdiction over the defendant.
 Negative effects on U.S. banks.

Two tests arise in subsequent cases that deal with how courts may establish specific jurisdiction.

A. Purposeful availment Test:

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 1. World-Wide Volkswagen Corp. v. Woodson 96 1980
i. Merely placing a product in the stream of commerce is not enough
to establish jurisdiction, even if it is reasonable to assume that the
product may at some point have contact with the forum state.
ii. The unilateral activities of the plaintiff are not enough to create in
personam jurisdiction over the defendant. (Bringing the car to OK)
iii. The defendant’s own conduct and contacts with the forum state
must be substantial enough that he has notice that he may be taken
into court in that state.
B. Reasonableness Test:
1. Asahi Metal Industry Co. v. Superior Court 105 1987
i. A court should consider the burden on the defendant, the interest of
the forum state, and the plaintiff’s interest in obtaining relief. 107-
08
ii. There are serious burdens placed on an alien defendant to litigate a
case in a foreign court. This should have a significant weight in
establishing jurisdiction.
iii. Policy consideration: will doing this deprive the plaintiffs of a
legal remedy by forcing them to litigate in another country?

General Jurisdiction

I. Burnham v. Superior Court 126 1990

1. A court has general jurisdiction over any defendant served with process in
the state.
i. Plurality rather than majority opinion.
2. All elements of the Purposeful Availment and Reasonableness tests are
inferred to apply because of the defendant’s presence in the state.
3. Applies to people not corporations.
II. Perkins v. Benguet Consolidated Mining Co. 123 1952
1. Applies the continuous and systematic business actions rule from
International Shoe to establish general jurisdiction over the defendant.
2. The court still has general jurisdiction even though the primary business of
the company was not conducted within the state, had no property in the
state, and the company was not incorporated in the state.
III. Helicopteros Nacionales de Colombia, S.A. v. Hall 124 1983
1. Applies the same rule from Perkins but finds no jurisdiction.
2. Mere purchases even if occurring at regular intervals, are not enough to
warrant a State’s assertion of in personam jurisdiction over a nonresident
corporation.
3. Policy consideration: don’t want people to stop spending money in the
state for fear of litigation.

Specific Jurisdiction
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  Contracts
4. Burger King Corp. v. Rudzewicz 111 1985
i. Applies the test of World Wide Volkswagen to this case and
establishes jurisdiction.
ii. The defendant availed himself of the laws and protections of FL. In
entering into the franchise agreement with Burger King.
iii. There was a continuous long term agreement between the
companies.
 Intentional Torts
1. Keeton v. Hustler (TWEN) 1984
i. The state has a vested interest in protecting its citizens from untrue
statements.
ii. Single Publication Rule: can recover in one state for damages
suffered in all states.
iii. The very act of the intentional tort implies purposeful availement,
and reasonableness.
2. Calder v. Jones (TWEN) 1984
i. In an intentional tort jurisdiction may be established when:
1. By an act directed at the state
2. That has effects within the state
3. Harm is suffered within the state.
3. The purposeful avaliment and reasonableness tests are not applied by the
courts to intentional torts. A new test of directed action set forth in Calder
is applied instead.
 Unintentional Torts
1. See WWV & Asahi
2. Purposeful availment and reasonableness tests apply to unintentional torts
3. They follow the same reasonableness and purposeful availment test as the
other cases. The exception applies to intentional torts only.
Other Issues
 Litigation Clauses (Consent)
1. Breman v. Zapata (TWEN) 1972
i. Forum Selection clauses, though traditionally not enforced, will be
enforced in contracts provided that:
1. There was no fraud
2. There was no overreaching
3. It was reasonable and not unjust: does not deprive the
plaintiff from a legal remedy.
ii. Policy issue: not enforcing forum selection clauses is bad for
business, and might discourage companies from contracting to
work.

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 iii. “The argument that … (forum selection) clauses are improper
because they tend to oust a court of jurisdiction is nothing more
than a vestigial legal fiction. It … rests at core on historical judicial
resistance to any attempt to reduce the power and business of a
particular court…”
2. Carnival Cruise Lines v. Shute 135 1991
i. Applies the rule of Breman to a contract of adhesion.
ii. Forcing the Cruise Line to litigate the case in Washington would
open the door to other lawsuits in other even more distant and
unreasonable forums and places a large burden on the company.
1. Prices may be increased.
2. Creates confusion as to where suits may be brought.
 Internet
1. Pavlovich v. Superior Court 117 2002
i. Passive v. Active websites, sliding scale of establishing jurisdiction
over websites.
ii. Gives an example of a passive site, where there is no directed
action from the site to the forum state.
2. Gator.com v. L.L. Bean (TWEN) 2003
i. Another example of the sliding scale of jurisdiction.
ii. Gives an example of an active site.
iii. There is directed action from the site towards the forum state, so
much so that L.L. Bean can be inferred to have a virtual store in
the state.
 Long-arm Statutes: state statutes detailing the individual state’s procedure for
exerting personal jurisdiction. In order to be constitutional the long arm statutes
must comply with the standards of International Shoe. We examined three long
arm statutes:
1. CA: A court of this state may exercise jurisdiction on any basis not
inconsistent with the Constitution of this state or of the United States
i. FL: 1) Any person, whether or not a citizen or resident of this state, who
personally or through an agent does any of the acts enumerated in this
subsection thereby submits himself or herself and, if he or she is a
natural person, his or her personal representative to the jurisdiction of
the courts of this state for any cause of action arising from the doing of
any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or
business venture in this state or having an office or agency in this state.
(b) Committing a tortious act within this state.
(c) Owning, using, possessing, or holding a mortgage or other lien on
any real property within this state.
(d) Contracting to insure any person, property, or risk located within this
state at the time of contracting.
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 (e) With respect to a proceeding for alimony, child support, or division
of property in connection with an action to dissolve a marriage or with
respect to an independent action for support of dependents,
maintaining a matrimonial domicile in this state at the time of the
commencement of this action or, if the defendant resided in this state
preceding the commencement of the action, whether cohabiting during
that time or not. This paragraph does not change the residency
requirement for filing an action for dissolution of marriage.
(f) Causing injury to persons or property within this state arising out of
an act or omission by the defendant outside this state, if, at or about
the time of the injury, either
1. The defendant was engaged in solicitation or service activities within
this state; or
2. Products, materials, or things processed, serviced, or manufactured
by the defendant anywhere were used or consumed within this state in
the ordinary course of commerce, trade, or use.
(g) Breaching a contract in this state by failing to perform acts required
by the contract to be performed in this state.
(h) With respect to a proceeding for paternity, engaging in the act of
sexual intercourse within this state with respect to which a child may
have been conceived.
(2) A defendant who is engaged in substantial and not isolated activity
within this state, whether such activity is wholly interstate, intrastate, or
otherwise, is subject to the jurisdiction of the courts of this state,
whether or not the claim arises from that activity.
(3) Service of process upon any person who is subject to the jurisdiction
of the courts of this state as provided in this section may be made by
personally serving the process upon the defendant outside this state, as
provided in s. 48.194. The service shall have the same effect as if it had
been personally served within this state.
(4) If a defendant in his or her pleadings demands affirmative relief on
causes of action unrelated to the transaction forming the basis of the
plaintiff's claim, the defendant shall thereafter in that action be subject
to the jurisdiction of the court for any cause of action, regardless of its
basis, which the plaintiff may by amendment assert against the
defendant.
(5) Nothing contained in this section limits or affects the right to serve
any process in any other manner now or hereinafter provided by law.

ii. MI :
1. Sec. 701. The existence of any of the following relationships
between an individual and the state shall constitute a sufficient
basis of jurisdiction to enable the courts of record of this state
to exercise general personal jurisdiction over the individual or
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 his representative and to enable such courts to render personal
judgments against the individual or representative.
(1) Presence in the state at the time when process is served.
(2) Domicile in the state at the time when process is served.
(3) Consent, to the extent authorized by the consent and
subject to the limitations provided in section 745.
2. Sec. 705. The existence of any of the following relationships
between an individual or his agent and the state shall constitute
a sufficient basis of jurisdiction to enable a court of record of
this state to exercise limited personal jurisdiction over the
individual and to enable the court to render personal judgments
against the individual or his representative arising out of an act
which creates any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing an act to be done, or consequences to
occur, in the state resulting in an action for tort.
(3) The ownership, use, or possession of real or tangible
personal property situated within the state.
(4) Contracting to insure a person, property, or risk located
within this state at the time of contracting.
(5) Entering into a contract for services to be rendered or for
materials to be furnished in the state by the defendant.
(6) Acting as a director, manager, trustee, or other officer of a
corporation incorporated under the laws of, or having its
principal place of business within this state.
(7) Maintaining a domicile in this state while subject to a marital
or family relationship which is the basis of the claim for divorce,
alimony, separate maintenance, property settlement, child
support, or child custody.
3. Sec. 711. The existence of any of the following relationships
between a corporation and the state shall constitute a sufficient
basis of jurisdiction to enable the courts of record of this state
to exercise general personal jurisdiction over the corporation
and to enable such courts to render personal judgments against
the corporation.
(1) Incorporation under the laws of this state.
(2) Consent, to the extent authorized by the consent and
subject to the limitations provided in section 745.
(3) The carrying on of a continuous and systematic part of its
general business within the state.
4. Sec. 711. The existence of any of the following relationships
between a corporation and the state shall constitute a sufficient
basis of jurisdiction to enable the courts of record of this state
to exercise general personal jurisdiction over the corporation
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 and to enable such courts to render personal judgments against
the corporation.
(1) Incorporation under the laws of this state.
(2) Consent, to the extent authorized by the consent and
subject to the limitations provided in section 745. [FN1]
(3) The carrying on of a continuous and systematic part of its
general business within the state.
5. Sec. 741. In all civil actions where sections 705, 715, 725 or 735
[FN1] constitute the basis of jurisdiction of a defendant, on such
defendant's motion the court shall require the plaintiff to post a
bond to such defendant with 2 or more sureties to be approved
by the judge or clerk of court, or with a surety company
authorized to do business in this state, in the sum to be fixed by
the court conditioned that in the event judgment is not
rendered in favor of such plaintiff, so much of the penalty of
said bond as may be required shall be applied to the satisfaction
of any judgment for court costs and to defray the actual
expenses of such defendant incurred in defending the action
(but not to include attorney's fees). If plaintiff prevails in the
action, he may tax as costs in the case his reasonable expense in
procuring the bond furnished.
6. Sec. 745. (1) As used in this section, "state" means any foreign
nation, and any state, district, commonwealth, territory, or
insular possession of the United States.
(2) If the parties agreed in writing that an action on a
controversy may be brought in this state and the agreement
provides the only basis for the exercise of jurisdiction, a court of
this state shall entertain the action if all the following occur:
(a) The court has power under the law of this state to entertain
the action.
(b) This state is a reasonably convenient place for the trial of the
action.
(c) The agreement as to the place of the action is not obtained
by misrepresentation, duress, the abuse of economic power, or
other unconscionable means.
(d) The defendant is served with process as provided by court
rules.
(3) If the parties agreed in writing that an action on a
controversy shall be brought only in another state and it is
brought in a court of this state, the court shall dismiss or stay
the action, as appropriate, unless any of the following occur:
(a) The court is required by statute to entertain the action.
(b) The plaintiff cannot secure effective relief in the other state
for reasons other than delay in bringing the action.
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 (c) The other state would be a substantially less convenient
place for the trial of the action than this state.
(d) The agreement as to the place of the action is obtained by
misrepresentation, duress, the abuse of economic power, or
other unconscionable means.
(e) It would for some other reason be unfair or unreasonable to
enforce the agreement.
7. Sec. 751. The courts of record of this state shall have jurisdiction
over land situated within the state whether or not the persons
owning or claiming interests therein are subject to the
jurisdiction of the courts of this state.
8. Sec. 751. The courts of record of this state shall have jurisdiction
over land situated within the state whether or not the persons
owning or claiming interests therein are subject to the
jurisdiction of the courts of this state.
IV. Venue
a. The principle venue rules for federal court may be found in statute 28 U.S.C. §§ 1391
1407 1631.
 For a corporate defendant see 1391(c): a corporate defendant will be found to
reside wherever there is personal jurisdiction over him.
 For foreign defendants an Alien may be sued in any district, see 1391(d): may be
sued in any district.
 For government agencies/employees see 1391(e)
 For foreign governments see 1391(f)
 Rule 1407 deals with issues of transfer: transfers are done to consolidate litigation
into a single area for the sake of efficiency. Transfers are allowed at the court’s
discretion.
 Rule 1631 deals with transfers to state court due to lack of jurisdiction. This is
done at the court’s discretion and the court may simply dismiss the action.
b. There is at least one federal district per State.
c. There are many reasons why the court is interested in ensuring reasonableness in enacting
venue statutes: 1. Distance, 2. Burden on the court/jury/parties. 3. Practicality.
d. The assertion of venue is not always upheld by the court, depending on the cause of
action, the court may allow a transfer of venue.
e. The state venue rules are more detailed than the federal venue rules, it isn’t that hard to
apply but it is something that a person should be aware of. There are different rules
governing contracts and torts.
f. The inquiry as to venue is only approached if the personal jurisdiction issue is satisfied.
The court will look first to see if there is personal jurisdiction in the state, and then will
look to see where in the state the action should be brought.
g. Michigan has unusual rules

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 It will not recognize venue selection clauses if the clause deviates from the
standard established in the state statute. Even if the selection clause was
voluntarily agreed to by all parties.
NO CASES
V. Remedies
a. The difference between a court of equity and a court of law:
 The court of law only provided remedies based on the letter of the law, if there
was no relief granted in the letter of the law then there was no relief. The typical
remedy of a court of law awarded money damages.
 The court of equity or chancery was an extension of the king’s authority. These
courts were designed to hear cases where there was no remedy in the common law
or if the remedy in law was insufficient. The single most important element in
getting a hearing in the court of equity was the idea that the court of law failed to
provide relief. The court of equity awarded other damages i.e. injunctions,
specific performance, declaratory relief. These are not common remedies,
particularly in contracts, since money damages are easier to award and monitor.
1. These courts have been merged in most states. The main problem that led
to the merger was that the equity court overturned many court of law
rulings, creating conflict between the courts and it created additional
redundancy. Almost every state has eliminated the equity court, but has
retained the concept of the court of equity into the court of law. There is
now only one court, the power of the judge now extends to both types of
remedies.
2. Declaratory judgment before an actual breach is not usually given unless
there is an actual issue and that there is an important reason why the court
should decide to hear the case.
3. Preliminary relief: relates to what a court may do for a client before the
case is heard. Generally (nothing), this is inherently a pro-defendant rule.
However, in some cases there as some pre and post, judgment actions.
b. Types of relief available:
 Injunctions:
1. Sigma Chemical Co. v. Harris 285
i. Former employee violated non-competition clause in employment
contract by accepting a position with Sigma rival and by providing
the rival with information related to Sigma operations.
ii. Court determines that there is a restrictive covenant in the contract.
The court must determine if the restrictive covenant is reasonable,
as an unreasonable covenant will not be enforced. There is a three
prong test:
1. The covenant must be reasonably necessary to protect the
employer’s legitimate interest.

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 2. The covenant must be reasonable in terms of temporal
scope.
3. The covenant must be reasonable in terms of geographic
scope.
iii. Based on an examination of the covenant the court decides that it is
reasonable.
iv. Holding: Harris is enjoined the court issues an injunction
prohibiting Harris from conduct that it considers in violation of the
restrictive covenant.
 Temporary Restraining Orders & Preliminary injunctions
1. TRO: can be issued ex parte, it is temporary and must explicitly state its
expiration date. Expedited hearing for the other party if they choose to
contest the TRO. This can be an attachment of property or a garnishment.
It is ineffective until the person gets actual notice. No constructive notice.
A TRO will not be issued without a bond. The bond rule tends to favor
wealthy persons.
i. The government will not be required to post a bond; only a private
party is required to post a bond. So the idea would be to get the
court to issue a narrow TRO that would lessen the affect of the
TRO on the party involved.
ii. Ex parte: with only one side present.
2. Preliminary Injunction: cannot be issued ex parte, but can last until the
actual trial.
i. William Inglis & Son Baking Co v. ITT Continental Baking Co.
1. This is an appeal of a request for a preliminary injunction.
2. The court develops a test for when to issue a preliminary
injunction:
a. The plaintiff will suffer irreparable injury if
injunctive relief is not granted.
b. The plaintiff will probably prevail on the merits
c. The defendant will not be harmed more than
plaintiff is helped by the injunction.
d. Granting the injunction is in the public interest.
3. Holding: remanded to lower court to reexamine based on
the test.
3. Attachment and garnishment: provide provisional monetary relief.
i. Attachment: involves the seizure of property.
1. The law tends to favor a pre-attachment hearing with most
of the protections associated with a TRO. There are
however some instances when the government may act
without a hearing:

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 a. If the seizure has been directly necessary to secure
an important government or general public interest.
b. There is a special need for prompt action.
c. The state has kept strict control over its monopoly
of legitimate force.
ii. Garnishment: involves asking a third party not to pay the defendant
money due him because the plaintiff has a claim on said money.
iii. These measures are taken to guarantee relief to the plaintiff and to
stop the defendant from disposing of assets.
4. Replevin: a common law action, where a suit is brought to recover goods
that have been wrongfully seized.
i. There are questions of due process associated with the seizure of
goods since the 5th and 14th amendments prohibit the deprivation of
property without due process of law.
1. After Fuentes v. Shevin the court may no longer allow
replevin without due process.
2. This applies only government actions, it does not apply to
the actions of private parties.
ii. UCC §9-503 a secured creditor may take private action against a
debtor in default without a violation of the peace. It is non-state
action and as such it doesn’t violate the 14th amendment. This is
important in respect to moveable property.
1. Unsecured creditor there is no collateral pledged for the
repayment.
2. Secured creditor is one where a creditor has an interest in a
specific property that a person owns, i.e. car, house loans.
3. The law provides special rights to secure creditors where
they may take back the property in which they have an
interest. The main advantage for them is that there is a
specific asset they may point to and take back. This
mechanism is important because we have a consumer based
society, because it encourages commerce.
iii. Fuentes v. Shevin 322
1. Action for replevin of personal property seized by Sears
because of a disputed debt.
2. State law allowed for authorized seizure of personal
property without actual notice and without a hearing.
a. The first time the defendant hears of the seizure is
when the sheriff appears to remove the property.
3. The court decides that in order to ensure due process of law
adequate notice must be provided prior to the seizure, at a
time when the deprivation may still be prevented.  Even

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 temporary deprivation is subject to the due process clauses
of the US constitution.
4. Sets clear exceptions when seizure may be done without
notice:
a. If there is an important government or public policy
issue.
b. If there is a special need for prompt action.
c. If there are strict governmental limits and control
over the exercise of legitimate force.
5. The court further states that contracts with waiver clauses
will not be enforced because a person cannot waive the
right to due process and should not be deprived of
constitutional rights based on a contract of adhesion where
there is limited bargaining power.
VI. Subject Matter Jurisdiction
a. History: 1787 and the constitutional convention.
 Prior to the constitution the articles of confederation were the governing rules of
U.S. The constitution replaced the articles of confederation.
 Articles of confederation were too weak:
a. There was no ability to collect taxes.
b. No centralized executive power.
c. No federal court system.
 The federalists: people who believed in the need for a powerful government, and
that a state court should not be relied on to enforce federal law, and that there
should be a strong federal court system.
 The anti-federalists: too much centralized power = tyranny. There must be a
check on federal powers. State courts should be more powerful as a check for the
power of the federal government.
 There was a draw between the federalists and anti-federalists. ART III of the
constitution is illustrative of this draw, it creates a judicial branch: federal courts,
with limits on the cases/controversies that may be heard in Federal courts. These
have been interpreted to be the maximum limit on federal judicial power.
b. 3 routs to federal court
 Federal Question § 1331:
1. The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.
 Diversity Jurisdiction § 1332 (a)-(c):
1. The district courts shall have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $75,000, exclusive
of interest and costs.
2. The action must be between citizens of different states, or between a US
citizen and a Non-US citizen who is not a permanent resident.
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 3. Or the action must involve a foreign state as defined by § 1603.
4. A corporate defendant is a citizen of the state where it was incorporated
and where it has its primary business operations.
 Supplemental Jurisdiction: § 1367
1. Any civil action over which the Federal court has original jurisdiction may
include related non-federal claims at the court’s discretion.

Federal Question: See U.S. Constitution Art. III; 28 USC §1331, 1333(1), 1338, 1345

I. The well pleaded complaint rule: looking at the face of the complaint is the only way to
get to Federal court, any defenses or counterclaims will not provide a reason for removal.
The only way to remove to Federal court is that complaint itself has federal issues, or has
diversity issues and Federal court would have had original jurisdiction. The removal
petition is filed in federal court not state court; the court must be in the same district as
the state court action.
II. The original complaint must arise under a question of federal law or the constitution.
Questions of federal law include but are not limited to:
a. Admiralty
b. Anti-trust
c. Bankruptcy
d. Other federal laws or statutes
III. A case that does not conform to one of the allowable instances in Art III § 2 may not be
heard in federal court, the sole remedy would be a state court.
IV. Cases that will generally not be heard in Federal court:
a. Family Law
b. State law cases not arising under diversity.
V. 28 USC § 1331: is the general federal question statute and deals with when cases may be
heard in Federal court.
a. It gives federal courts jurisdiction for cases “arising under” the constitution, statutes,
or treaties of the federal government.
b. There is no clear test for establishing when a case “arises under” a federal question.
VI. Louisville & Nashville Railroad v. Mottley 179
a. The Supreme Court establishes the Mottley Rule: a suit arises under the Constitution
and laws of the United States only when the plaintiff’s statement of his own cause of
action shows that it is based upon those laws or that Constitution.
b. If the defense to the claim is based on some Federal law or the Constitution it is not
considered to be a federal question.
c. In this case the railroad was basing its assertion of jurisdiction based upon its defense
that it did not have to honor its settlement with Mottley due to federal laws
prohibiting the issuance of free passes.
i. The court held that there was no subject matter jurisdiction because the case
did not arise under a Federal question based on the Mottley complaint.
ii. The railroad’s defense is immaterial to the establishment of jurisdiction.

15
 VII. To ask for dismissal due to lack of subject matter jurisdiction one can invoke rule 12(b)
(1) for failing to state a cause of action arising under a federal question.
a. This is different from 12(b)(6) which is a failure to state a cause of action upon which
relief may be granted.
VIII. International Armor & Limousine v. Moloney Coachbuilders Inc. (TWEN)
a. An example of a well pleaded complaint.
b. The complaint on the surface appeared to be a suit regarding trademark infringement
which is an issue over which the Federal Court has subject matter jurisdiction.
c. However, the court, upon closer review determined that the issue was in fact about a
breach of contract, which the court does not have subject matter jurisdiction over.
d. The case was dismissed, even though there had been substantial work done on it in
Federal Court.
i. This case is illustrative of the fact that a Federal Court may dismiss for lack of
subject matter jurisdiction at any point in the litigation. A well pleaded
complaint may get you into Federal Court but it will not keep you there if
there truly is no Federal Question, and you may be penalized by having to
start over in state court, by missing the statute of limitations for filing.

Diversity Jurisdiction: See 28 USC §1332(a)-(c)

I. This is made possible by Art III of the constitution which allows causes of action to be
brought in Federal court when the “controversies are between citizens of different states”
and “between a State, or citizen thereof and foreign states, citizens or subjects”
II. Diversity Jurisdiction is controlled by 28 USC §1332
a. There must be complete diversity of citizenship.
b. Diversity is applicable when:
i. The case is between citizens of two different states.
ii. Between a US Citizen and a Non US Citizen
1. This does not apply to permanent residents who are considered citizens
of the state in which they reside.
2. It also does not apply when both parties are Non-Citizens.
iii. A foreign State against a US Citizen
iv. The amount in controversy exceeds $75k
III. Redner v. Sanders 190
a. There is a distinction between residence and Citizenship. For purposes of a diversity
suit a US citizen residing abroad is not considered a citizen of the foreign State.
b. In order to establish a case in Federal Court, the plaintiff must at the outset provide all
arguments for why the case should stay in Federal Court.
i. The court will not give a second chance to establish subject matter jurisdiction
if it finds that the court lacks jurisdiction initially or if you fail to adequately
make your case.
ii. State Citizenship test:
1. Where is the person currently domiciled?

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 2. Is there an intent to remain indefinitely?
IV. The time for measuring diversity is the date on which the complaint if filed in Federal
court.
a. This is true even if the plaintiff has since relocated to a different state.
V. The existence of a single non-diverse party in the suit will be enough to destroy diversity
and the court may dismiss due to lack of subject matter jurisdiction.
a. This is because the reason for Federal Courts having subject matter jurisdiction in
diversity situations is based on the fear that State Courts may be biased towards their
own Citizens.
i. This fear is negated if both sides of the conflict are citizens of a particular
state.
ii. Or if both sides of the conflict are not US citizens.
iii. There is an exception for class action suits of over $5mil, where any member
of the class possess the requisite diversity.
VI. For purposes of diversity partnerships are considered collections of individuals, and the
citizenship of each person must be considered.
a. This does not apply to corporations
i. A corp. has dual citizenship:
1. The state where it is incorporated
2. The state where it has its chief place of business.
a. Two tests:
i. Corporate nerve center test: where the executive and
administrative functions are controlled.
ii. Muscle test: where the everyday business activities are
conducted.
VII. Exceptions when diversity does not apply:
a. In personal status cases: divorce cases.
b. Probate: is settled based on state law and should be handled in state courts.
VIII. Saadeh v. Farouki 197
a. Suit between a permanent resident Alien and a Non-US Citizen.
b. The suit was brought in Federal court alleging diversity.
c. The court held that there was no diversity because even though one person was a
resident Alien and had during the course of the litigation obtained US Citizenship for
the purposes of diversity both parties were still considered aliens.
i. What this means: Resident Aliens for purposes of diversity are considered
dual citizens.
1. That a suit between a US Citizen and a Resident Alien living in the
same state negates diversity, because they are both citizens of the same
state for purposes of diversity.
2. That a suit between a Resident Alien and a non-Resident Alien negates
diversity because they are both still Aliens.

17
 ii. It also means that diversity is measured at the time the suit is brought and
becoming a US citizen during the course of the suit does not create diversity
where there is none.
iii. This is not a Supreme Court case and so the rules may vary from Jurisdiction
to Jurisdiction.
IX. Amount in controversy rules
a. In order for a case to be heard in Federal Court based on diversity the amount in
controversy must reach a threshold of $75k.
i. If the claim fails to prove that it will reasonably reach $75k the court will
dismiss.
1. It can dismiss at any point in the litigation where this becomes clear.
a. It is very important then no to misrepresent the amount of
money in controversy because the court will dismiss at any
point in the suit.
b. There are some instances where the amount may be aggregated between different
claims to make the threshold limit:
i. A single plaintiff with 2 or more unrelated claims against a single defendant
may aggregate.
1. 2 plaintiffs with unrelated claims against a single defendant may not
aggregate.
ii. If one plaintiff meets the threshold limit and a second plaintiff with the same
or similar claim does not, and they are both suing the same defendant both
may sue in Federal Court.
iii. If there are multiple plaintiffs or multiple defendants with a common
undivided interest and a single title or right, the value of the TOTAL interest
will be used to determine the amount in controversy.
iv. In a class action suit, at least some members of the class must satisfy the
amount in controversy, aggregation alone will not work.
v. Counterclaims may be heard regardless of the amount in controversy so long
as they are compulsory. If the counterclaim is permissive it requires an
independent jurisdictional basis. See FRCP # 13

Supplemental Jurisdiction: See 28 USC §§1367

a. Is based on attaching a claim that on its own would not have qualified for Federal Court to a claim
that does qualify.
i. In order to determine if there is supplemental jurisdiction the claims must have facts
that are common and operative. They have to be so interrelated as to create a single
story.
b. 4 instances in which supplemental jurisdiction may not be applied: 28 USC § 1367(n)
1. Novel or complex issue of state law
2. The state claim substantially predominates over the federal issue
3. The district court has dismissed all the claims where there were original jurisdiction and all
that is left is the state issue
4. In exceptional circumstances there may be other compelling reasons to decline jurisdiction
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 c. The separation of powers in the constitution, Art 3, allows for a distinction between claims/
controversies and cases. As long as there is a close relationship between the claims then they are
part of the same case. Art. 3 prohibits cases that lack a federal issue element from being brought they
don’t prohibit non-federal issues of being attached to issues of federal law in the same case.
d. In re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation. 207
a. The original complaint is based on a Federal question related to the Truth in Lending act. It
alleges that Ameriquest violated the act when they misrepresented facts to her regarding the
mortgage she obtained from them.
b. The supplemental jurisdiction complaint is based on State law to void her mortgage.
c. The court states: supplemental jurisdiction may be applied based on a loose factual
connection so long as those facts are common and operative to both claims.
i. The court holds that it cannot address one claim without addressing the other and as
such supplemental jurisdiction applies.
d. The defendant attempts to allege that there was a novel and complex issue of state law and
that the state claim should be sent to state court, but the Court does not agree.
e. Szendre-Ramos v. First Bancorp 209
a. An example of where the court does not find in favor of supplemental jurisdiction.
b. The Federal Claim is based on violations of Federal Employment laws.
c. The Supplemental claim is based on several violations of state law including, wrongful
discharge, defamation and tortious interference with contracts, and violations of PR
constitution.
d. The court elects not to hear the supplemental cases for 2 reasons.
i. It is an issue of PR law which has not yet been addressed by PR courts Novel Issue
of law.
ii. PR state claims substantially dominate over the federal claims.
Other Jurisdictional Issues:
I. Removal USC § 1441: defendants may request that an action be removed from State to Federal
court.
a. If the federal court accepts jurisdiction it does two things, 1 it notifies the plaintiff to stop the
action in state court, and then it notifies the state court that the action has been removed.
30 day window to file a motion for removal, it is important to pay close attention to the
date of the filing.
b. Caterpiller, Inc. v. Lewis 215 USC § 1447
i. Initial action brought in state court by Lewis against Caterpiller.
ii. Caterpillar moves to remove to Federal Court based on diversity.
1. This is because Lewis settled with one of the other parties to the suit who was
domiciled in the same state as Lewis. Caterpillar alleges that the settlement
makes the case removable.
a. Caterpillar satisfied the removal statute of limitations by one day.
2. Lewis moved to have the case sent back to State court, because another
plaintiff (Liberty Mutual) had yet to settle its claims against the other party
that Lewis had settled with and as such that party was still a defendant and
diversity did not apply.
a. The court refused Lewis’s argument and Lewis was forced to litigate
in Federal Court and lost.

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 i. Lewis appealed an on appeal the appeals court, found that the
district court had mistakenly allowed diversity jurisdiction
where it did not apply.
b. The case went to Supreme Court and the Supreme Court is deciding
whether the initial misjudgment still burden the case? (Or) Is the
misjudgment overcome by the subsequent dismissal of the non-diverse
party at a later date, when Liberty Mutual Settled with them?
i. Lewis’s argument: that Liberty Mutual’s settlement would
have occurred after the statute of limitations ran out and as
such Caterpillar would have been unable to remove to Federal
court.
ii. Caterpillar’s argument: is that diversity would have applied
once Liberty Mutual settled with the other party and that
although they removed to Federal Court too early, there was no
misconduct because there was diversity in the end.
c. The Supreme Court sides with Caterpillar against the arguments of
Lewis, stating that although the court initially erred there was still
diversity at the end.
i. It also stated in response to Lewis’s objections that Federal
Judges and Attorneys are well versed in the rules and as such
its decision does not set a bad precedent, because the court is
sure that the rules will be correctly applied in the future.
3. 28 USC § 1445: forbids the removal of some actions that would otherwise be
removable under § 1441.
II. Concurrent Jurisdiction: means that the plaintiff may bring the action in either state or federal
court.
a. This is a result of the compromise between the federalists and anti-federalists.
b. The state court has a broader scope of inquiry than the federal courts and can hear cases on
more issues.
i. The limitations on subject matter jurisdiction do not generally apply to the state
courts.
ii. There are some instances where federal courts will provide the sole remedy and if that
is the case then the suit may only be brought in Federal court.
VII. Pleadings See FRCP # 4, 7, 8, 9, 10, 11, 12
a. Pleading is a set of documents the first of which is the complaint, followed by the answer. Most
of the time this is not so simple, counter claims, third party complaints, can also be part of the
pleading.
 Notice pleading: shift in American law, at the outset of a lawsuit we don’t expect
the plaintiff to know everything. There must be a good faith basis for the
allegation. Funnel example, things get narrowed down, and moves through filters
that may cause the case to be dismissed.

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 1. Close look at Rules 8 & 9. Some actions require more information than
others.
i. Rule 9, Pleading Special Matters details particular situations when
more detailed information is required i.e. case of fraud, conditions
precedent.
2. If you are not 100% sure about something you may make reasonable
inferences, so long as you indicate that you are not 100% backed up by
fact. Stating something like: by reasonable belief.
 Affirmative defenses: have to be raised at the beginning, or they are waived. This
is something that the defendant bears the burden of proof. See Rule 8.c  answer.
The importance of the list in 8.c is that these defenses are the only ones
considered an affirmative defense, and the defendant has the burden of proof.
1. Generally 3 categories
i. Category 1: Breach of Contract:
1. Duress, failure of consideration
ii. Category 2: Torts
1. Contributory negligence, statute of limitations, release
iii. Category 3: the we’ve already taken care of this category…
1. The claim has been discharged, arbitration and award,
payment.
 If you have an affirmative defense you must state it clearly in your answer or it
may be waived. The burden of proof is on the defendant to prove this defense.
1. These are generally complete defenses to the action and can cause it to be
easily dismissed. No wasting the court’s time.
 Complaint: In the complaint you should provide a reasonable amount of
information, more than just the bare bones that are required by rule 10. This
allows you to give the judge more information about the case, and it answers
more questions than it rises.
1. Alleges enough facts that upon reading will make a reasonable person
angry  avoid using excessive adjectives.
2. The facts should be arranged in such a way that it leads to a conclusion but
does not exaggerate.
3. After filing a complaint, the clerk will give you a stamped authorized
summons. Then the complaint and summons are forwarded to the
defendant, and when the defendant gets it they’ve been served. (See rule
4) (Michigan rule 2.105)
i. Michigan allows the mailing of the complaint, so long as it sent via
certified mail with a return receipt request.
ii. 120 days to complete service.
iii. Waiver procedure of rule 4, you mail the process to the defendant
with a waiver, if the defendant consents to the waiver they are
entitled to extra time to file the answer. There are also penalties if

21
 you receive the process in the mail and then refuse the waiver, the
court may force you to pay the fees of the process service. Being
reasonable at the outset makes a good impression on the judge. No
waiver in Michigan.
 Can’t serve international defendants in the same way as
domestic defendants
 There are constitutional limits on the service of process.
 Answer: The answer will allege one of three things: Denial, Admit, or Defense.
Controlled by Rule 12(b). The defendant must respond to all factual allegations.
1. Rule 9 provides the framework for when the defendant must provide
additional information in the answer or in the affirmative defense that
forces you to identify exactly what was said or done and why it should be
considered.
2. Instead of answering the defendant also has the option to do nothing, and
thus default.
i. Defendants default generally for three reasons:
1. Lack of resources
2. Failure to identify a meritorious defense.
3. Or because they know they are wrong and unlikely to win
and choose not to waste resources on an attorney.
3. Pre-answer motion: is a request that the court take some action regarding
the lawsuit.
i. Rule 12 motions delay the need for the defendant to answer and it
delays the next stage of the litigation.
1. Motion for a more Definite Statement: 12(e) it is rarely and
almost never successfully invoked because of the discovery
rules and because if the claim is truly that vague it will be
subject to a 12(b)(6) first. It asks the plaintiff to clarify his
claims.
2. Motion to strike: 12(f) challenge a part of a pleading that
fails under the substantive law, even though the rest of the
pleading states a claim or a defense. It forces the removal
of irrelevant and prejudicial allegations in a pleading.
3. Motion for Judgment on the Pleadings: 12(c) this is granted
when the court thinks that the law is clear and that further
development of the facts would not assist in deciding the
case.
4. Denial: Rule 8(b) requires that the defendant deny only those allegations
they actually disputes. According to Rule 8(b)(6) any allegation not denied
is considered admitted.
 Rule 11 governs the conduct of the lawyer in a proceeding. It is a very bad idea
to break this rule.

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 1. Punishment imposed on lawyers for wasting the court’s time and or
showing a lack of respect for the court and its processes.
2. The lawyer has a duty to conduct a good faith investigation: make sure
that you check prior to filing a law suit the claims that you are making.
Put in your due diligence, the degree of diligence depends on the locale.
3. It regulates the way Lawyers and clients must conduct themselves in
establishing standards for investigation of law and facts.
i. It is a procedural rule of professional conduct.
ii. It establishes an interlocking set of standards, procedures, and
sanctions, which affects the conduct of litigation.
 Rule 8: Claim for Relief
1. A pleading that states a claim for relief must contain:
i. An allegation of jurisdiction.
ii. Short and plain statement of the claim showing that the pleader is
entitled to relief.
iii. Demand for judgment for the relief sought.
 Rule 9: in some specific instances additional information may be required.
1. These instances are usually related to allegations of a personal nature
against one of the parties such as fraud.
i. In the cases where additional disclosure is required the party
making the allegation must disclose particular facts to support their
allegations. 9(b).
ii. The court assumes that in Fraud cases that the alleging party would
have specific information related to the fraud at the outset of the
litigation and so has more stringent rules than those or rule 8.
 Reply: Rule 7(a)(3) requires a reply if the answer contains a counterclaim that is
labeled as a counterclaim. If the answer contains a counterclaim that is an
affirmative defense then a reply is not technically required.
1. Generally careful lawyers will reply to all new matters to void any
possible inadvertent admission.
 Amendments: Rule 15, parties may seek to change their stories and as such they
have to request that the court allow them to amend their complaints/answers.
1. The court will generally allow it where is no prejudice: the longer the case
has been in litigation the more likely it is that the court will find that an
amendment will be prejudicial.
b. Cases:
 Bell Atlantic Corp. v. Twombly 359
1. Deals with the short and plain statement requirement of rule 8 and the
additional incidents where more information is needed listed in rule 9.
2. In this case Twombly made allegations of price fixing and conspiracy
against power companies in an effort to create and sustain local
monopolies.

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 3. The case was initially dismissed because Twombly failed to make a
definitive claim of conspiracy, by providing factual support for the
allegations. Dismissed under Rule 12 (b)(6) for failing to state a claim
upon which relief may be granted.
i. On appeal the court held that based on FRCP #8 all that was
required was a short and plain statement.
ii. The Supreme Court is now examining the standard of pleading in
Antitrust and Conspiracy cases.
1. The court held that although heightened fact pleading is not
required for this type of case, there needs to be some
evidence of more than parallel conduct to support the
allegation of conspiracy.
iii. The Supreme Court reversed the Court of Appeals and dismissed
for failure to state a claim on which relief may be granted. 12(b)(6)
 Stradford v. Zurich Insurance Co. 365
1. Deals with FRCP #9 which requires additional information when accusing
a person of Fraud.
i. The rule requires the disclosure of the time, place, and nature of
the misrepresentations leading to the fraud.
2. Zurich failed to disclose specific information regarding the allegations of
fraud.
i. Rather than dismiss, the court gave Zurich leave to amend the
complaint to include the specific instances related to the
allegations of fraud.
ii. Leave to amend is covered under rule 56(b).
 Jones v. Block 370
1. Deals with an instance where the court erred in requiring heightened
evidence in the initial complaint when the allegations made were not
among the ones listed in rule 9.
i. The court decides that if the allegation is not one covered under
rule 9 it must fall under 8, which requires only a short and plain
statement.
2. As a second issue, it decides that failure to exhaust administrative
remedies in the Prison is not an affirmative defense since it is not listed as
one of the affirmative defenses in the FRCP 8(c).
i. If the defense made is not on the list of affirmative defenses in the
FRCP then it is not considered an affirmative defense.
 Walker v. Norwest Corp. 377
1. Demonstrates an instance of when rule 11 sanctions may be imposed and
who they are imposed against.

24
 2. Choosing to impose a rule 11 sanction is discretionary; it is imposed
against the attorney, and can include being made to pay the legal fees of
the other party.
3. In this case the attorney failed to amend, or drop litigation based on a lack
of complete diversity, when he was given notice of the lack of diversity by
the opposing side.
4. The court imposed a rule 11 sanction because the attorney failed to follow
through in conducting a proper investigation, was sloppy, and not diligent.
 Christian v. Mattell, Inc 381
1. Demonstrates an instance of when rule 11 sanctions are overturned due to
an abuse of discretion.
2. The court imposed a rule 11 sanction on the attorney for Christian due to
misconduct in the proceeding.
i. He failed to withdraw the complaint within the 21 day window
after being presented with evidence that there was no copyright
infringement.
ii. For tossing the Barbie heads across the room
iii. For becoming rude and belligerent to his client and to the opposing
side.
iv. For failing to conduct an adequate investigation into the truth of
the allegations made against Mattell.
3. The appeals court overturned the rule 11 sanction because although, the
attorney did make some rule 11 violations in failing to investigate
adequately, the court incorrectly looked at abuses and misconduct that fell
outside the scope of rule 11 sanctions such as discovery abuses,
misstatements, and conduct in litigation.
i. Rule 11 sanctions are given for misconduct regarding pleadings,
written motions, and other papers that have been signed and filed
in a given case. It does not authorize sanctions for discovery
abuses or misstatements in oral presentations.
 Zielinski v. Philadelphia Piers, Inc. 393
1. This is a personal injury case, asking for damages due to injuries sustained
in the course of employment as a result of a collision between two
motorized fork-lifts.
2. The issue in this case is that the answer of the defendant contains
ineffective denials of part of the complaint which deals with who owned
and operated the fork-lift.
i. Compliance with the rule requires that defendant file a more
specific answer than a general denial.
1. A specific denial of parts of complaint and specific
admissions of other parts would have warned the plaintiff
that he had sued the wrong defendant.

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 2. Because of this failure the plaintiff was deprived of his
right of action against the correct defendant.
3. The consequence of this action is that the court allows the plaintiff to
continue his suit against the defendant.
i. Defendant is equitably estopped from denying agency because of
its inaccurate statements since the statute of limitations has run and
prohibits the plaintiff from bringing suit against the correct
defendant.
ii. As a result the defendant may not use an affirmative defense, even
though they one would apply, because they failed to state it at the
outset of the litigation.
 Beeck v. Aquaslide ‘N’ Dive Corp. 403
1. Personal injury claim against Aquaslide as the manufacturer of the model
that caused the injury of the plaintiff.
2. Aquaslide initially believed that it did manufacture the slide, but
subsequently discovered that it did not.
3. Issue: Aquaslide is requesting leave to amend its answer to include a
statement that it was not the maker of the slide.
4. Leave to amend is controlled by FRCP #15 (a)(2) a party may amend its
pleading only with the opposing party’s written consent or the court’s
leave. The court should freely give leave when justice so requires.
i. The burden is on the opposing party to show that there will be
prejudice towards them if the court grants the amendment.
ii. The court gave leave to amend the pleading because it found that
there had been no misconduct on the part of Aquaslide and that it
would be unduly prejudicial against them to not allow the
amendment.
1. The court rejected the contention of Beeck that allowing
the amendment would kill the litigation because of the
statute of limitations.
5. Aquaslide then requested a separate trial to determine who manufactured
the slide. The court granted that motion also subject to rule 42(b), because
the issue raised was an issue of substantial material fact which if resolved
in favor of the defendant would exonerate defendant from liability.
 Moore v. Baker 409
1. Plaintiff seeks leave to amend complaint to allege a lack of informed
consent as well as negligence on the part of the defendant in the
performance of the surgery and during the post-operative care of the
Plaintiff.
2. The initial complaint alleged only violations of informed consent.
3. Defendant alleges that Plaintiff is prohibited from adding to the complaint
based on the statute of limitations which had since run out.

26
 4. Plaintiff contends that they aren’t barred by the statute of limitations due
to Rule 15 (c) which states that the amended complaint relates back to the
date of the original complaint.
i. The court states that while this is true, it only applies when the
amendment asserts a claim or defense that arose out of the conduct
transaction, or occurrence set out in the original pleading.
ii. In this particular case the allegation of negligence is not related to
the allegation of lack of informed consent, because the two issues
arose at different points of the surgery and there was nothing in the
original complaint to suggest any sort of negligence claim.
1. The new claim does not arise out of the same conduct,
transaction, or occurrence as the claims in the original
complaint.
 Bonerb v. Richard J. Carson Foundation 411
1. Federal Claim based on diversity. Damages requested for personal injury
when plaintiff slipped and fell while playing basketball on defendant’s
basketball court. Plaintiff claims the basketball court was negligently
maintained by defendant.
2. During the course of litigation, the Plaintiff made a motion to substitute
new counsel. The Plaintiff then moved to add a new cause of action for
counseling malpractice to the suit.
i. The Plaintiff claims that he was compelled to play basketball on
the court as part of mandatory rehabilitation and counseling
prescribed during the course of his rehabilitation program.
1. Plaintiff contends that rehabilitation and counseling care
was negligently, carelessly, and unskillfully preformed.
3. Based on rule 15(a)(2) the court should freely give leave when justice so
requires it. Within the limits of rule 15(c) that the claim arise out of the
same conduct, transaction, or occurrence as the claims in the original
complaint.
i. The court holds the Plaintiff is allowed to amend complaint
because the initial charge included a claim of negligence, and that
the discovery period had not expired so there would not be undue
prejudice or an additional burden placed on the defendant.
b. Notice: goes back to Pennoyer v. Neff. A secondary issue in Pennoyer was what type of
notice of a suit was necessary.
 The court in Pennoyer made it clear that in order to have an in personam and in
rem action the parties must be given some sort of notice of litigation.
1. For in personam the court concluded that in hand service of notice was
needed.
2. In rem actions constructive notice could be used.

The issue of notice was further expanded by the court in the wake of International Shoe:
27
  Mullane v. Central Hanover Bank & Trust Co. (1950) 141
1. This case clarified the notice requirement established in Pennoyer.
2. The suit involved constructive notice to members of a particular trust
regarding possible misconduct in managing the trust.
3. Not all the members of the trust were notified of the action, and the suit
claimed that the constructive notice violated the due process clause of the
5th and 14th Amendments.
4. The court disagreed stating:
i. In hand notice is always best. When the parties are certain, then
they should be given in hand notice.
ii. However, in this particular case asking the trust to identify all
possible beneficiaries would have been expensive and burdensome
and would have encouraged banks to stop administering such
trusts.
iii. There is also an assumption that the beneficiaries should be aware
of their possible interest, (as in real property actions), and as such
keep an eye on the trust.
iv. Since there are many members of the trust, the court feels that
those members in protecting their own interests will act to protect
the interest of the other beneficiaries.
5. As such the court holds that the way notice was served did not violate the
due process clause.
c. FRCP Sections: 4, 7, 8, 9, 10, 11, 12
 Rule 4: details what a summons must entail.
1. (A) name the court and the parties;
2. (B) be directed to the defendant;
3. (C) state the name and address of the plaintiff's attorney or--if
unrepresented--of the plaintiff;
4. (D) state the time within which the defendant must appear and defend;
5. (E) notify the defendant that a failure to appear and defend will result in a
default judgment against the defendant for the relief demanded in the
complaint;
6. (F) be signed by the clerk; and
7. (G) bear the court's seal.
 Rule 7: details the type of pleadings allowed:
1. (1) a complaint;
2. (2) an answer to a complaint;
3. (3) an answer to a counterclaim designated as a counterclaim;
4. (4) an answer to a crossclaim;
5. (5) a third-party complaint;
6. (6) an answer to a third-party complaint; and
7. (7) if the court orders one, a reply to an answer.
 Rule 8: pleadings must state a claim for relief and contain:

28
 1. (1) a short and plain statement of the grounds for the court's jurisdiction,
unless the court already has jurisdiction and the claim needs no new
jurisdictional support;
2. (2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
3. (3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.
4. It also discusses affirmative defenses and when they may be brought.
There are 19 listed defenses. These must be brought at the beginning of
the suit and constitute a complete defense to a claim if accepted by the
court.
i. accord and satisfaction;
ii. arbitration and award;
iii. assumption of risk;
iv. contributory negligence;
v. discharge in bankruptcy;
vi. duress;
vii. estoppel;
viii. failure of consideration;
ix. fraud;
x. illegality;
xi. injury by fellow servant;
xii. laches;
xiii. license;
xiv. payment;
xv. release;
xvi. res judicata;
xvii. statute of frauds;
xviii. statute of limitations; and
xix. waiver.
NOTE: If a party mistakenly designates a defense as a counterclaim, or a
counterclaim as a defense, the court must, if justice requires, treat the
pleading as though it were correctly designated, and may impose terms for
doing so.
 Rule 9: the pleading does not need to allege the capacity of a party to sue or be
sued. This rule applies after subject matter jurisdiction has been satisfied.
 Rule 10: details what each pleading must contain:
1. Every pleading must have a caption with the court's name, a title, a file
number, and a Rule 7(a) designation. The title of the complaint must name
all the parties; the title of other pleadings, after naming the first party on
each side, may refer generally to other parties.
2. A party must state its claims or defenses in numbered paragraphs, each
limited as far as practicable to a single set of circumstances. A later
pleading may refer by number to a paragraph in an earlier pleading. If
doing so would promote clarity, each claim founded on a separate
transaction or occurrence--and each defense other than a denial--must be
stated in a separate count or defense.
 Rule 11: deals with violations of pleading rules. It also establishes a signature
requirement for all filed documents. These documents must bear the signature of
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 the attorney who is submitting them. It requires that the attorney verify that the
claim is non-frivolous before filing the complaint or an answer. See above notes
 Rule 12: deals with pre-answer motions and with answers. There are several types
of pre-answer motions that may be filed. These motions delay the time for
processing the claims, and extend the time which the attorney has before filing an
answer with the court. See above notes.

VIII. Discovery: See FRCP # 16, 26, 30, 32, 34, 35, 36, 37
a. Discovery is the legal mechanism for unearthing information. Discovery typically occurs only
after the pleadings are closed. The discovery rules compel the parties and others involved in a
lawsuit to cooperate in the unearthing of factual background.
a. Rules 26-37 & 45 give parties broad power of investigation, this power is backed by
court-imposed sanctions.
 Rule 26(a)(1) requires a party to reveal to the other party certain basic information
supporting that party’s claims or defenses.
1. Names of witnesses
2. The existence of documents
3. Bases for damage calculations.
 Rule 26 (b)(2) & 26(c) provide three restrictions that limit what may be
discoverable by the other side.
1. Parties may discover only evidence that is relevant to a claim or defense.
2. Even if relevant the requested information may be protected.
i. Privileges against self-incrimination
ii. Attorney Client
iii. Doctor Patient
3. Unprivileged information may be undiscoverable if a party can convince a
court that its potential for annoyance, embarrassment, oppression or undue
burden or expense, outweigh its value.
b. Discovery tools:
 Interrogatories: Rule 33 questions asked by one side’s attorney to the other side’s
attorney. Find out general information about the other side, who were the parties
involved, what documents to they have. Limit of 25 questions without leave of the
court. They may be sent only to the parties in the actual litigation.
 Doc. Requests: Rule 34 & 45(a)(1) (A)(iii)produce information and records
requested by the other party. Unlike interrogatories and depositions there are no
limits to how many documents may be requested.
 Oral Depositions: Rule 30 & 45 take place under oath and are the unfiltered
answers of the party. Must send a request to the other side notifying them of the
place and time and person. Must be recorded: transcript by court reporter, paid for
by party taking the deposition. The deposition may also be recorded. The other
side’s attorney is present there and may interject, only if the rules are broken, or if
the client is abused. The other side’s attorney may prepare their client for the

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 deposition. They may explain how the process works, that they are under oath,
and that they need to think before they answer the question(s). Limits:
1. Total number of depositions may not exceed 10.
2. No deposition may exceed a day of seven hours.
3. No person may be deposed a second time without the permission of the
court or the other side.

Purpose of a depositions
i. Inform/educate
ii. Exhaust recollection
iii. Close avenues
iv. Lay ground for impeaching a witness
 Physical exams: Rule 35, common in tort cases, looking at the injuries suffered to
prove that they damage was related to the cause of action, and also to the extent of
the damages. Can only be requested of parties to the suit and not of non-parties.
No court is going to require that the person submit to the exam, if they don’t the
jury may be notified of this failure, and the case may be dismissed or may be
ruled against you. Must show good cause before such a request can be made.
 Requests for Admission: Rule 36, asks the person to admit the truth of a particular
subject… the following is true… it also may only be served on a party, and is
filtered through a party. It is only applicable to the current suit, and does not apply
to any subsequent litigation and it is very hard to change it. If the party makes an
admission and wants to back out of it, the judge instructs the jury that the
following facts are reality and the jury may not speculate on it and the attorneys
cannot ask questions about it. This is not the case for interrogatories because the
jury may speculate against it. It takes an entire subject off the table. It is not so
much as a way to discover evidence as it is a way to make discovering the
evidence irrelevant.
 Subpoena: rule 45, when the testimonies of the persons or documents you need
are the possession or custody of a non-party to the suit.
c. Abuses of discovery:
 Too little discovery
 Too much discovery
 Destruction of evidence
These violations may make the party subject to Rule 37 sanctions.
d. Expert Witnesses
 Since the discovery rules allow requests for information about expert testimony,
this allows the other side to find out information about the expert which allows
you to discredit or impeach his testimony i.e. medical malpractice case.
 The idea is to undercut the effectiveness of the testimony of the expert. Perhaps
introduce the idea that the expert is one who will give his testimony for anything.

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  The rules for impeachment vary somewhat from court to court, so the court may
allow testimony in that relates directly to the cause of action and less likely to
allow testimony that has little to do with the case at bar. The idea is to prevent
sidetracking of the case and excessive time in front of the judge.
b. An expert witness gives facts that are beyond the knowledge of a lay person i.e. bridge
example.
c. Testifying witness: choose someone with an impressive CV and who comes across well
to the jury.
d. Consultant: person who you employee because their credentials may make them a
testifying witnesses.
e. Rule 26 only requires notice of the testifying witnesses not the consultant witnesses.
Include a copy of CV, publications, qualifications, and findings. The other side will
want to depose the witness.
e. Mandatory disclosure v. non Mandatory disclosure: amended in 1993, is part of rule 26a.
Congress will force the attorney to do a minimum amount of work on a particular case at the
outset; this will reduce the amount of litigation that actually goes to trial or settle on the eve of
the trial.
a. Rule 26 (a) requires the parties to exchange categories of information that the disclosing
party will use to support is claims or defenses.
 That information includes the names and locations of witnesses and descriptions
and location of documents.
b. Rule 26 (a)(2) requires the parties to disclose the identity of any expert witnesses and
accompany that disclosure with the expert’s written report and a list of information about
the expert.
c. Rule 26 (a) (3) each party must disclose lists of witnesses and documents or exhibits it
intends to produce at trial.
d. These obligations to disclose are enforced by rule 37(c)(1).
f. Duty to preserve evidence: Spoliation. The party’s have a duty to preserve evidence that may
prove to be relevant to the litigation.
g. Work Product:
 Attorney work product: anything produced by an attorney in anticipation of the
litigation or during the litigation. See Hickman v. Taylor. Some work product is
less protected than others.
 Always indicate on the document that the document is protected by privilege. It is
important to know what was produced and when.
 The more something is unique the more likely it is that the court will allow the
document in and limit the exercise of privilege.
 Attorney client privilege is generally not discoverable; this is done to protect the
relationship between the attorney and the client. This is state law, and it varies in
scope from state to state. The same thing is true with other instances of privilege
such as doctor/patient.

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  Facts may be discoverable if there is no other place where they can be found, as
an exception.
 Core work product is almost never discoverable.
h. Rule 37: provides some sanctions to ensure discovery. A court may impose punishments ranging
from awards of expenses to dismissals of an entire case or the entry of a default judgment.
a. Two types of sanctions:
 Immediate: Rule 37 (d)(f) are available on the occurrence of the misbehavior.
 Other sanctions can only be imposed if the party fails to comply after the court
orders them to do so. Rule 37 (b)
i. There is always a tradeoff between accuracy and efficiency. FRCP rules are not consistent, in
some respects they favor efficiency and in other respects they favor accuracy.
 Look for broad reoccurring patterns that exist within the FRCP rules of personal
jurisdiction, subject matter jurisdiction, pleading, and discovery.
j. Cases
a. Butler v. Rigsby 30
 The plaintiff claims that requests for discovery made by the defendant are barred
by doctor/patient privilege, and by the fact that producing the information is
unduly burdensome to the non-parties to whom the request was made, and that the
information is not relevant to the lawsuit.
 The judge holds that some of the information is in fact barred by privilege and is
not discoverable. But that the information was relevant, and that although
expensive to produce the benefit conferred outweighed the burden.
b. Davis v. Precoat Metals 417
 Hostile work environment allegations made by African-American and Latino
employees at Defendant’s Chicago plant. The plaintiffs allege discrimination in
treatment and retaliation against them by company personnel after complaints
were lodged.
 Plaintiffs are requesting disclosure of other employee complaints of
discrimination against the Defendant.
1. The question is: are Plaintiffs entitled to said discovery?
2. The Plaintiffs have limited their discovery requests to:
i. The 1998-to-Feb. 2002 period.
ii. Complaints by employees who worked at the same Chicago plant.
iii. Complaints of race and national origin discrimination.
3. The court concludes that the requests sought by plaintiff are narrowly
tailored to their specific claims and are thus discoverable.
c. Steffan v. Cheney 419
 Claim of constructive discharge due to the fact that Plaintiff was homosexual.
 Plaintiff invoked 5th amendment rights against self-incrimination, in refusing to
answer questions as to if he engaged in homosexual activities during Plaintiff’s
tenure with the Navy.

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 1. Court ordered Plaintiff to answer the questions. Since answering the
question is highly relevant to the defendant’s defense that Plaintiff
violated the rules and should not be reinstated.
2. When Plaintiff refused again, the court ordered Rule 37 sanctions against
Plaintiff for failure to comply with the discovery rules and dismissed the
case.
 In the appeal the court held that under Rule 37, no sanction may be upheld if its
imposition was based upon an error of law and reversed the sanction.
1. The question of law is the wrongful discharge: of the Plaintiff was
wrongfully discharged he has never been discharged and in the eyes of the
law he remains in service. The question of law was not misconduct.
i. Thus the trial court erred in finding that the inquiry into
homosexual conduct to be relevant on the grounds they asserted
since the question dealt with wrongful discharge and not
misconduct as the trial court stated.
d. Silvestri v. General Motors Corp. 421
 Products liability case against GM for the failure of the GM car driven is airbags
to deploy correctly. Plaintiff contends that his injuries were enhanced by the
failure of the airbags to deploy.
 During the course of the litigation Plaintiff, who was not the owner of the car,
failed to preserve the car for examination by GM experts. The car was repaired.
1. The court dismissed the action stating Plaintiff had a duty to preserve the
evidence and dismissal was the appropriate penalty for the spoliation of
evidence. This is affirmed by the appeals court.
2. Plaintiff’s argument: that he had no duty to preserve the evidence since he
was not the owner and was not required to take any steps to preserve the
evidence for GM to examine. Also plaintiff claims that he had no control
over the car and that he could not prevent the spoliation.
i. The court stated that even though plaintiff was not the owner, he
still had a duty to at least inform GM that the owner was going to
have the car repaired and allow them to take appropriate steps.
Since it was apparent to the court that the Plaintiff had access to
the car for his side to examine it.
3. Plaintiff further argued that dismissal was too harsh a penalty because GM
was not so severely prejudiced that it could not defend itself at trial.
i. Court states that Plaintiffs actions were either intentional or
negligent.
ii. That spoliation was highly prejudicial to GM and it is a
combination of both these elements that leads the court to conclude
that the action should be dismissed.
e. Hickman v. Taylor 442
 The case deals with work product privilege.

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 
The plaintiffs were attempting to use the discovery tools to obtain information
about the strategy and thoughts of the defense counsel who took notes and
interviewed witnesses in preparation for litigation.
 The court concludes that attorney work product is generally privileged and that
the plaintiffs are not entitled to discover the strategy and thoughts of opposing
counsel.
1. The court holds that it is unfair in to attorneys to require that their work
product be disclosed to the opposing side, unless there is some compelling
reason, and that to allow discovery in this case would undermine our
adversary based legal system.
f. Zubulake v. UBS Warburg LLP. 464
 Document retention policy: the company deletes documents after a particular
period of time, and has a system set in place across the board. In Zubulake the
retention policy is three years.
 The court requires that companies, who anticipate litigation, implement policies to
retain material, which may be needed for discovery, for an additional duration.
 Three prong test: before awarding an adverse inference order the court looks at
three things.
a. Duty to preserve: did the party have a duty to preserve the information
b. Culpable State of Mind: was the document destroyed negligently,
recklessly, or willfully?
c. Relevance: how relevant was the evidence to advancing the case… the
party must prove that the document destroyed would have seriously
advance the case. (The relevance question should only be asked when
there is negligence or recklessness, if the party acted willfully there is no
relevance prong because it is implied from the destruction.)
 If a court awards an adverse inference order it is not likely that the order will be
reversed and that it is likely that the case will probably settle before trial, because
one side will probably be pretty sure to lose.
k. Forum Non-Conveniens & Transfer Motions , Federal Venue Statutes
a. Forum Non Conveniens
1. From one Federal court to a Federal court 28 USC § 1404
2. From one Federal court out of a country (Common law doctrine)
3. From one State court out of a country. (Common law)

This is different from removal because removal covers moving from a state court to the federal
court.

b. Transfer: 28 USC § 1404 applies only to Federal Courts, allowing them to move cases
around the country for the convenience of parties and witnesses, in the interest of justice.
 This is done for reasons of efficiency, because while the court has the authority to
hear the case, it elects not to because it may be better heard elsewhere.

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 c. Federal Venue Statute: 28 USC §§ 1391 1392, typically tries to place suits in areas
connected either to the parties or to the events giving rise to the action. In many respects
the inquiries necessary under present venue statutes duplicate those involved in personal
jurisdiction questions. The present venue statute took its present form in 1990.
 A Corp. defendant is considered to reside wherever it is subject to personal
jurisdiction.
 Venue is statutory and can be abolished.
 The Federal venue statute applies only to actions originally brought in Federal
Courts.
1. Cases removed from state to federal court are not subject to federal venue
requirements. As long as the venue lies in the district encompassing the
state court from which the case is removed.
 For real property (land) the rule states that only the courts of the state where the
land is located will hear cases that raise any question concerning title to the land.
d. Cases
 Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd. 160
1. An anti-trust action against US & non-US corporations for price fixing,
and restraint of competition in the rubber thread trade.
2. A defendant not subject to jurisdiction in any state court that is severed
with process is subject to personal jurisdiction in Federal Courts as long as
the assertion of jurisdiction when:
i. The assertion is consistent with Federal laws
ii. Does not offend the constitution
3. The service of process on the defendant did not offend the constitution.
4. For international defendants. 28 USC § 1391 (d) allows aliens to be sued
in any district, is controlling over the Clayton act which allows suit to be
brought only where the defendant may be found.
5. For the domestic defendants 28 USC § 1391 (b) allows venue when:
i. A judicial district where any defendant resides
ii. A judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred.
iii. A judicial district in which any defendant may be found, if there is
no district in which the action may otherwise be brought.
6. The action was brought in Eastern district of VA, and though the plaintiffs
have been able allege some connection with VA they must show sufficient
contact that at least one of the American distributors may be found in the
Eastern District, if not the action may be transferred.
 Piper Aircraft v. Reyno 164
1. Deals with transfer and forum Non Conveniens.
2. The action is for strict liability and was brought in Federal Court for
diversity purposes.
3. Issue 1: Transfer
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 i. The action was initially brought in Federal Court in CA. The
defendants asked that it be transferred to PA since PA is more
convenient to the defendants.
ii. Motion granted.
4. Issue 2: Forum Non Conveniens. (the issue on appeal)
i. Once the case arrived in PA the defendants moved to dismiss due
to Forum Non Conveniens.
ii. Stating that Scotland was the more appropriate forum for the suit,
since the victims were Scottish, and the accident occurred in
Scotland.
iii. However, the laws in Scotland are more favorable to the Defendant
since they do not allow strict liability and limit the amount of
damages which may be awarded to the Plaintiffs.
iv. The trial court held: that the case may be dismissed due to Forum
Non Conveniens.
v. This was reversed by the appeals court stating: dismissal for forum
non conveniens is never appropriate where the law of the
alternative forum is less favorable to the plaintiff.
vi. The Supreme Court, holds that favorability of the law should not
be an issue when granting dismissal for forum non conveniens.
1. If the possibility of an unfavorable change in substantive
law is given substantial weight dismissal would rarely be
proper.
2. Also the flow of litigation to the US would increase and
further congest an already crowded court.
3. Exception: is the remedy provided by the alternative forum
is so clearly inadequate or unsatisfactory that it is no
remedy at all the unfavorable change in law may be given
weight.
4. Weight is given to the forum selected by the Plaintiff if it is
the plaintiff’s home forum, when it is not the home forum
then the plaintiff’s right to choose the forum may be
overcome by private and public factors towards having the
trial in the alternative forum.
5. The court also concludes that even if the case were to be
tried in PA Scottish law should be controlling since
Scotland has more of an interest in the litigation than
American law. PA courts are not very familiar with
Scottish law and as such the burden on the court to hear the
case is high enough to warrant the dismissal.
IX. Summary Judgment also known as Curtailed Adjudication: See FRCP # 56

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 a. The provisions for discovery implicitly suggest that dismissal should not occur until the parties
have had a full opportunity to obtain factual information about the case. However, not all cases
should reach trial.
 Summary Judgment provides a mechanism for deciding cases for which a trial is
not necessary and would serve no purpose.
 Rule 56 regulates summary judgment: A party may move for summary judgment
at any stage of the proceeding. However, generally such motions are not granted
until after the factual development of the case is complete and discovery is over.
1. Rule 56 (c) requires courts to grant summary judgment only when there is
no genuine issue as to any material fact.
2. The respondent has the burden of showing the absence of a genuine issue
as to any material fact, and the facts must be viewed in the light most
favorable to the opposing party.
b. Houchens v. American Home Assurance Co. 34
a. Motion for summary judgment granted when plaintiff was unable to prove that the
declared death of her missing spouse was the result of an accident or murder.
 A motion for summary judgment should only be granted if there is no material
dispute of the facts.
b. The burden of proof is on the plaintiff to prove that the death was in fact accidental and/
or the fact her husband was actually dead.
c. Even though the state allows a person to be declared deceased after being gone for 7
years, it does mean that the death was actually an accident or a murder. It only means that
the person cannot be found and is presumed to be dead.
d. In order to survive the summary judgment the plaintiff would have had to show that there
was some evidence to suggest an accident or murder.
 The sole evidence provided by the plaintiff is the declaration of death from the
state.
 The court held that this was not sufficient evidence.
c. Celotex Corp. v. Catrett 529
a. Motion for summary judgment granted by trial court, revered in error by appeals court,
reversed on appeal to the Supreme Court. Motion Granted.
b. This is a wrongful death case, Catrett contends that her husband died after being exposed
to asbestos in products created by Celotex.
 The dispute is surrounding the inability of Catrett to prove that the exposure to
asbestos occurred during the statutory period.
 A party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of the pleadings and discovery which it believes demonstrates the
absence of a genuine issue of material fact.
 Rule 56 does not contain an express or implied requirement that the moving party
support its motions with affidavits or other similar materials negating the
opponents claim.
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 1. Rule 56 (c) suggests that the absence of such a requirement.
 The principle purpose of the summary judgment rule is to isolate and dispose of
factually unsupported claims or defenses.
 Any potential problems can be dealt with under Rule 56 (f) which allows a
summary judgment motion to be denied or continued if the nonmoving party has
not had an opportunity to make full discovery.
 Summary judgment is an important part of the trial process and is necessary to
secure just, speedy and inexpensive determinations.
 The moving party successfully proved that there was no evidence presented by the
nonmoving party to support a continuation of the litigation.
d. Bias v. Advantage International, Inc. 535
a. Life insurance policy not obtained by agent, at the request of basketball star (deceased)
and family.
b. Motion for summary judgment granted, because Plaintiff failed to prove that deceased
was not a habitual drug user.
 The testimony of the parents and coach were not sufficient to contradict the
testimony of teammates who were present at the time the alleged drug use took
place.
 In order for testimony to contradict the testimony of the other party it would have
been necessary to produce witnesses to testify to events that directly contradict the
testimony of the teammates; those other witnesses would have needed to be
present at the same events for their statements to be credible.
 The reason the drug use was an issue is because no insurance company would
have issued a life insurance policy to a habitual drug user without a material
misrepresentation.
 If Bias was a habitual drug user then the agent would not have been able to obtain
a life insurance policy for him and as such had no obligation to do so and no
liability for failing to obtain the policy.
c. Since the plaintiffs were unable to prove that the deceased was not a habitual drug user
and the issue of insurance companies not issuing policies to drug users was a matter of
fact the motion for summary judgment should be granted.

***Three things to look for are: 1. the historical context of the use of jurisdiction in the past. 2. If there is in
fact minimum contacts according international shoe how are they applied. 3. The test used by the court to
determine the contacts. You may also want to see if there is a forum selection clause. ***

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