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Civil Procedure OUTLINE: FALL 2009

Personal Jurisdiction
-In what state can P sue D?
-Does Court have personal jurisdiction over D?
-If no PJ, then any judgment entered is void and unenforceable. No Full Faith
and Credit

-If PJ, then the court can compel D to answer, and if D does not (defaults),
default judgment is enforceable. Judgment can be enforced in another state
when D is located (FFC)

Two Steps of Personal Jurisdiction

Step 1: Does statute authorize personal jurisdiction over D?
Federal Courts: FRCP Rule 4(K); p.11
-Same as state courts. FRCP 4(k)(1)(A)
-Look at state long arm statute
-Does PJ comport with DP under statute?
-Most Common
(2) 100 mile” bulge” for joiner under FRCP 14 or 19.
(3) Another federal statute
(4) D is not subject to PJ in any state. FRCP 4(k)(2)
-State Courts: Long Arm Statutes
(1) Enumerated Acts Statutes
-Example: NY/IL
-list certain acts such as “transacts business within state,
or commits a tortuous act within the state)
-deem as fit into a specified act

Step 2: Is exercise of PJ over D constitutional?

Constitutional Bases for PJ
(2)Personal Service in the forum state
(3)Domicile within the forum state
(4)Property in the forum state is attached before judgment and MC
(5)If D is not present in the forum, MC w/ forum such that does not
offend notions of fair play and substantial justice

(1)CONSENT: PJ is a waiveable defense. D can agree to be subject to court’s

power over him/her
-Implied by statute
-Hess, p.73. Mass. Long arm statute provided that motorists
agreed to appointment of registrar for service. USSC held
consistent with DP
-car accident in Mass. ; D was resident of Penn.
-Mass. Long Arm statute appointed registrar as
agent for out of state motorists driving w/in state
(implied consent)
-D challenged PJ as violation of DP
-USSC upheld long arm statute and PJ

-example of specific jurisdiction (only for specific act of
driving in Mass.)

-Shaffer,p. 147
-Shareholder’s derivative suit allows P to due officers of
company against the actual company
-P sued D Greyhound in Delaware (where co. was
incorporated) and attached all of the stock in an attempt
to est. PJ
-USSC rules that property also required MC test
-following case, Delaware passed law that by being
officer of a company, you are giving implied
consent to be sued where company is incorporated

-By estoppel
-Bauxites, p.171.
-Ds contested PJ. P attempted to use discovery to
establish PJ facts.
-Ds failed to comply with court order to produce requested
-Under FRCP 37(b)(2)(A), court imposed sanction
that PJ facts were established; and D could no
longer contest personal jurisdiction

-By contract (forum selection clause)

-Zapata, p. 173.
-P signed contract with D, which included a forum
selection clause listing London High Court as place for all
-during contract fulfillment actions, the steamship was
injured in FL, P brought suit in FLA
-USSC ruled FLA had no PJ b/c of the forum
selection clause in the contract
-it would damage foreign relations if US
doesn’t recognize laws of other nations
-Shute, p.173 (Carnival Cruise)
-when P purchased tickets on cruise, as part of agreement
with Carnival, any disputes would be litigated in FLA
-P was injured on ship and brought suit in Washington
State (where P was resident)
-Court ruled Wash. had no PJ due to the forum
selection clause
-benefit to P is keeping costs down and allowing
cheaper cruises, since D doesn’t have to prepare
for defense in other states
-By appearing in court (filling an answer). Pennoyer

-some states require D to file a “special appearance” to preserve
any PJ objection. If D files special appearance D is not
-special appearance not required in federal court


-Burnham, p. 160.
-D, a NJ resident, was on 3 day visit to CA. Personally served by
wife for divorce claim.
-USSC upholds PJ as consistent with DP.
-Scalia- personal service in forum always satisfies DP. PJ
based on presence is traditional Basis of personal jurisdiction;
minimum contacts analysis not necessary; federalism was
driving Scalia
-let states decide themselves if they want to change this
-Brennan-personal service in forum generally satisfies DP; but
should also do minimum contacts analysis
(1) D availed himself within the state (health and safety,
got benefits from the forum state)
(2) Burdens of the defendant are slight (b/c already been
to state)
-HYPO: Would Court still uphold PJ if D only “present” in CA airspace?;
Grace, p.171
-D was served while passenger on a flight from Tenn. To TX
-Would this uphold PJ?
-Scalia: YES b/c still reaped benefits from forum
-Brennan: no, b/c not sufficient MC and not fair


-Milliken, p.71.
-P sued D, a Wyoming domiciliary, in Wyoming state court, but
was personally served in Colorado under a Wyoming statute that
allowed this type of service for absentee residents
-D did not appear, and default judgment was entered.
-USSC held Wyoming Judgment valid and entitled to FFC.

-What is “domicile”?
-A person’s “true, fixed, and permanent home.” Mass, p.256.
-Change of domicile- requires:
(1) Taking up residence in another place and
(2) Intent to remain there.
-taxes, Driver’s license, purchase of property
-Availability of D’s domicile as a proper forum means that there is
always one place when individual D can be sued.



-What is property?
-examples: internet domain names, real property, cars, debt
-Minimum contacts analysis applies b/c property is a substitute for
interests of a true person.
Shaffer, p. 147
-Shareholder’s derivative suit allows P to sue officers of
company against the actual company
-P sued D Greyhound in Delaware (where co. was
incorporated) and attached all of the stock in an attempt
to est. PJ
-USSC rules that property also required MC test
-establishes 4 categories of Personal Jurisdiction

-True in rem- property is focus of dispute, D is “all the world,” P’s

claim is all about the property. Satisfies MC b/c:
-Presence of property=contact
-property shows D expected to benefit from state’s protection of
his interests
-State has a strong interest in assuring marketability of property
-State has a strong interest for resolving disputes about property
-State is convenient forum b/c records and witnesses likely in the
-Example: quiet title action

-Quasi in rem type I: property is the focus of the dispute; D is

identified as a specific claimant to property; P’s claim is related to the
property; Satisfied MN b/c:
-Presence of property=contact
-property shows D expected to benefit from state’s protection of
his interests
-State has a strong interest in assuring marketability of property
-State has a strong interest for resolving disputes about property
-State is convenient forum b/c records and witnesses likely in the
-Example: mortgage foreclosure, repossession

-Quasi in rem type II: P has claim against D, property is unrelated to

the claim. Most will fail MC.
-Property does NOT equal a contact b/c is unrelated to the claim.
-D must have other contacts with the forum state
-Exception: Tort suit arising from absentee landowner’s
failure to maintain property (p.150)
-Shaffer p.147

-Distinguish between property used as basis for PJ and property is used

to satisfy in personam judgment.

-flexible test
Functions of MC test (World-Wide Volkswagen):
(1)”Touchstone” is “purposefully established minimum contacts”
(BK, p.109) (P’s burden)
What are D’s contacts with the forum?
(1)Are contacts systematic and continuous, or casual and
(2) Was there “purposeful availment” in these contacts
and/or was it foreseeable that they would lead to a suit?
-the requirement may be satisfied if a product was
put in the stream of commerce
(3)Is the claim related, or does it arise out of D’s contacts
with the forum?
-If No, the general jurisdiction test (higher threshold
for MC in general jurisdiction cases)
-if #1 is not satisfied, do not continue on to the fairness step

(2) Fairness (D’s burden)

-D’s burden-D must make a “compelling case”; though in
a very strong unfair case, Stevens suggests start with
step 2 in Asashi
-All in all, would jurisdiction offend “notions of fair play
and substantial justice”?
(1)D’s convenience burden: how much trouble will
it be for the D to defend in the forum, where
records and witnesses located
(2)What are the forum state’s regulatory interests
in the dispute?
(3)What, if any, benefits did D get from the state?
(4)What are P’s interests in the forum?
(5)What is the system’s interest in efficiency?
(6)What are the shared interests of several states?


(1)Are contacts systematic and continuous, or casual and isolated?
-Systematic and continuous=PJ
-International Shoe, p.76
-Washington State sought to collect unemployment taxes from
Int’l Shoe
-Int’l Shoe was incorporated in DE, with their principle place of
business in MO
-Shoe had no office within the forum state, had no employees in
state (Only agents), and made no contracts within the forum,
and products were shipped Free on board
-Shoe argued against PJ

-USSC upheld PJ due to stream of commerce, as well as
benefits from the forum state (using state’s courts), as
well as continuous presence within forum
-SHOE established minimum contacts

Keeton, p .104 (Hustler case)

-P is a NY resident who brought liable suit against Hustler, an
Ohio corp., in New Hampshire (b/c only forum where the statute
of limitations had not expired)
-D argued against PJ
-USSC upheld PJ b/c of the volume of magazines that the
D sold in forum
-purposeful availment of forum, advertised and
sought out the market of forum
-Casual and isolated=PJ where contacts are related to the claim
-McGee,p. 89
-mother (resident of CA) was suing insurance co. over late son’s
life insurance in policy, which was issued to son in CA
-D was a TX corporation; P’s policy was the only CA business
that they had
-USSC upheld California’s PJ, citing that D had purposefully
availed CA
-transacted business within the forum state by mail, as
the P and D had sent mailing back and forth within the
forum state

(2) Was there “purposeful availment “in D’s contacts (Hanson)

and/or was it foreseeable that they would lead to suit (World-Wide
-Contact by D with forum state must be purposeful, not
unilateral act by P or third party
Hansen; p. 90
-Mother establishes trust in De, then later moved to FLA
-lists two daughters as beneficiaries to most of estate, but
lists third daughters children as trustees over a later
established trust
-after death, 2 daughters brought action in FLA to rule the trust
-trustees argued against PJ, FLA ct. upheld PJ and invalidated the
-at same time, a suit w. the same parties was on-going in De to
figure out the trust
-2 daughters entered FLA judgment in DE case, claiming
Fill Faith and Credit Clause, as FLA court had already ruled
on issue
-DE court ruled that the trust was valid; all parties appealed to
-USSC ruled that the FLA courts had no PJ over D
-Trustees did not reach out to Florida
-no purposeful availment

-3rd party availment does not constitute PJ
-territoriality is at heart
-Foreseeability- foreseeable that D would be sued in forum
World-Wide Volkswagen:
-P buy a car in NY, where they are residents
-I yr. later, while driving through OK, get into a severe accident
-P brings suit in OK against car manufacturer, distributor, ect (D)
-D challenges PJ in OK courts, as they had never sold a car in OK,
had no contacts with OK, ect
-P argues that D has MC due to stream of Commerce
-OK courts uphold PJ, D appeal
-USSC rules NO PJ b/c D does not purposefully avail themselves
to forum state
-not foreseeable that D would be sued in forum state, as
they had no contacts, And beyond this one car, had never
sold a car that to their knowledge had been in OK
-forseeability argument modified:
-NOT foreseeable that the good would be used there,
but that the D would have forseeability that they could
be SUED there (goes beyond the SOC to SOC Plus)
-modifying the Gray decision
-just because cars can be used in another state, doesn’t
mean that the D should be sued there
-D's did not purposefully avail themselves in the forum
-petitioners reap no benefits from OK, or OK courts,
so therefore shouldn’t burdened by them

-Quid pro quo theory: D purposefully availed himself of

benefits/protections of State. Puts D on notice of potential for suit.
Gives potential D availability to structure conduct.

-World Wide Volkswagen:
-NOT foreseeable that the good would be
used there, but that the D would have
forseeability that they could be SUED there
(goes beyond the SOC to SOC Plus)
-modifying the Gray decision
-just because cars can be used in another
state, doesn’t mean that the D should be
sued there
-D's did not purposefully avail themselves in the
forum state

-petitioners reap no benefits from OK, or OK
courts, so therefore shouldn’t burdened by them

-USSC ruled that the FLA courts had no PJ over D
-Trustees did not reach out to Florida
-no purposeful availment
-3rd party availment does not constitute PJ

D: father, NY resident
-P: mother, suing for modification of child support
agreement, California resident
-Suit was filed in California, D objected to California
-Need to look at D's contacts to state
-bought daughter to California
-lets children move there
-is sending $ to California, as well as contacting his
kids in California
-Court ruled that D's contacts were not counted as
purposeful availment
-quid pro quo: the heart of purposeful availment- did
the defendant benefit from his contacts with
-Court rules that the D is not getting benefits
from the state of California
-This is a fairness case, not a state sovereignty case
-not fair for the D to be tried in California

-Burger King: p.108
-D purposely availed himself within the forum state by
entering into a voluntary contract with a FLA based
-mailed payments to the FLA corporate office
-D went to "Burger King University" for training
-D were in constant contact with the corp. offices
-contract includes a "choice of law" provision
stating that FLA law will rule any potential
-contract negotiations were held in FLA: "This
agreement...shall be deemed made and entered
into the State of Florida…"
-D reaped benefits from the contract, as well as
forum state
-D should have foreseen legal action within the forum
state due to contract with FLA corporation
-D had substantial connections to FLA through contract

-Michigan's interest in hearing the case will not be
diminished by letting the plaintiff's using its own
-it is not too burdensome for D to be tried in forum state
-FLA is the most efficient venue to hear the dispute
-facts of purposeful availment counteract an
inconvenience argument, since the D have already
availed themselves to forum state
-Two Step Process of Contacts vs. Fairness:
(1)-What are the contacts?
-was a product placed in SOC?
-Are they continuous/systematic or
-Are contacts result of D's purposeful
avaliment and/or was it foreseeable that the
contacts could lead to suit in the forum?
-benefits from the forum state?
-Is the claim related/unrelated?
(2)Fairness elements:
-D's convenience/burden
-State's regulatory interests
-do several states have an interest in
hearing the case
-fair play and substantive justice?
-most efficient venue?

-International Shoe:
-regularly engaged in sales, employed WA
salesmen, shipped shoes to the state
-Keeton (Hustler Mag. Case)
-magazine sales within the forum, purposefully
availed, benefits from state

-The requirement may be satisfied if a product was injected

into the “stream of commerce.”
-Manufacturer delivers product into SOC. Product “arrives” in
forum state. Does forum state have PJ over manufacturer?
-Asashi, p.117 (plurality op.)
-The Supreme Court articulated the five factor test
for determining whether "traditional notions of fair
play" would permit the assertion of jurisdiction
over a foreign (meaning out-of-state) defendant:
1. What is the burden on the defendant?
2. What are the interests of the forum state?
3. What is the interest of the plaintiff?
4. Does the allowance of jurisdiction serve
interstate efficiency?

5. Does the allowance of jurisdiction serve
interstate policy interests?
-Under Asashi, is SOC enough?
-NO, O’ConnerSOC Plus. (phone call). Finds
that merely placing a product into SOC does
NOT equal purposeful availment, also need
minimum contracts in forum state
-Yes; Brennan SOC enough, no MC required
in forum state
-So, things to look for on purposeful availment…
-Did D reach out and voluntarily initiate contacts with the
forum state?
-Did D earn substantial revenue from contacts w/in forum
-Did D agree that forum state’s laws would apply (ie: a
choice of law provision in contract)?
-Were there offices, property, employees, agents, or
contractual obligations in forum state?
NOTE: Contract alone is not enough. BK. Evaluate
negotiations, terms of contract, dealing b/w the
-Did D’s products end up in the forum state?
-Did D market and advertise products in the forum
-Was product designed for market in the forum

(3)Is the claim related or does it arise out of D’s contacts in the
Related claim= specific jurisdiction. Fewer contacts required.
Unrelated claim= general jurisdiction. More contacts required.
-Helicopteros, p. 128.
NOTE: treated as general jurisdiction case, which resulted in no
PJ over the D
-P sued foreign D in TX, despite minimal contacts within forum
-while the claim was related to contacts, P argued for
general jurisdiction, instead of specific jurisdiction
-probably would have found PJ for D if correctly
argued for specific jurisdiction
-the contacts requirement is higher for general
jurisdiction than specific jurisdiction, so not enough
contacts to support general
-harder for P to assert general jurisdiction based on
"minimum contacts"

-Perkins, p. 125

Step 2: Fairness (D’s burden-Compelling case; though in a very strong,

unfair case, Stevens suggests start with Step 2 in Asashi)

(1)D’s convenience and burden
(2)What are the forum state’s regulatory interests in the dispute?
-state has interest in providing forum for its residence
-examples: Burger King/McGee
-state has interest in applying its own laws
-Examples: Burger King
-state has interest in providing forum for litigating claims about a
company incorporated in forum state
-example: Shaffer, Brennan dissent
(3)D’s benefits from forum state?
(4) What are the plaintiff’s interests in the forum state?
-Keeton(Hustler Magazine)
-D had sales benefits in the state, as well as benefits from the
state courts
-health/fire benefits from forum state while present
(5)What are the system’s interests in efficiency?
(6)What are “shared interests of the several states in furthering
fundamental substantive social policies”? (Doesn’t seem to be a
strong factor)
-Clash of law b/w forum state or another

2 Steps for Dealing with Notice:

(1)Statutory (based on Rule 4)
-Has service been carried out pursuant to the statute?
-Personal Service
-Inform someone of a suitable age of the summons
-Seek a waiver from the defendant
-Carrot and stick approach
-If D waives, then they get extra time to respond
-If P asks for waiver, and P denies, then they have to pay
for service
(2) Constitutional
-reasonably calculated to apprise them and afford them the opportunity to
provide a defense
-reasonable time
-reasonably conveyed

Additional Concepts/Definitions

Subject Matter Jurisdiction

-is concerned only with the nature of the dispute, not of the different parties
-must have BOTH personal jurisdiction and subject matter jurisdiction
-Example of types of Subject Matter Courts
-Probate court, small claims court, juvenile court

p.217 of the Supplement (Article III of the Constitution)

Under Section 2, what kinds of cases can the federal courts hear?
-Law and Equity (federal question)
-Laws of the United States and Treaties
-Cases affecting ambassadors, public ministers, council
-Admiralty, maritime
-U.S is a party
-controversies between two or more states
-between state and citizens of a different state
-between citizens of different states
-land grant jurisdiction
-between a state, and citizen of a state, and a foreign citizen

Three Types of Subject Matter Jurisdiction

1. Diversity: need complete diversity between the different parties of the
case(28 U.S.C. S 1332(a)-(c))
2. Federal Question: the central focus or issue of the case is a federal law or
dispute28 U.S.C. S 1331
3. Supplemental Jurisdiction: only applies for additional claims once already
have SMJ through federal question or diversity

(1)Federal Question
Based on statute 1331: Federal Question (green book p.235)
"The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States."

(1)Well Pleaded Complaint Rule (from Mottley )

-The Mottleys were a husband and wife who had been
injured in a train mishap.
-In exchange for agreeing not to hold the Railroad liable,
they were compensated with free passes from the
Louisville and Nashville Railroad company, which were to
be renewed annually.
-Several decades later, in 1906, the U.S. Congress banned
free passes in order to prevent their use as bribes
(FEDERAL LAW), and the railroad then refused to renew
the Mottley's passes.
-the Mottley's sued the railroad for breach of contract
-There was no diversity of citizenship, and no grounds for
federal question jurisdiction except that the case 'arose
under federal law' which is insufficient to satisfy the
federal question requirement.
-The only way a party can get federal question jurisdiction
is if the federal question arises in the plaintiff's well-
pleaded complaint.
-Federal Claim must be part of plaintiff's cause of action, not on
the part of an anticipated defense
(2) Holmes' test: federal law creates Cause of Action

-good inclusionary rule, but not an exclusionary rule
-comes from Merrell Dow Pharmaceuticals v. Thompson (1986)
-A violation of a federal statute, as part of a claim, is not
sufficient for the federal courts to claim original
jurisdiction if the statute does not create a private
remedies for violations of the statute.
- Rules
This case give several different tests to determine when a
case is covered under original jurisdiction for the federal
courts. These test include:
Holmes Test:
-The "vast majority" of cases that come within this
grant of jurisdiction are covered by Justice Holmes'
statement that a "`suit arises under the law that
creates the cause of action.'"
-Does the federal law actually create the
cause of action in the complaint?
-what does the majority decide is the important factor
that they are going to rely on in determining federal
question subject matter jurisdiction?
-intent of the legislature: if Congress had wanted these
cases tried in the federal courts, than they would have
given a right of action
-Brennan counters that the FDCA is a regulatory statute,
which never could create a cause of action
-counters that if intent is the most important
deciding factor (as it is according to the majority)
then: simply because there is no federal cause of
action does not mean that there is no federal
question subject matter jurisdiction
-then it would be based solely on the Holmes
test, and no room for the litigation provoking

(3)Federal issue in a state created cause of action (which would have

failed the Holmes' test)
-satisfies Mottley
-Grable test: (case where IRS seized land for back taxes and re-sold it at
auction; P sued new owners to quite title 5 years later, claiming gov’t did
not use proper notification)
(1) Whether the federal issue is actually and substantially disputed
(2) Federal forum may entertain without disturbing the federal and
constitutional balance between the federal and state courts
-volume, uniformity
-complexity of the federal law and expertise of the federal
judges for interpreting federal laws (Parody)
-Congressional intent
Litigation Provoking Problem:
Merrell Dow:

-Foreign plaintiff’s decided to file in US due to more leintent and
plaintiff-favored verdicts
-federal issue in a state cause of action
-does not apply to Mottley,b/c it was the anticipated defense of the D
-MUST be part of the plaintiff's claims
From Grabel:
Standard to Analyze the litigation provoking problem (.p295)
-Does a state-law claim necessarily raises stated federal issue,
actually disputed and substantial, which a federal forum may
entertain without disturbing any congressionally approved
balance of federal and state judicial responsibility."
-federal issue must arise from the state cause of action (not
from an anticipated defense)
-must raise a federal issue which is actually and substantially
Federal forum entertain without disturbing congressionally
approved balance

-based on 28 U.S.C. S 1332(a)-(c)
§ 1332. Diversity of citizenship; amount in controversy; costs (p.235)

Two Step Approach:

(1)Citizen of different states
Rules for Diversity Jurisdiction Under citizens of Diverse
(1) Citizen of different states, must be a US citizen with domicile
in a state
(2)Citizen means domicile
(3)Domicile is the place that you intend to return
(4) to change domicile, you must have intent to remain there
(being a resident somewhere is not merely enough)
(5) Complete diversity
(6) federal law governs
(7) domicile is decided from time of filing
(8) Parties invoking subject matter jurisdiction must carry the
burden of proof
-look to Mas v. Perry:
P: Mas couple
-Mr. Mas was a citizen of France, so subject matter jurisdiction
-Mrs. Mas, who had domicile in Mississippi

-the couple were both graduate students a LSU, so had
residency in Louisiana
D: Perry, the Louisiana land-lord of the P who was accused of watching
the P through two sided mirrors in their apartment
Facts for Diversity Jurisdiction in federal court:
-if Mrs. Mas is a citizen of Louisiana, then there would be no
diversity jurisdiction
-Court Ruled that she had domicile in Mississippi (where her
parents lived and she had grown up), despite the fact that she
did not intend to return to Mississippi
-to change domicile, you have to take up a new residence and have
-The Mas's do not have intent to remain in Louisiana, so Mrs.
Mas's domicile remains in Mississippi
-most recent domicile remains with you until you have
intent to remain in a new location
-every federal claim must satisfy subject matter jurisdiction, or else
it must be tried in state court
-How do we determine the citizenship of corporations?
-look at statute 1330-c
-Corporations have two states of citizenship:
-the state in which it is incorporated
-the place where it has its principle place of
-"nerve center" test: where is the corporation
making its decisions and have overall control
-"corporate activities" test: where production
or service activities principally are located
-"total activities test"

(2)Exceeds $75K
-rules from Whitchurch case
- A.F.A. Tours (P) claimed that a former tour guide
misappropriated confidential info, but the district court
dismissed the claim for failure to satisfy the amount-in-
controversy requirement.
- The amount-in-controversy requirement for federal
diversity jurisdiction is satisfied if the P makes a good
faith estimate that the value of the claims, including
actual and punitive damages and the value of injunctive
relief, meets the required amount.
-amount in controversy is based on the Plaintiff's claims, as
long as it is in good faith

-need a legal certainty that the claim is less than $75K in order
for the court to dismiss
-the amount in controversy is measured from the time at which
the complaint is filed
-punitive damages count for the amount in controversy
-Aggregation rule (for adding up claims)
-for 1 P and 1 D, then just add up all of the claims
-for 1 P and 2 D, cannot add P claims together unless the
Ds are jointly liable
-Multiple Plaintiffs and 1D, cannot add up claims unless
there is a common, undivided interest (VERY RARE, does
not include torts claims)

Two exceptions for diversity jurisdiction (if the 2 basic elements are met)
(1) Domestic relations
-divorce, alimony, child custody
(2)Probate: dealing with wills and settling estates
-ex: Ann Nicole Smith case (Marshall v. Marshall)
-claim was for "tortuous interference with a gift", as her late
husband's son was refusing to honor promise her husband had
made to give her money
-b/c it was not technically a probate case, then it meets diversity
requirements and can be brought in federal court

Supplemental Jurisdiction
How do we approach supplemental jurisdiction?
(1) Subject matter jurisdiction over a claim (original claim)?
-identify if it is a federal question, or if it is diversity
-28 U S C 1332 (a) (1) requires complete diversity and an
amt in controversy exceeding $75,000.
-Kroger: neither judicial economy nor convenience of
litigants can defeat the complete diversity requirement
(2)Common Nucleus of Operative Fact/ S. 1367 (a)?
-Comes from the Gibbs case: Mining labor union sued by mine
superintendent due to state and federal claims arising from a mine
-Common Nucleus of Operative Fact Test: do the federal
and state claims arise from a common nucleus of fact
-this deals with the constitutional aspects (Art. III, Section
-this makes the claim into one "case" which thus
grants federal subject matter jurisdiction
-What is the court looking for to determine if there is a
"common nucleus of operative fact"?

-if the two claims are arising from the same set of
-if the court satisfies the "common nucleus of operative
fact", then supplemental jurisdiction is discretionary, left up
to the court
Several factors where the court should DECLINE to
such a supplemental claim:
-needless decision of state law
-if the state issues predominate over the federal
-if federal claim dismissed by trial court

(3) look 1367(b) to see if supplemental jurisdiction is removed

by a violation of Section 1332
Key elements:
(1)diversity case of the original claim?
-if answer No, then based on a federal claim
(2) is the claim added by the plaintiff?
(3) is there a violation of section 1332?
(4)Does Exxon exception apply?
-deals with the amount in controversy is less than $75K
(does not work for citizens from the same state)
-One defendant
-works for "additional Plaintiffs"

Denying supplemental jurisdiction:

Executive Software case:
-District Court failed to properly invoke a section 1367(C) category in
exercising its discretion to decline pendent claims
-Section 1367 (C) categories to deny supplemental jurisdiction:
(1) claim raised a novel or complex issue of state law
(2) state law claim "substantially predominates"
(3)district court has dismissed all other claims to which it had
(4)"in exceptional circumstances, there are other compelling
reasons for declining jurisdiction"
-should be based on a reason that declining jurisdiction
"best accommodate[s] the values of economy,
convenience, fairness, and comity."
-these circumstances should be "quite unusual"
-Can a district court have other reasons outside of 1367 (c) (4)
to deny federal jurisdiction?
-the appeals court says that the court can decline
supplemental jurisdiction ONLY if it is according to section
(c) (1)-(3)

-Two step tested needed to decline (p.306)
(1) factual predicate
-must plug the facts into the subcategories of
reasons for removal according to section (c) (1)-
(2)Values inquiry:
-should be based on a reason that declining
jurisdiction "best accommodate[s] the values of
economy, convenience, fairness, and comity."
-the (c) (4) is a values inquiry in itself, and should be used
"quite unusually"
-interpreted similarly to (c) (1)-(3)
-must show:
-exceptional circumstances
-compelling reasons for declining

Removal and Remand Under Subject Matter Jurisdiction

-Removal means the case is removed from state court to federal court
-based on Statute 1441
-1446 gives the procedures to follow
-defendants must start removal petition, and all defendants must agree
-Plaintiff can NOT remove the case (Shamrock case)
-case may be removed to the federal court in the district for the geographical
area for where the action is pending

-Remanding a case when is when the case is sent back to state court (where it was
original started, then sent to federal court); based on statute 1447
Remand orders CANNOT be appealed,
-the exception is civil rights cases
-If it is started in federal court, it CANNOT be remanded to state court
Removal and remand are only for actions which start in state court
(does not apply to case that start in federal court)

-Borough of West Mifflin v. Lancaster (1995); p.318

-D sought a writ of mandamus claiming that the district court judge
Lancaster had exceeded authority when he remanded entire case back
to state court, based on USC Section 1441(c)
-Under 1441(c) can only remand case when the claims are
"separate and independent"
-Is claim proper under supplemental jurisdiction (under
-S.1367: Common nucleus of operative fact (CNOF)
-Cannot remand based on 1441(c)
-Can the case be removed when there is not a CNOF?
-if it is joined to a removable claim, then the entire case
can be removed
-if it is removed and there is an unrelated claim,
then the district court has the discretion to remand

the state law predominated cases back to state
-CANNOT send back the federal question claim, since
it has original jurisdiction over

Where are cases removed to?
-to the federal district court for where the geographical place where
the case is pending
General venue statute 1391
Venue is simply statutory (no constitutional question)
-This has nothing to do with court's authority over the D (as PJ) but has
to do with where the lawsuit should be heard.

-The focus of venue is about protecting the defendant from an unfair

venue, limit's plaintiff's choice

Bates v. C & S Adjusters, Inc. (1992); p.337

-P defaulted on his debt and D, a NY collection agency, sent letter
to P.
-P incurred the debt in Pennsylvania, but later moved to NY.
-D’s letter addressed to P’s Pennsylvania’s residence but from
there, redirected to P’s NY residence.
-P brought claim against D under federal Fair Debt Collection
Practices Act in NY district court.
-SMJ is based on a federal question
-The NY district court dismissed the lawsuit for improper venue. P
-Ct. of Appealed ruled that NY was proper venue
-Under 28 U.S.C. § 1391 (b)(2), venue is proper in a
judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred.
Why is 28 U.S.C. § 1391 (b)(2) used?
-cannot used 1391(c) b/c it is based on PJ at the time
of the filing (and there was no PJ at this time, b/c the
D had not consented yet)
-not focused on the D's actions, but instead on the overall

-Does a case have to dismiss the claim if it is filed in an

improper venue?
NO , look at statute 1406
-the court has the option of transferring the
claim to an appropriate venue (another
federal district court) or dismiss

Hoffman v. Blaski (1960), p.341

∆ can only give consent to waive at time case is filed...after
filing it is too late**
-patent infringement that P Blaski brought in the northern district of
-D's file motion to transfer to the northern federal district of Illinois
-Blaski argues against this change of venue, as there is no PJ over
the defendant's in Illinois
How is this relevant to venue?
Statute 1404: venue is proper, but for reasons of
convenience and justice, the case should be
transferred to another venue in which the action
could/might have been brought
-need to look to PJ
-the TX district court does not heed this argument,
and transfers the case to the federal court in Illinois
-Blaski moves to get the case transferred back
to Illinois, under a petition for mandamus
-What do the D argue against Blaski's petition for mandaeumus?
-D's argue that they consent to PJ in Illinois
-the Supreme Court does not accept this argument, b/c venue must
take into account to where the P can file, not where the D consents
-Brennan: not fair
-statutory language must show that it is convenient for all
parties AND in the interest of justice
-Plaintiff looked at different venue choices, and correctly selected TX
-What should D's be required to show to get a proper venue
-questions of cost, extreme inconvenience, bias
-why might a TX jury pool be biased against the D?
-TX is known for giving big sums of $ to plaintiff's

-What law should be applied once a case is transferred?

-the law of Texas
Van Dusen rule(p.346 note 4):
-the law of transfer courts: the law applied in the first court follows the
case when the venue is changed due to a transfer
-what is the purpose for the Van Dusen rule?
-To protect the P from letting the D manipulate the system

Forum Non- Conveniens

Forum non conveniens:
the doctrine that an appropriate forum-even though competent under the
law- may divest itself of jurisdiction if, for the conveniences of the litigants
and witnesses, it appears that another forum in which the action might
have also been properly brought in the first place

-for actions that cannot be transferred, as the more convenient venue
is in another jurisdiction, such as another state or a foreign

Similarities with transfers:

-both waiveable
-prevent the plaintiff from bringing suit in an inconvenient forum for
-Common law doctrine, NOT statutory
-result is dismissal, NOT transfer

Factors to be considered in forum non convenienes

-private interest of the litigants
-relative ease of access to sources of proof
-availability of compulsory process for
attendance of unwilling
-the cost of obtaining willing witnesses
-possibility of views of premise
-all other factors that make trail of a case "easy,
expeditious, and inexpensive"
-look at D's jointer options
-public interests
Piper Aircraft v. Reyno
-Court can impose limitations or guidelines when dismissing a case for forum non-
conveniens, such as requiring that the defendants waive personal jurisdiction in
another jurisdiction
-such as in Scotland in this case

Law Applied in Federal Courts-Erie Doctrine

Erie Doctrine:
-what law applies in dispute when there is diversity jurisdiction in federal
-not federal question, b/c then you would just use federal law
-also applies to what law for supplemental jurisdiction cases

The Laws of the several states shall be regarded as the rules of the decision in
the federal courts

Problems created by Swift:

-(1)Forum shopping
-Black & White Taxi v. Brown & Yellow Taxi
-two KY
-(2)Lack of Uniformity
-state court judges are not developing a body of transcendental law

-(3)Favors non-residents

Basic Erie Principle:

-(1)Courts do not have the authority to create general federal
common law in areas of traditionally state law
-i.e.: not for negligence, but can for federal admiralty
-Courts Can create federal common law based on the categories found in
Article I Section 8
-What area can federal courts create common law even if a diversity
-(2)Federal Courts Should apply state substantive laws
-examples of substantive law:
-tort claim
-contracts and defenses to contract claims
-caps on damages
-if its procedural, apply federal law
(3) Substantive law= law that determines the outcome
-procedural law cannot determine the outcome
-in this case, a statute of limitations is outcome determinative
-"outcome determinative" can apply to most things if stretched
-"outcome determinative test" from York
-if a judge or jury decides this case would be "outcome determinative" for
this case
-federal courts should consider if important federal policy issue

Hanna Problem: federal law directly on point; direct conflict between federal
and state rule
-When this kind of direct conflict, the federal rule wins
-b/c of the Supremacy Clause

The Rules of Decision Act

-provides that federal courts must apply state law except where otherwise
required by the U.S. Constitution, laws of the United States, or treaties.
-Thus, cases tried in federal court based on a federal question are
decided by federal law.
-But, cases tried in federal court based on diversity are less clear as to
what law to apply
Swift v. Tyson (1842) interpreted the Rules of Decision Act to
require federal courts to apply state constitutional and
statutory law but not state common law.
-Swift doctrine permitted federal judges to displace state
common law with federal general common law in
diversity cases
-Led to problems with forum shopping and irregular
decisions and an un-unified federal common law

Erie Doctrine; “Substance vs. Procedure “ Test
-In Erie RR v. Tompkins, the Court ruled that there is no federal common law
-the Rules of Decision Act to not give federal courts the power to
determine substantive common law
Erie Doctrine: in federal diversity cases, substantive issues would be
governed by state law, and procedural issues would be governed by federal law

“Outcome Determination” Test

-in Guaranty Trust Co. v. York, Court determined that the outcome in diversity
cases should be the same as if the issue was being tried at the highest court
within the state
-therefore, an issue that seems as it would be procedural is actually
substantive if it affects the outcome, so APPLY STATE LAW
-such as statutes of limitations
Substantive law= law that determines the outcome
-procedural law cannot determine the outcome
-in this case, a statute of limitations is outcome determinative
-"outcome determinative" can apply to most things if stretched
State law controls if the choice between state or federal law could
be outcome determinative in the case

“Balancing of Government Interests” Test

-In Byrd v. Blue Ridge Rural Electric, the state and federal laws differed as to
whether the defendant was entitled to a jury trial.
-The Court ruled that in cases where there are competing interests
between the state and federal governments, the federal government’s
interests will prevail
Balancing the governmental interests behind the rules contending
for application
-federal interests will prevail

Federal Rules Control when state law conficts

-Hanna v. Plumer (1965) competing federal and state procedural rules
-Court ruled that federal procedural rules are not overridden by state
law or policy.

-Erie does not control when there exists an applicable federal rule
that conflicts with a state law or policy
However, when no conflict exists, Erie Doctrine controls
-Walker v. Armco Steel Corp. : Court rules that favor towards applying
federal procedural rules only applies when the federal rule
actually applies

-Once the court determines that state law applies, how does the court determine
which state law applies
-remember that these are DIVERSITY cases, so which state law should decide
out of possible laws?
-Federal courts are going to apply the "conflicts of law rules"
Apply the state law of the state where they are sitting (forum state)

-Converse Erie: state court, question of what law
-federal law will apply to substantive issues,
-state law will apply to procedural issues

The Complaint

Rule 7. Pleadings Allowed; Form of Motions and Other Papers

(a) Pleadings.
Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.

Rule 8. General Rules of Pleading

(a) Claims for Relief.
A pleading that states a claim for relief must contain:
(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) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in
the alternative or different types of relief.
(e) Construing Pleadings.
Pleadings must be construed so as to do justice.

Rule 9. Pleading Special Matters

(b) Fraud or Mistake; Condition of Mind.
In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person's mind may be alleged

Rule 10. Form of Pleadings

(a) Caption; Names of Parties.
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.
(b) Paragraphs; Separate Statements.

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.
(c) Adoption by Reference; Exhibits.
A statement in a pleading may be adopted by reference elsewhere in
the same pleading or in any other pleading or motion. A copy of a
written instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.

Complaint: the initial pleading in a lawsuit, filed by the plaintiff

Essential elements of a complaint:

(1) Jurisdiction: “a short and plain statement of the ground upon
which the court’s jurisdiction depends…”
(2) Statement of a claim: “a short and plain statement of the
claim showing that the pleader is entitled to relief”
(3) Relief: “a demand for judgment for the relief the pleader seeks”

-not a lot of detail is required, as that is what discovery is for

Denny case:
-if you are bringing a securities fraud case, Congress has added additional
heightened standards beyond Rule 9 (b)
Objective of Rule 9(b): "heightened pleading standard"
Prevents fraud, protects financial institution's reputation,
provides notice to defendant
Required under Rule 9(b):
-identify the circumstances under which the fraud occurred
-who?, what?, when?, where?, and how?
-Court Ruled that the plaintiff had satisfied the standard under
Rule 9(b)
-Plaintiff's claims is valid, as Fed.R.Civ.P. 8 requires a
short and plain statement of the claim which is
simple, concise and direct
-Rule 9(b) does require slightly more notice than would be
forthcoming under Rule 8,but the rule is met as there was
sufficient identification of the circumstances constituting the
fraud so that the defendant can prepare and adequate answer to
the allegations

Swierkiewics v. Sorema N.A. (2002), p.517

-racial discrimination case, defendant moved to dismiss for failure to state a
Rule 8 states claim must include "short and plain statement" of
the claim showing that you are entitled to relief

- Requirements for establishing a prima facie case for employment
discrimination, need not prove more facts than necessary to pass
muster under FRCP 12(b)(6).

-The need at the pleading stage for allegations plausibly suggesting
(not merely consistent with) agreement reflects the
threshold requirement of Rule 8(a)(2) that the “plain
statement” possess enough heft to “sho[w] that the pleader is
entitled to relief.” A statement of parallel conduct, even
conduct consciously undertaken, needs some setting
suggesting the agreement necessary to make out a § 1 claim.
-must show plausibility more than just conceivability or
formulaic recitation
-give facts that plausibly suggest the agreement
-more than just labels and conclusions
-more than a "formulaic recitation"
-not moving to Rule 9 requiring specific facts, but must show
sufficient facts such that the complaint as a whole makes it plausible
for a claim for relief

Twombley Problem:
How is the plaintiff going to have these facts, when these are
usually gathered during discovery?
-comes down as anti-trust, but has already been widely applied outside
anti-trust cases

Responding to the Complaint

Rule 12. Defenses and Objections: When and How Presented; Motion for
Judgment on the Pleadings; Consolidating Motions; Waiving Defenses;
Pretrial Hearing
(a) Time to Serve a Responsive Pleading.
(1) In General.
Unless another time is specified by this rule or a federal statute, the
time for serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 20 days after being served with the summons and
complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days
after the request for a waiver was sent, or within 90 days
after it was sent to the defendant outside any judicial
district of the United States.
(B) A party must serve an answer to a counterclaim or crossclaim
within 20 days after being served with the pleading that states
the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 20 days after being
served with an order to reply, unless the order specifies a different
(2) United States and Its Agencies, Officers, or Employees Sued in an Official
The United States, a United States agency, or a United States officer or
employee sued only in an official capacity must serve an answer to
a complaint, counterclaim, or crossclaim within 60 days after service
on the United States attorney.
(3) United States Officers or Employees Sued in an Individual Capacity.
A United States officer or employee sued in an individual capacity for
an act or omission occurring in connection with duties performed on
the United States' behalf must serve an answer to a complaint,
counterclaim, or crossclaim within 60 days after service on the
officer or employee or service on the United States attorney, whichever is later.
(4) Effect of a Motion.
Unless the court sets a different time, serving a motion under this rule
alters these periods as follows:
(A) if the court denies the motion or postpones its disposition
until trial, the responsive pleading must be served within
10 days after notice of the court's action; or
(B) if the court grants a motion for a more definite statement,
the responsive pleading must be served within 10 days after
the more definite statement is served.
(b) How to Present Defenses.
Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following
defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a
responsive pleading is allowed. If a pleading sets out a claim for relief that
does not require a responsive pleading, an opposing party may assert at trial any
defense to that claim. No defense or objection is waived by joining it with one or
more other defenses or objections in a responsive pleading or in a motion.
(c) Motion for Judgment on the Pleadings.
After the pleadings are closed — but early enough not to delay trial — a party
may move for judgment on the pleadings.
(d) Result of Presenting Matters Outside the Pleadings.
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.
(e) Motion For a More Definite Statement.

A party may move for a more definite statement of a pleading to which a
responsive pleading is allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response. The motion must be made before
filing a responsive pleading and must point out the defects complained of and the
details desired. If the court orders a more definite statement and the order is
not obeyed within 10 days after notice of the order or within the time the court
sets, the court may strike the pleading or issue any other appropriate order.
(f) Motion To Strike.
The court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the
pleading or, if a response is not allowed, within 20 days after being served
with the pleading.
(g) Joining Motions.
(1) Right to Join.
A motion under this rule may be joined with any other motion allowed
by this rule.
(2) Limitation on Further Motions.
Except as provided in Rule 12(h)(2) or (3), a party that makes a motion
under this rule must not make another motion under this rule raising a
defense or objection that was available to the party but omitted from its
earlier motion.
(h) Waiving and Preserving Certain Defenses.
(1) When Some Are Waived.
A party waives any defense listed in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the circumstances described in
Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment
allowed by Rule 15(a)(1) as a matter of course.
(2) When to Raise Others.
Failure to state a claim upon which relief can be granted, to join a
person required by Rule 19(b), or to state a legal defense to a claim
may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of Subject-Matter Jurisdiction.
If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.
(i) Hearing Before Trial.
If a party so moves, any defense listed in Rule 12(b)(1)-(7) — whether made
in a pleading or by motion — and a motion under Rule 12(c) must be heard and
decided before trial unless the court orders a deferral until trial.

Rule 8. General Rules of Pleading

(b) Defenses; Admissions and Denials.
(1) In General.

In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim
asserted against it; and
(B) admit or deny the allegations asserted against it by an
opposing party.
(2) Denials — Responding to the Substance.
A denial must fairly respond to the substance of the allegation.
(3) General and Specific Denials.
A party that intends in good faith to deny all the allegations of a
pleading — including the jurisdictional grounds — may do so by a
general denial. A party that does not intend to deny all the allegations
must either specifically deny designated allegations or generally
deny all except those specifically admitted.
(4) Denying Part of an Allegation.
A party that intends in good faith to deny only part of an allegation
must admit the part that is true and deny the rest.
(5) Lacking Knowledge or Information.
A party that lacks knowledge or information sufficient to form a belief
about the truth of an allegation must so state, and the statement has the
effect of a denial.
(6) Effect of Failing to Deny.
An allegation — other than one relating to the amount of damages — is
admitted if a responsive pleading is required and the allegation
is not denied. If a
responsive pleading is not required, an allegation is considered denied
or avoided.
(c) Affirmative Defenses.
(1) In General.
In responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense, including:
· accord and satisfaction;
· arbitration and award;
· assumption of risk;
· contributory negligence;
· discharge in bankruptcy;
· duress;
· estoppel;
· failure of consideration;
· fraud;
· illegality;
· injury by fellow servant;
· laches;
· license;
· payment;
· release;
· res judicata;
· statute of frauds;
· statute of limitations; and
· waiver.
(2) Mistaken Designation.

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.
(d) Pleading to Be Concise and Direct; Alternative Statements;
(1) In General.
Each allegation must be simple, concise, and direct. No technical form
is required.
(2) Alternative Statements of a Claim or Defense.
A party may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or
defense or in separate ones. If a party makes alternative
statements, the pleading is sufficient if any one of them is sufficient.
(3) Inconsistent Claims or Defenses.
A party may state as many separate claims or defenses as it has,
regardless of consistency.

Responding to a Complaint:
Two options:
(1) Answer the complaint: Rule 8-General Rules of Pleading
(2) File a motion under Rule 12: Defenses and Objections

How much time does a Defendant get to respond?

Rule 12a1: 20 days, unless service is waived, which gives 60 days
(unless outside of US- gets 90 days)
What is an answer? Defendant's response to plaintiff's complain. It is a
Possible response to a plaintiff's complaint
-entire or part
-CANNOT deny entire claim unless believe in good faith that
none of the complaint is true
-Court frowns on overall denials
-lack sufficient information to respond -Rule 12b5
Effect of this rule:
-equals a denial
-important because it removes the issue from litigation

-What if the defendant fails to deny something?

-it is treated as an admission

How should a defendant respond to personal jurisdiction claims in Federal

-Rule 12b: Motion to Dismiss
(3)improper venue

(5)Service of Process
(6)Failure to state a claim (known as 12b6)
(7)Failure to join a party under Rule 19

-Do separate motions have to be filed, or can the ground be joined?

-NO, for efficiency, they should be joined together
-Rule 12(g)

-Can we answer first, then file a motion later?

NO, either file an answer OR a motion
-must raise any of the 12b motions before filing an answer

Which defenses are waived if they are failed to include in the 12b motion?
-Process, Service of Process, PJ, Venue
-Specified in Rule 12(h)

-what about failure to state a claim and failure to join a party under Rule 19?
-Under Rule 12(h)(2), defendant can raise these issues at any time before the
final judgment
-What about SMJ?
-any time, even during an appeal -NEVER WAIVABLE
-Rule 12(h) 3

American Nurses: motion to dismiss for failure to state a claim case

-complaint should be a "plain and short statement of the claim" but
often this is not the case, as plaintiff's will try to plead the facts
in an attempt to persuade the court of its opinion, which is the case
here, as the complaint is more than 20 pages long with a 100 page
-a complaint cannot be dismissed merely because it includes invalid
claims along with a valid one.
-The Conley v. Gibson rule that "a complaint should not be dismissed
unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief"
should not be taken literally, as it would permit dismissal only in
frivolous cases
-A complaint is not required to allege all, or any, of the facts logically
entailed in the claim
-A plaintiff does not have to plead evidence
What is the Court looking for from the Plaintiff's complaint?
-claim under title VII protects against "intentional discrimination" based
on someone's gender
-claim not stated under title VII if it is not intentionally motivated based
on the gender of the employee
-possible claim under the Equal Pay Act, to which comparable worth
would state a claim
-claim is not dismissed for failure to state a claim just because it
includes things that do not state a claim (ie: all of the comparable
worth stuff)

Under Rule 12(a), you need to include jurisdiction facts, ect.

Rule 12(e): -can file a motion for a more definite statement

-The court mentions this option
-requires plaintiff to give more information

More options for motions:

Rule 12(f) Motion To Strike.
The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a
response is not allowed, within 20 days after being served with the pleading.
-motions under 12(f) are viewed with disfavor and infrequently granted

Rule12c: Motion for Judgment on the Pleadings

-deals with summary judgments, ect

(2) Mistaken Designation.

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.
Affirmative defenses are two types of pleadings:
(1) ones that admit the allegations of the complaint but suggest some other reason
why there is no right of recovery
(2) ones that concern allegations outside the plaintiff's prima facie case that the
defendant therefore cannot raise by a simple denial of the answer

-Affirmative defenses are the contrast to the failure to state a claim

-some other reason, not in the complaint, which states why the plaintiff should lose

Amending the Complaint

Rule 15. Amended and Supplemental Pleadings
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. OF RIGHT
-A party may amend its pleading once as a matter of course:
(A) before being served with a responsive pleading; or
(B) within 20 days after serving the pleading if a responsive
pleading is not allowed and the action is not yet on the trial
-a motion to dismiss is not a responsive pleading
(2) Other Amendments. CONSENT/OF COURT
-In all other cases, 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.

-Defendant can use this to amend their answer within 20
-Standard: court should freely give leave so long as justice
is served
(3) Time to Respond.
Unless the court orders otherwise, any required response to an
amended pleading must be made within the time remaining to
respond to the original pleading or within 10 days after service
of the amended pleading, whichever is later.
(b) Amendments During and After Trial.
-must get the court's permission
(1) Based on an Objection at Trial.
-If, at trial, a party objects that evidence is not within the issues
raised in the pleadings, the court may permit the pleadings to
be amended.
-The court should freely permit an amendment when doing so
will aid in presenting the merits and the objecting party fails to
satisfy the court that the evidence would prejudice that party's
action or defense on the merits.
-The court may grant a continuance to enable the objecting
party to meet the evidence.
Court will ask if this aids in presenting in the case?
-Court will allow it if id doesn’t show prejudice
(2) For Issues Tried by Consent.
-When an issue not raised by the pleadings is tried by the
parties' express or implied consent, it must be treated in all
respects as if raised in the pleadings.
-A party may move — at any time, even after judgment — to
amend the pleadings to conform them to the evidence and to
raise an un-pleaded issue.
-But failure to amend does not affect the result of the trial of
that issue.

Rule 15(c) Relation Back of Amendments.

(1) When an Amendment Relates Back.
An amendment to a pleading relates back to the date of the
original pleading when:
(A) the law that provides the applicable statute of limitations
allows relation back;
(B) the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out — or attempted
to be set out — in the original pleading; or
(C) the amendment changes the party or the naming of the
party against whom a claim is asserted, if Rule 15(c)(1)(B) is
satisfied and if, within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought in
by amendment:

(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party's identity.
(2) Notice to the United States.
When the United States or a United States officer or agency is added
as a defendant by amendment, the notice requirements of Rule 15(c)
(1)(C)(i) and (ii) are satisfied if, during the stated period, process was
delivered or mailed to the United States attorney or the United
States attorney's designee, to the Attorney General of the United States,
or to the officer or agency.

Rule 7. Pleadings Allowed; Form of Motions and Other Papers

(a) Pleadings.
Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.

Difference between amending under Rule15a and rule 15a

Amending under 15a2:
-have consent of other party or discretion of the court
-court should give allow
Foman rule: leave should be freely given unless: undue delay, bad faith,
repeated failures to cure, futility, undue prejudice to the given party,
dilatory motive
Amending under 15b: Amendments During and After Trial.
-Variance: evidence has come in that does not conform to the
-Standard under 15b:
-consent (other side can expressly consent on the issue)
-how do we determine, as court, if there is implied consent
-Standard: did the party have actual notice regarding
this un-pleaded issue, and were they given adequate
time to argue against this new issue
-look at the other side's behavior, such as
objections, or whether evidence is presented
against this issue, ect.
-look to the Moore v. Moore case
-side wishing to amend must show that it is not with
prejudice and that it aides the merits of the case

-Criminal suspect suing police officers for injuries received during arrests,; wants to
amend complaint to identify actual officers
The court noted that while Fed. R. Civ. P. 15(c) permits amendments which
change a mistaken name in the original complaint, it did not permit a plaintiff
to replace "unknown" parties with actual parties. Thus, the court held that the
criminal's amended complaint did not relate back under Rule 15(c) because
the amendment did not correct a "mistake," but rather corrected a
lack of knowledge at the time of the original complaint. The criminal's
complaint therefore was dismissed.
-what standard does15 c1 do:
(1) same transaction as the original complaint--> satisfied here
(2) time limit: 120 days after filing of original complaint--> also satisfied
(3) notice: new D's-->satisfied here
(4) but for mistake--> NOT met here
-using a "John Doe" plaintiff does not account to a mistake
-this step was missed because they were about to run out of time due
to the statutes of limitation
(5) new D's knew that they were the people likely named in the original

Foman rule: leave should be freely given unless: undue delay, bad faith, repeated
failures to cure, futility, ect.

Deterring Frivolous Complaints

Rule 11:
-Discretionary, can be imposed on lawyers, law firms, or on the actual
-Signature of attorney is what triggers Rule 11
-What sort of things require signature?
-complaints, motions, pretty much everything that you file with the
-Why such a focus on the signature?
-increases awareness and accountability
-when is an affidavit required?
-if by statute

(b) Representations to the Court.

By presenting to the court a pleading, written motion, or other paper
— whether by signing, filing, submitting, or later advocating it — an
attorney or unrepresented party certifies that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances:

(1) it is not being presented for any improper purpose,

such as to:
-cause unnecessary delay, or

-needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are

-warranted by existing law or
-by a non-frivolous argument for extending, modifying, or
reversing existing law or for establishing new law;

(3) the factual contentions have:

- evidentiary support or,
-if specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery; and

(4) the denials of factual contentions are warranted on the evidence

or, if specifically so identified, are reasonably based on belief or a
lack of information.

-point in time is based on the time of filing, but is a continuing obligation,

which must be amended if new information comes up
-need to file an amendment if you realize that something is wrong
with you complaint
-likely that court will grant the amendment under the Foman

How do you respond to the other party who you believe has made a
Rule 11 mistake requiring sanctions
-Safe Harbor provision that allows the party 21 days to remove the
complaint, or time to amend

(c) Sanctions.
(1) In General.
If, after notice and a reasonable opportunity to respond, the court
determines that Rule 11(b) has been violated, the court may impose
an appropriate sanction on any attorney, law firm, or party that
violated the rule or is responsible for the violation. Absent
exceptional circumstances, a law firm must be held jointly
responsible for a violation committed by its partner, associate, or
(2) Motion for Sanctions.
A motion for sanctions must be made separately from any other
motion and must describe the specific conduct that allegedly violates
Rule 11(b). The motion must be served under Rule 5, but it must not
be filed or be presented to the court if the challenged paper, claim,
defense, contention, or denial is withdrawn or appropriately corrected
within 21 days after service or within another time the court sets. If
warranted, the court may award to the prevailing party the
reasonable expenses, including attorney's fees, incurred for the
(3) On the Court's Initiative.

On its own, the court may order an attorney, law firm, or party to
show cause why conduct specifically described in the order has not
violated Rule 11(b).
(4) Nature of a Sanction.
-A sanction imposed under this rule must be limited to what suffices
to deter repetition of the conduct or comparable conduct by others
similarly situated. The sanction may include:
- nonmonetary directives;
-an order to pay a penalty into court;
-or, if imposed on motion and warranted for effective
deterrence, an order directing payment to the movant of part or
all of the reasonable attorney's fees and other expenses directly
resulting from the violation.
-The sanction must be limited to what is necessary to deter
conduct by either the particular lawyer or other lawyers
(5) Limitations on Monetary Sanctions.
The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule
11(c)(3) before voluntary dismissal or settlement of the claims
made by or against the party that is, or whose attorneys are, to
be sanctioned.
(6) Requirements for an Order.
An order imposing a sanction must describe the sanctioned conduct
and explain the basis for the sanction.

Multiple Claims
Claims, Cross Claims, and Counter Claims
Two Step Inquiry:
(1) Rule: Does the Rule allow joinder of the party/claim?
(2) Subject Matter Jurisdiction
-Federal Question?
-Supplemental Jurisdiction (don’t go straight to supplemental,
first look to the other two options (diversity or SMJ))

Rule 18. Joinder of Claims

(a) In General.
A party asserting a claim, counterclaim, cross-claim, or third-party
claim may join, as independent or alternative claims, as many claims
as it has against an opposing party.
-no limit on the claims that the plaintiff can bring against the defendant

What about claim joinder by a defendant?

-What is a counterclaim?
-Claim asserted against an opposing party

-typically a claim by a defendant against the plaintiff

Rule 13. Counterclaim and Cross-claim

(a) Compulsory Counterclaim.
(1) In General.
A pleading must state as a counterclaim any claim that
— at the time of its service — the pleader has against
an opposing party if the claim:
(A) arises out of the transaction or occurrence that is
the subject matter of the opposing party's claim; and
(B) does not require adding another party over whom
the court cannot acquire jurisdiction.
(2) Exceptions.
The pleader need not state the claim if:
(A) when the action was commenced, the claim was
the subject of another pending action; or
(B) the opposing party sued on its claim by attachment
or other process that did not establish personal
jurisdiction over the pleader on that claim, and the
pleader does not assert any counterclaim under this
(b) Permissive Counterclaims.
A pleading may state as a counterclaim against an
opposing party any claim that is not compulsory.
(g) Crossclaim Against a Coparty.
A pleading may state as a crossclaim any claim by one
party against a coparty if the claim arises out of the
transaction or occurrence that is the subject matter of
the original action or of a counterclaim, or if the claim
relates to any property that is the subject matter of
the original action. The crossclaim may include a claim
that the coparty is or may be liable to the
crossclaimant for all or part of a claim asserted in the
action against the crossclaimant.
(h) Joining Additional Parties.
Rules 19 and 20 govern the addition of a person as a
party to a counterclaim or crossclaim.

-against co-parties (usually co-defendants)
-not compulsory
-Rule 13(g)
Standard under 13(g)
-must arise out of the same transaction or occurrence

Permissibe & Compulsory Joinder of Parties

Big picture two steps:

(1) Check the Rule to see it the rule allows joinder
(2) Subject Matter Jurisdiction
-can go back to old worksheets and see if

Rule 20: Permissive Joinder

(1) Joint relief OR same transaction or occurrence
(2) Common question of law or fact

Rule 19: Required Joinder of Parties

(1) is the absent party needed for adjudication (necessary)?
-Look to see if:
-Court can give complete relief without AP
-fairness to the absent party: harm to AP interest
-speculate outcomes to see if the litigation will harm the
absent party if not included
-Fairness to Defendants: AP interest subjects D to
multiple/inconsistent obligations
-joint tortfeasors are not necessary parties
(2) Is joinder feasible?
-venue (absent party has to raise the argument of venue)
-if joinder is feasible, then the court issues a court order
(3) if answer 2 "No, joinder not feasible" then do we proceed without AP or
-4 Factors:
(1) prejudice to AP, P, or D
(2) shape judgment to lessen prejudice
(3) Will Judgment without AP will be adequate?
(4) Does P have an adequate remedy if court dismisses

-do not know if an absent party is "indispensible" until answer the

steps above


Rule 19. Required Joinder of Parties- GOOD EXAM PROBLEM

(a) Persons Required to Be Joined if Feasible.
(1) Required Party.
A person who is subject to service of process and whose
joinder will not deprive the court of subject-matter
jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the subject of
the action and is so situated that disposing of the action in
the person's absence may:

(i) as a practical matter impair or impede the person's
ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent
obligations because of the interest. (more likely to be
the defendant)
-absent party suing D in another court
-deals with fairness to the defendant
Joint tortfeasors are NOT necessary parties
Is Joinder feasible?
-Venue (made by absent party)
(2) Joinder by Court Order.
If a person has not been joined as required, the court must order
that the person be made a party. A person who refuses to join as
a plaintiff may be made either a defendant or, in a proper case,
an involuntary plaintiff.
(3) Venue.
If a joined party objects to venue and the joinder would make
venue improper, the court must dismiss that party.
(b) When Joinder Is Not Feasible.
If a person who is required to be joined if feasible cannot be joined,
the court must determine whether, in equity and good conscience,
the action should proceed among the existing parties or should be
dismissed. The factors for the court to consider include:
(1) the extent to which a judgment rendered in the person's
absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or
avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person's absence would
be adequate; and
(4) whether the plaintiff would have an adequate remedy if the
action were dismissed for nonjoinder.
-Could plaintiff re-file the case somewhere else and bring in
all of the parties?
-most likely in state court
-use Rule 12(b)(7) motion to dismiss or 12(h)
(c) Pleading the Reasons for Nonjoinder.
When asserting a claim for relief, a party must state:
(1) the name, if known, of any person who is required to be
joined if feasible but is not joined; and
(2) the reasons for not joining that person.
(d) Exception for Class Actions.
This rule is subject to Rule 23.

Rule 20. Permissive Joinder of Parties
(a) Persons Who May Join or Be Joined.
(1) Plaintiffs.
Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in
the alternative with respect to or arising out of the
same transaction, occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will
arise in the action.
(2) Defendants.
Persons — as well as a vessel, cargo, or other property
subject to admiralty process in rem — may be joined in
one action as defendants if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with
respect to or arising out of the same transaction,
occurrence, or series of transactions or
occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.
(3) Extent of Relief.
Neither a plaintiff nor a defendant need be interested in
obtaining or defending against all the relief demanded.
The court may grant judgment to one or more
plaintiffs according to their rights, and against one or
more defendants according to their liabilities.
(b) Protective Measures.
The court may issue orders — including an order for separate
trials — to protect a party against embarrassment, delay, expense, or
other prejudice that arises from including a person against
whom the party asserts no claim and who asserts no claim
against the party.
M.K. v. Tenent
Policy reasons for the joinder rule:
-to promote trial convenience, expediency, efficiency, avoid multiplicity of
lawsuits, prevent multiple expense and lost time
Plaintiffs: employees suing the CIA
-trying to join new plaintiffs and new defendants
-amended complaint
Defendant's response:
-motion to sever (not a motion to dismiss b/c claims are valid so not Rule
12b grounds)
Rule 21: mis-joinder of the parties is not grounds for dismissal, so the
only option is to sever

-The court allows joinder, saying this is the same transaction or occurrence, as there
is a logical relationship between all of theses plaintiffs
-how could you argue not the same transaction or occurrence?
Employment matters, so each plaintiff went through individual process
BUT court take a broad view and counts as same logical relationship
-Court finds common question of law or fact:
-question of law:
the Privacy Acts claim is the same for all claims
-common questions of fact:
-easier to find common question of fact by looking at the defendants'
Remember this is only step one, and must still do a SMJ analysis
Bank of California Nat. Ass'n v. Superior Court
-Smedly: trying to sue to enforce a contract with Boyd (P's deceased aunt)
-sues the bank (executor of the will) and the hospital (residual legatee)
-doesn’t sue the other legatees b/c the hospital gets 75% of the

Bank files a writ of prohibition against the Superior Court for their ruling
-hospital and the bank want the other legatees joined to the case b/c:
-bank doesn’t want the other legatees to bring suit later
-hospital wants to resolve the issue and get the $,so wants to get
everything finished at once

Absent parties (AP):; other legatees

-Are they necessary parties?
-Yes, to protect the bank and the hospital (D)
Rule 19(a)(1)(B)(ii) leave an existing party subject to a substantial
risk of incurring double, multiple, or otherwise inconsistent
obligations because of the interest. (more likely to be the defendant)
-absent party suing D in another court
-deals with fairness to the defendant
-the executor's legal obligation is to divide up the estate correctly, and will
have inconsistent obligations if the AP are not joined

-The court ultimately finds that the beneficiaries (parties) are not indispensible
Ct. rules that the issue is only about the contract claim

-Some of the AP live outside of the country, which could create a personal
jurisdiction problem
-Foreign defendants outside the country: what type of PJ is needed to get them
into California Court?
-in rem claim, as the property (estate) is in California
-what kind of in rem should be used?
Quasi type I in rem jurisdiction:
-property is the focus of the dispute
-parties are named and indentified
-claim is related to the property

Not a quiet title, but is a contract claim which is about
the property
-still need to do a minimum contacts test (under Shaffer) to see if PJ

Assume that joinder is not feasible?

-Proceed without AP or dismiss?
-Would be prejudicial to the bank as executor, b/c will have multiple,
inconsistent obligations
-Court could lessen prejudice by:
-building a limitation on the claims
-Would the judgment be adequate without the absent party?
-YES, all about the contract claim which can be litigated against the
parties that a present
Provident Tradesmen Bank & Trust CO. v. Patterson p.616
-Car accident where Cionci is driving Dutcher's car with Lynch and Harris as
passengers; Smith was another driver
Past Lawsuits:
(1)Provident (Lynch) v. Cionci (this action settles, but he never pays
because he is "penniless")
(2)Smith v. Cionci (in state court);pending
(3)Harris v. Cionci, Dutcher,and Lynch (in state court); pending
Present Lawsuit:
(Providence) Lynch sues insurance company (Lumberman's) as well as
Cionci's estate

Dutcher is the absent party

-the Court of Appeals raises the issue of the absent party
-Was it proper to raise the argument during the appeal?
Rule 12h:
-this issue should not have been raised on appeal
-some courts will allow this issue to be raised after the trial
-Court decides that Dutcher is an indispensible party.
Rule 19:
(1) IS Dutcher a necessary party?
He is an absent party and has an interest in the case, It is
Dutcher's car that was involved in the accident.
-It is a limited insurance party, and he is going to want
some of that money to fix his car
-if the court awards the plaintiffs the total limit of the
policy, then he will not have any $ left to fix his car
-The court can give complete relief to the Plaintiff's without
Dutcher being included in the lawsuit
-The insurance company (defendant) could potentially face
another lawsuit from Dutcher, so it would be unfair to not
have AP joined in the case
(2) Is joinder of Dutcher feasible?
-No,because it would destroy diversity
(3) Is Dutcher an indispensible party?

-Plaintiff's interest
-interest in having a forum (Plaintiff has an adequate
-19b1 and 19b3
-Defendant's interest
-AP interest
-Interest of the Court/public
-want efficient judicial system
-Rule 19b3

-Which issue does the court address first in terms of their

-Plaintiff's interest, specifically the adequate remedy
-balancing remedy
-concerned with fairness
-What do we need about bringing suit against Dutcher
-Statutes of limitations?
-Is there any prejudice to defendants to proceed without
No, defendants don’t really care, as the issue was raised by
the court
-Is there any prejudice to the plaintiff's to proceed without
-plaintiffs would be hurt if court grants a dismissal
-they have an interest in keeping their judgment and they
would have the judgment taken away from him

Provident tell us the courts often start with factor 4 and is

almost treated as a dispositive factor. They treat it as
important because of the value of fairness. If the court finds
it fails this factor, they won't dismiss.
-Rule 19ab: Provident

Impleader (bringing in a Third Party defendant-TPD)

-defendant is looking to add a new party to the suit
-Rule 14
-Standard: within 10 days of the initial answer of the motion, or with the
permission of the court
-adding a non-party who is liable in whole or in part
-in-whole: indemnity claim
-in-part: contribution claim
-Under Rule 14, there are only these two different claims that may be brought
against a non-party
-Indemnity or contribution
-Look to the contractual language or state law to see if you have an indemnity
or contribution claim
-substantive claim

-Too case: standard for the court in deciding whether or not to allow the non-
party to be inpleaded after the 10 days
Look to see if:
-Prejudice to third party
-state a claim
-to delay proceedings

Questions for the court to ask about adding the TPD after the 10 day
-Deliberate delay?
-Delay/Complicate the trial
-Prejudice TDP
-1266: do you state a claim for relief against TPD

Balancing test in which nothing is dispositive

What is the benefit to allowing the TPD?

-Same transaction or occurrence? / same facts?

Prejudice against TPD?

-court says there will be no prejudice
-will have a get a lawyer anyways

Rule 12b6: stating a claim

Asking for Indemnity and contribution
-court rules that there is no claim for indemnification against TPD, but
there is a claim for contribution
NY state law does allow for contribution under these facts, but not
2 places to look to decide indemnification or contribution
1. State law
2. Contractual obligation

When bringing in third party D's, have to make sure you have
PJ over them.
Under Rule 14 and 19 must check:
(1)Personal Jurisdiction
(3)Subject Matter Jurisdiction
(4) Erie
(5) Service