Deck 1 Flashcards
Prelimary injunction
An irreparable harm will be suffered (or serious risk of it) as we wait for a final judgment. This needs to be avoided. Avoided by a court ordering a preliminary injunction ordering D to do what is necessary to avoid the irreparable harm (usually what P wants at the end of the case).
What does the court need to find to order a preliminary injunction
1) An irreparable harm, and 2) No adequate remedy at law.
+ that there is a substantial chance that P will win (balanced against harm if they win and don’t get preliminary injunction).
Two big issues in every procedural due process case
1) There is a due process right, 2) it has been violated.
Why do we value accuracy
Not for its own sake, but to the extent that it helps prevent harms.
Goldberg factors for deciding procedure
1) Reduce risk of outcome error, 2) to protect substantive interests (private and public), and 3) costs.
How is Mathews different than Goldberg?
Look at marginal costs. Not a hearing as a whole. Won’t disturb Congress, unless Congress acting in bad faith.
Mathews is utilitarian with a marginal weighing of benefits and costs. Goldberg is rights-based balancing. Rights weigh more than dollars and cents. Rights are so important that social costs figure in in a limited way.
Outcome oriented procedure factors (Dorothy Kelly hypo)
1) reduce outcome error, 2) to protect substantive intersts, 3) costs, 4) development of good law in long run.
Process oriented procedure approach argument
This isn’t about outcome. They should be able to participate not because of impact on outcome but because participation respects their dignity. Dignity argument supports a procedure even if it increases outcome error.
Permanent injunction factors
1) (required) Whether there is a significant risk of imminent and irreparable future harm.
2) (required) P must have no adequate remedy at law.
Balancing test
3) Balance hardship to the parties.
4) Whether an injunction will serve the public interest.
5) The administrative burden on the court.
Money judgment
Not an order to D; it is an adjudication of his rights or liabilities. No one may be held in contempt for failing to pay some debt as adjudicated by the law court.
What happens if losing D does not pay a money judgment?
P (judgment creditor) must take further action to enforce judgment against D (judgment debtor). May obtain a lien against all of D’s real property, can garnish wages.
Judgment creditor can also obtain writ of execution from court directing the sheriff or similar officer to levy an asset P knows D has. Asset could be physically seized and sold at auction. Other paeople may also have interests in the asset and those secured creditors (ex. Bank with lien on a car) get money first.
Not much can be done if D doesn’t have any money to pay at any point during SoL. Up to P to keep tabs on D over the years.
What happens if losing D doesn’t follow an injunction?
Court orders injunction itself. D may be cited for contempt for failing to comply with an injunction.
Are damages and injunctions rights?
You have a right to damages. Not to an injunction. Injunction is discetionary.
What is the judge allowed to look at when responding to a motion to dismiss for failure to state a claim 12(b)(6)?
The complaint and the response to the complaint.
12(b)(6)
Dismiss for failure to state a claim.
Specific performance
Injunction in law (as opposed to equity), ordering someone to do something.
Imminence
Policy based. Don’t define. Just ask if we should or shouldn’t intervene now (for preliminary injunction).
How long does an injunction last?
Preliminary: Until the case ends.
Permanent: Lasts indefinitely until the judge decides the injunction is no longer necessary and should be dissolved (in response to D filing a motion to dissolve the injunction).
Administrative burden for preliminary injunction?
Usually doesn’t matter. Preliminary injunction won’t be complicated. Present, but not significant.
Calculation for preliminary injunction
If erroenous harm from denial is greater than the erroneous harm from granting preliminary injunction, then grant the injunction.
Consider the odds of each side winning, and the harm caused by the wrong decision in each direction.
Even if probability of winning is low you can still get a preliminary injunction if harm is high and vice versa.
When can you appeal a preliminary injunction decision?
Immediately. It is one of the only things you can appeal before the trial is over (final judgment rule).
Standard of review for fact finding
Clearly erroneous standard. Appelate court can’t reverse unless they are conviced that the DC made a clear error.
Standard of review for the law
De novo. Appelate can do this just as well as DC. If DC gets this wrong they might as well correct. This is where the real revie is. If DC gets the law right, they have a ton of discretion.
Standard for applying the law to the facts
ABuse of discretion. This is highly deferention.
Why is a preliminary injunction decision likely to decide the case?
Gives parties idea of how judge is looking at the case. Gives them idea of stenght of case. Leads to their opinions coming closer and increasing odds of settlement.
Temporary restraining order
Rule 65(b). Order granted without a full hearing. Usually granted ex parte (other side is not there).
Why would we temporarily restrain D without D there to contest issues?
1) When we have to act quickly (ex. bulldozer about to knock down the house), 2) if you give notice to the other side they will try to do what you are trying to restrain them from doing, so sometimes it is necessary to restrain before you give notice (ex. spousal abuse).
How long does a temporary restraining order last? What happens during this time?
It lats for 14 days and can be renewed for an additional 14 days. D can bring a motion to dissolve before this.
Judge will hold a hearing while the temporary restraining order is in effect.
Impact of cease and desist letter. What can recipient do about this?
Have to inform investors about potential liability stemming from the letter. This makes it harder to get money. Investors less willing to invest in a project that might get enjoined in the future.
You don’t have to sue to send the letter.
Recipient can seek a declaratory judgment. Ask the judge to declare what they are doing as lawful.
Hypo: D has 50% chance of winning the case at the end of the day. How does the preliminary injunction come out?
It comes out in favor of who the injuction or lack thereof would harm more.
Bond for prelimary injunction?
Supposed to be posted by P and given to D at the end if D wins. But it can’t compensate for irrepareable harms. Bonds are sometimes set at zero if P can’t afford to pay them (ex. Goldberg v Kelly).
Why isn’t the court’s decision an advisory opinion in a cease a desist letter scenario?
The letter creates an actual controversy.
Benefits to D of a declaratory judgment proceeding?
1) Future D gets to accelerate the lawsuit, and 2) D gets to choose the forum.
What does P have to do when D asks for a declaratory judgment?
P has to counter-claim and bring all the causes of action they would have brought later.
How does a case begin?
With the plaintiff filing a complaint in court (rule 3).
What do you have to plead? How much do you have to plead?
The burden of pleading. The quantum
Three ways 12(b)(6) motion to dismiss for failure to state a claim can be granted
1) There is no claim that fits what P is saying, 2) there is a claim but it has a hole in it, 3) there is a claim but they haven’t said enough about one or more of the elements (not enough detail).
Why is pleading an element assigned to one party or the other
Any element can logically be assigned to either party. Nothing says it has to be assigned to one party or the other.
Reasons to assign one way ex. Makes no sense to prove that no contract was formed for breach of contract because it is far easier to have someone prove that it does exist.
Rule 8(c) does defense need to plead any matter constitutitng an avoidance or affirmative defense?
The defense has the burden of pleading for any matter constitutting an avoidance or affirmative defense.
Is pleading the same as proving?
No. Pleading is just about stating/alleging.
Why did court say D had to plead qualified immunity in Gomez v Toledo?
8(c). Also D more likely to know about relevant facts because QI has a subjective strand to it. The information access problem that P would have would lead to mistakes. Meritorious claims would not be made by P because they didn’t realize they could plead QI if they had to plead it. This would be a false negative error.
False negative error in Gomez
Meritorious complaint that is not filed or that is but is dismissed do to failure to state a claim 12(b)(6) (hole).
Why does P have to plead that there was actual malice in NY Times v Sullivan when D is the one who knows?
Because in this case the constitutional right (freedom of speech) belongs to D. In Gomez P was the one who’s constitutional right was at risk.
Afraid of false positive errors here: Meritless suites proceeding through the system. This could chill aggressive reporting.
Goldberg v Kelly. False positive? False negative?
False negative error: Wrongful termination before hearing.
False positive: Ineligible recipient who gets benefits and state can’t stop them until holding a hearing.
Do we have to consider both false negative and false positive errors?
Yes. And we need to consider all four variables, 2 for each kind of error (the probability of error/risk and the cost of making such an error).
Statutory interpretation order
Text, structure, legislative history, historical context, purpose.
Where does error cost analysis come in when interpreting a statute?
It comes in for purpose, policy. You start with text, etc. But, lots of procedural questions come down to error-cost because they come down to policy.
Meritles suit
Zero percent chance of winning objectively.
What’s the problem with trying to keep out meritless suits?
That we keep meritorious sutis out too. We only really want to prevent frivolous suits.
Frivolous suits
P knows it’s meritless and files it anyway (intentional), or 2) P doesn’t know it’s meritless, but would have figured it out if they reasonably investigated (negligent).
What would happen if we had zero safeguards to prevent frivolous suits?
We will have frivolous suits where both sides know the suit is frivolous because it will be cheaper for D to settle then to go to court. If not one off, D will go to court to develop reputation as a fighter.
Also, if P knows the case is frivolous but D doesn’t, under many circumstances P can get a substantial settlement, because D will find it worthwile to treat P as meritorious.
How do we change the amount frivolous suits?
By assigning pleading burdens and adjusting the quantum of the pleading burden.
8(a)(2)
Tells us how many facts to include. Complaint must have a short and plain statement of the claim showing that the pleader is entitled to relief.
9(b) pleading specificity for fraud claims.
Requires more pleading specificity for fraud claims.
Conley v Gibson pleading rule
Notice pleading.
A complaint should not be dismissed unless it is beyond doubt that P can’t prove any set of facts that entitle P to relief. This is very broad. Only function of this sort of complaint is to give D notice of what the dispute is generally about. D finds the facts later on discovery.
Notice pleading doesn’t do much to deter frivolous suits.
Bell Atlantic v Twombly pleading rule
The plausibility test. Complaint must be plausible on its face.
From the facts in the pleading you need to be able to infer the elements with a certain confidence described by the term “plausible.”
Why the plausibility test?
2) Prevent high litigation costs due to discovery costs, 2) prevent bad settlements (of meritless suits).
The court thinks high discovery costs are leading to bad settlements.
They say summary judgment not enough because settlement can happen before then and case management by judges has proven ineffective because judges are reluctant to limit discovery.
Since these don’t work we have to screen frivolous suits out at the beginning via pleading specificity. The more you have to allege, the less likely you are to bring a suit that doesn’t have factual support.
Problem with plausibility test?
It can create more false negatives when there is an information access problem.
Why was plausibility not met in Twombley?
Twombly pled that 1) All 4 Ds used the same tactics to prevent others from entering the market and 2) that none of them entered one another’s markets. Says this looks fishy. Concludes that there must have been at least a tacit agreement to act this way.
Court: This behavior is consistent with what competitive firms would do in this scenario. They aren’t entering markets because they know each party is using effective deterrence techniques. They are using the same techniques because those are the most efficient ones.
This doesn’t meet the plausibility test because there was a perfectly lawful account of those facts. They have to say something that makes the situation look fishy relative to what would happen in a lawful way. It can’t just be specultive.
What is plausibility?
Plausibility is not probability. It simply calls for enough facts to raise a reasonable expectation that discovery will reveal what P is claiming. Well pleaded may proceed even if it appears that recovery is very remote and unlikely. May proceed even if proof of facts is improbable.
Ashcroft on plausibility
Your allegations can’t be legal conclusions. You look at allegations and take out all of the legal conclusions. Then we take what is left over and ask if those allegations are sufficient to make a plausibile inference.
Form 9
Meets the plausibility test.
It says on this date, in public highway called street, in city, d [negligently]* drove a motor vehicle against plaintiff who was the crossing said highway.
Negigently gets removed due to Iqubal. The remained meets 8(a)(2) which has been interpeted to mean plausibility.
People usually don’t get hit when walking across the crosswalk when everyone is acting lawfully. Because this is different than what we usually expect the basline lawful world to look like, the allegation is nudged over the plausibility line.
Swanson v City Bank Loan
Majority says that identying the type of discrimination, by whom. Then ask if these things could happen. This is closer to Conley v Gibson. It’s not a complex case (unlike Twombley) so not as much is required.
Dissent: Iqbal needs to be taken seriously.
But, it turns out that this type of discrimination was happening.
Tellabs (security fraud pleading requirement)
Strong inference in security fraud claim case. You have to plead sufficient facts to show a strong inference of scienter. This isn’t the same as plausibility.
Not sufficient that fraudulent intent inference is plausible if it is less cogent than other explanations.
This is not 9(b) fraud. This is a private securities litigation reform act case (PSLRA).
Scienter
Intent or knowledge of wrongdoing.
Form of a complaint
A complaint must have a short and plain statement of the facts showing P entitled to relief. 8(a).
8(a)(1): Short and plain statement showing SMJ
8(a)(3): Has to have a prayer for relief. Has to ask for damages.
Each paragraph contains only one factual allegation.
Can you plead inconsistent claims?
Yes. We let them in and then sort it out.
How long do you have to respond to a complaint?
21 days.
Motion to dismiss impact on response requirement
Motion to dismiss pauses the 21 days to repsond until a decision on the motion to dismiss has been made.
What does D have to do if motion to dismiss is denied or if judge postpones their decision?
They have to file their answer.
What has to be in the answer
Mandatory: A response to all of the allegations, you admit or deny (on information or belief).
Optional: Affirmative defenses (if you want to make any).
If you don’t respond to a particular allegation it is assumed to have been admitted.
Do Twombly and Iqbal apply to affirmative defenses?
Yes (in most courts).
What happens if the defense never files an answer (assuming no motion to dismiss/motion to dismiss denied)?
The plaintiff wins via a default judgment.
Jointly and severally liable
Each is separately liable and then has an action against the other party to get them to contribute part of it.
11(c)(2) notice before filing rule 11 sanctions?
You have to give notice to the other side before you file Rule 11 sanctions. This creates a 21 day safe harbor in which the other side has a chance to correct the motion before you can bring a motion for Rule 11 Sanctions.
11(c)(3)
Allows a judge to issue a show cause order for rule 11 sanctions without a safe harbor. Doesn’t require a party’s motion.
Rule 11(b) reasons for rule 11
Lawsuit can’t be made for an improper purpose (harrasment, unecessary delay, needless increase of cost).
The claims, defenses, and other legal contentions are warranted by existing law or nonfrivolous arguments for extending, modifying, or reversing existing law or for establishing new law.
Factual contention shave to have evidentiary support or will likely have evidentiary support.
Denial of factual contentions have to be warrented by evidence or reasonable belief on lack of evidence.
What does rule 11 apply to?
Rule 11 only applies to pleadings, motions, and other papers. Would not apply to something said in oral argument.
Two tools to deter frivolous complaints
1) Strict pleading, and 2) sanctions/penalties.
Tools beyond sanction 11 to regulate attorney conduct
Legal malpractice, court inherent power to discipline, bar discipline.
Rule 1
FRCP used to secure the just, speedy, and inexpensive determination of every action and proceeding.
Rule 2
One form of action, the civil action. Combines law and equity.
Impact of strict pleading
Strict pleading reduces false positives (meritless suits allowed), but increases false negatives (meritorious suits blocked). Requires lawyers to investigate so they can discover merits of suit. Strict pleading won’t impact someone acting in bad-faith.
Impact of penalties and sanctions
Strict pleading effects everyone. Instead, with penalties and sanctions you target meritless suits. But, if suits settle then nobody is going to go after sanctions. That being said, a party will accept less in settlement if they are trying to avoid sanctions. Moreover, it could scare away meritorious suits if you think the judge will disagree.
Third tool for getting rid of frivolous suits?
Summary judgment. Can be brought by both sides. Can be brought in part or whole.
Summary judgment test
Must be no genuine dispute as to a material issue of fact. The moving party must be entitled to judgment as a matter of law.
Could infer = go to jury. Couldn’t infer = summary judgment.
Adickes test for summary judgment
Foreclose the party.
The moving party has to foreclose the possibility that X is true. They have to prove not X.
What happens if D forecloses the possibility?
If D meets this burden, then Rule 56(e) requires P to do more than just rely on contary allegations. P would now have to come forward with an affidavit supporting its position or explaining under 56(f) why it can’t do so at the time.
Structure of Adickes and Celotex
D is moving for summary judgment and P has trial burden of production.
Celotex test summary judgment
The burden of the moving party may be discharged by showing that there is an absence of evidence to support the nonmoving party’s case (point-out test).
What does pointing out entail
Celotex plurality: Fixed point. Just go through and say it’s not enough (in this case say it’s all hearsay).
Celotex concurrence: Can’t ignore superivsor letter which is simply in the wrong form. You have to depose the supervisor. Showing isn’t enough. You have to affirmatively show. You have to show that the supervisor won’t testify to what Caltrett thinks they will testify to.
Two ways to meet initial burden for summary judgment
Adickes: Foreclose the possibility (prove not X in a prima facie way). Prima facie means that you only look at evidence presented by the moving party. Don’t look at the counter-argument.
Celotex: MP can point out the absence of evidence to support x (NMP cannot meet trial burden of proof). This is only available when the NMP has the trial burden of proof on X. Two ways a document can be insufficient help: 1) hearsay, 2) document not in proper form.
In what way do you have to foreclose the possibility under Adickes
In a prima facie way.
Anderson test to grant summary judgment
You have to meet the standard for a directed verdict at trial in order to meet summary judgment. You ask in a directed verdict if a reasonable jury could find for P based on evidence P presented. The trial burden of persuasion has to be included in the test (clear and convincing evidence in Anderson).
To steps for summary judgment
Step 1: Has MP met summary judgment initial burden?
Step 2: Has MP met burden of persuasion on summary judgment.
Summary judgment process
D wants summary judgment. Does 3 things: 1) files motion saying there is no genuine issue of material fact. 2) They file a brief. 3) (especially if using Adickes approach) they go through the record and find stuff that helps them prove not X. Under Celotex option they would say here is what helps P but none of it is admissible.
If MP has pointed out absence of evidence, then NMP needs to supplement the record. They can also say that MP hasn’t met initial burden because MP is wrong that what NMP has isn’t enough. If stuff added to record, MP gets an opportunity to amend their motion. Then the dust settles. Exchanges done. Hearings had. Arguments made. The judge now has to decide.
In what ways can judge deny summary judgment?
1) Concluding that MP didn’t meet the initial burden with the record in the state it was when the motion was filed, before any supplementation, or 2) initial burden met but still denied for failure to meet step 2 (failure to show that NMP can’t meet trial burden of persuasion).
These aren’t chornological steps. They oeprate at the same time.
Anderson Test
Test for summary judgment is the same as the test for a directed verdict. Test is whether a reasonable jury could find for NMP by the trial burden of persuasion. This is the operational test for whether there is a genuine dispute as to a material fact (Rule 56). It is a genuine dispute if a reasonable jury could find for NMP by the trial burden of persuasion.
How does Step 1 work in Anderson
Step 1 met via affidavit detailing all of their research. This is an Adickes approach. What if Liberty Lobby had a bunch of evidence in the record that helps them? Doesn’t matter because not X only needs to be proven prima facie. You only look at what MP has, not what NMP party has under the Adickes approach.
Step 2 in Anderson (Brennan disagrees)
If intitial burden met, then NMP has to show what they have to win on step 2.
Brennan doesn’t want judges to weigh evidence. Thinks they will have to weigh evidence in order to apply a clear and convincing standard.
Majority says this doesn’t authoritze judge to encroach on jury functions. All evidence is supposed to be drawn in favor of NMP. This is all taking place as part of a movement to make summary judgment easier to meet.
Brennan doesn’t want a s trong summary judgment that will screen out so many cases.
Brennan says judges are going to ignore instruction to not wiegh evidence and view in light most favorable to NMP, and ask if reasonable jury could find in favor of NMP, because SC has given signs that weighing is ok.
Celotex on Remand (focusing on step 2)
Court walks through NMPs evidence. Based on this they have to decide whether or not a reasonble jury could find that Catrett (NMP) has been exposed. Decides that a reasonble jury could find for them because, while each piece of evidence alone isn’t compelling, all of them together are. MSJ denied.
Majority: We don’t care that letter isn’t admissable at trial. There is a reasonable chance that supervisor will testify. Wants to limit summary judgment to cases that are clearly and truly meritless.
Bork (dissent): Need to beef up summary judgment. We have to be confident that a suit isn’t meritless, especially when it isn’t to difficult to comply with the rules (in this case, getting the affidavit).
X
X
Fee shifting and frivolous suits
Fee shifting is another tool to keep out frivolous suits. If someone knows they will win in the end, they have zero reason to settle because they will get attorney’s fees at the end.
American rule (fee shifting)
Each side pays their own attorneys and costs whether they win or lose (some exceptions).
British rule (fee shifting)
Loser pays the winner’s fees (some exceptions).
How does British rule impact filing incentives?
It incentivies strong cases and discourages weak cases. But, weak suits and mertiless suits aren’t the same thing. Civil rights cases are typically weak cases.
Moreover, British rule discourages risk averse actors from filing. This will cause meritorious suits to not be filed.
British rule impact on mutual optimism cases
These are the cases least liekly to settle because both sides think they have a good chance of winning.
If P values case more than D, then D can’t pay P a value they will accept.
P value: What they expect to gain from going to trial.
D value willing to pay: Expected loss b going to trial.
Under British rule these cases go further apart because both sides think they will win and the other side will pay their fees.
Pros and cons of settlement
Pros: Both sides consent, saves court costs, room for more crative solutions because not limite to court tools (ex. can require a public apology)
Cons: No legal precedent. Trial airs out facts (public facts = reputational harm, bad publicity), might be a better deterrent than having someothing settled. If settlement confidential then it has less deterence value. Civil litigation is about rsolving disputes in accordance with the substantive law. A settlement might not match this.
Two dimensions of forum choice
1) vertical, 2) horizontal.
Article 3, section 2
Outer limits of what Congress can allow federal courts to adjudicate.
All non-SC federal courts determined by Congress.
When can subject matter jurisdiction be raised
At any time. Including on appeal. It is so fundamental that if it is missing the court shouldn’t be doing anything. Moreover, a judge has an obligation to throw out a case with a subject matter jurisdiction problem when the judge notices it, even if neither party raises it.
Diversity jurisdiction
- Requires that 1) P is a citizen of one state and D is a citizen of the other state, and 2) an amount in controversy of more than X (currently $75,000).
What makes a person a citizen of a state
To be a citizen of state A you need to be a domicile of state A. To be a domicile of state A you need to 1) take up residence, and 2) intend to remain indefinately.
For diversity citizenship do you have to be awarded above the threshold?
No, you just need to request above that amount.
Can you combine plaintiffs in diversity jurisdiciton case?
Yes, if they both get in seperately.
P1 (TX) P2 (NM) sues D1 (OK) and D2 (TX). Diversity jurisdiciton?
No. P1 and D2 both from Texas. Complete diversity has to be assessed for the lawsuit as a whole, not in parts. It is based on how the lawsuit actually brought by P is shaped. What P could have done doesn’t matter.
Company P (DE/TX) (incorporation/principal place of business) sues Company D (DE/MI) and Jones (MI). Diversity?
No, because both companies incorporated in Delaware.
P1-449 (WV) P450 (NY) sues D (NY). Diversity?
No.
1331
“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”
General federal question. This fills in all the gaps. Originally had an amount in controversy requirement, but no longer does.
Prong 1: Is there a federally created claim? (neither a federal issue nor a federal interst is sufficient, only a federal claim (substantive and remedial right combined is enough).
Prong 2: Are there issues of federal law that need to be adjudicated in order to decide the matter?
Only have to meet on prong to get into federal court.
Well-pleaded complaint rule for 1331
The questions need to be an essential part of P’s prima facie pleading burden in order to satisfy 1331 prong 2.
The well-pleaded complaint is the complaint stripped down to its essentials. A federal affirmative defense doesn’t confer 1331 requirements because it doesn’t meet well pleaded complaint requirement.
Similarly a federal counterclaim also wouldn’t be enough.
Why no 1331 in Lousiville & Nashville Railroad v Mottley?
Argument by P: In complaint they say D could make Hepburn Act argument (federal) but 1) it’s wrong and 2) it’s unconstitutional. P says SMJ under prong 2 because these questions would need to be adjudicated.
SC says this is not enough. It isn’t coming into the lawsuit in the right way. The questions need to be an essential part of P’s prima facie pleading burden. It isn’t satisfied here because they are raising it as a potential response to an anticipated defense. They only have to allege contract + breach. They can do this without saying anything about federal law.
Even though nobody disputes that a contract was formed and breached, and the whole case is about these two federal issues, it isn’t sufficient to be in federal court.
P (TX) sues (Federal) D (TX). SMJ?
Yes, because federally created claim.
P (TX) sues (federal but frivolous) D (TX). SMJ?
No. Dismissed under 12(b)(1), lack of subject matter jurisdiction. Patently frivolous, and therefore doesn’t give SMJ.
Adickes (NY) sues Kress (DE/NY). SMJ?
Yes. Jurisdiction in federal court because Kress was allegedly working in coordination with police officer (making Kress a state actor). Doesn’t need to be able to prove this to have jurisdiction, just ha to show that it’s non-frivolous. It just has to pass the not totally stupid test. 1343(a)(3) and 1331
1343(a)(3)
Now redundnat, but originally made to deal with federal civil rights claims. It did not (and does not) have an amount in controversy requirement.
450 Ps (WV) sue (federal) Buffalo Mining Co (WV). Assume there is no remedial right. What happens?
Don’t dismiss on basis of this alone for SMJ. You still might want to argue that even though there isn’t an express remedial right, there is an implied one.
Smith (TX) sues (federal) D1 (TX) and sues (state) D2 (TX). SMJ?
Yes, can piggyback via 1367. No 1367(b) because main claim gets in through 1331.
1367(a) supplemental jurisdiction
In a civil action where DC has original jurisdiction, ther is supplemental if so related to the main claim that they form part of the same claim or controversy under Article III.
Two requiremens of 1367(a)
1) a main claim that can get into federal court on its own power if it were brought separetely, and 2) there must be a close enough relationship between the state and federal claim for it to constitute one case within the meaning of Article III.
1367(b)
Only applies when the original claim is § 1332. Says that there is no supplemental jurisdiciton when original jurisdiction based solely on § 1332 over claims by P against pesons made parties under Rule 14, 19, 20, or 24, or claims by persons proposed to be joined by P under rule 19, or seeking to interven as Ps under 24, when supplemental jurisdiction over such claims would be inconsistent with the jurisdiction requirements of § 1332.
1367(c). Does the judge have discretion to decline subject matter jurisdiciton?
In four cases. 1) Claim raises a novel or complex issue of state law, 2) claim substantially dominates over the claim or claims over which DC has original jurisdiction (we don’t want the federal claim to exis only to bring in the state claim), 3) the district court ahs dismissed all claims over which it has jurisdiciton, 4) in eceptional circumstances there are other compelling reasons to dismiss the case (rarely used).
P (TX) sues (neg, state) D1 (OK) and sues (state) D2 (TX).
1367 bars this. First diversity can’t be used to bring in a second one.
P1, P2, Pr, and P4 (all PR) all sue (state) D1 (not PR). P1 is greater than $75K the rest are less. Supplemental?
Yes. 1367(a) is satisfied. No provision of (b) blocks. (b) blocks claims by P against someone under rule 20, but this is a claim by P to bring people onto the same side.
P (TX) sues (state) D (CA) and D (TX). SMJ?
1332 diversity for TX v CA but not lawsuit as a whole. No complete diversity. 1367 supplemntal? No, blocked by (b) because it is a diversity claim. 12(b)(1) dismissal.
P (TX) sues (state) D1 (CA, 100k) and D2 (CA, 50k). Doesn’t meet amount in controversy for D2. SMJ?
Can’t use 1332 because each has to meet seperately. Supplemental? NO, barred by 1367(b).
P (TX) and P (CA) sue (neg) D (CA). SMJ?
No. barred under Exon Mobile. No diversity.
P (TX, 100k) and P (TX, 50K) sue (state) D (CA). Supplemental?
Yes. 1367(b) doesn’t bar. Seen Exxon Mobil.
Contamination theory (Exxon Mobil)
Does inclusion of P2 contaminate the original jurisdiciton that P1 would have? If yes, then no supplemental jurisdiction.
Court says to determine if it contaminates, we go back to the purpose of why we require complete diversity and amount in controversy. Then we ask if the addition undermines the purpose.
Original purpose of diversity was to prevent local bias against people from out of state. When you bring in P2 who is from same state as D this is no longer a problem, so P1 has been contaminated by its in-state friend.
Original purpose of amount in controversy requirement was to ensure that claim is sufficiently inmportant to be in federal court. Adding in a lesser claim doesn’t change the importance of the original claim.
P (CA) sues (federal) D (TX). Filed in CA state court. Can D remove to fed court?
Yes. There is removal subject jurisdiction (1441) because there is original jurisdiction.
D has removal jurisdiction if P could have originally brought the case in federal court.
1441
Any civil action brought in a state court of which the district courts have original jurisdiction, may be removed by D to the district court for the discrict embracing where the action is pending.
However, it can’t be removed if one of the Ds is from the state in which the action is brought and if the basis for original jurisdiction is diversity jurisdiciton.
How does D remove? What if mistake is made?
They file a notice of removal with the federal court. The case is removed as soon as this is filed. No permission is necessary.
If there is a mistake, P must file a motion to remand to state court. This will have to be granted to return the case to state court.
How much time does D have to remove? How much time does P have to file a motion to remand after removal?
D has 30 days t remove after being initially served. P has 30 days after removal to file a motion to remand.
For what reasons could a motion to remand a removal be granted?
This is only granted if there is a defect with the removal (can be procedural or an SMJ problem). But if SMJ problem it can be raised at any time, so 30 days only matters for procedural problems.
P (MI) sues D (TX) in TX state court. Removal?
No. When the original jurisdiction that could have existed is based only on diversity, D can only remove when they aren’t a citizen of the state in which the case is filed (forum D rule). This only applies to removal jurisdiction
P1 (TX) and P2 (CA) sue (state) D (CA) in TX state court. Removal? What if P2 voluntarily dismisses themselves and exists the lawsuit?
No. It couldn’t have been originally filed in fed court. But, if P2 voluntarily dismisses themselves and exists the lawsuit, there is diversity. D can remove within 30 days of finding out that P2 has left the lawsuit. However, you can’t do this more than one year after the suit has been filed.
Two principles of public law (in regards to JOP)
1) Each state has exlusive jurisdiction and authority over persons and property within the state’s territory. 2) No state can exercise direct jurisdiction or authority over persons or property outside of the state’s territory.
A state can affect things in other states though. Ex. An Oklahoman who owns property in Texas can have their Texas property acted on by Texas. This is indrect.
In personam judgment
When state acts on person in the state (ex. breach of contract, negligence).
In rem
When state acts on property in the state (ex. quiet title).
Quasi-in-rem
Not in rem but we pretend it is. Court acting on property, not person, but adjudicating a tort or contract suit. Ex. P sues D, property of D in state, lawsuit would be breach, negligence, etc, but P, if they win, can only get a judgment up to the value of the property.
What is service about? Attachment?
Service is a sort of seizure of the person. Attachment is a sort of seziure of the land. Symmetry between serving at beginning and attaching at beginning.
What is JOP about?
JOP is about power. It’s about the state’s power over the person or the property. You have to seize it to have power over it. The whole system gets constitutionalized through due process clause.
Three ways to get JOP in personam
1) peronally serve in state, 2) voluntarily appears in lawsuit, or 3) consent in advance (ex. Contract agreement to litigate in State X).
Can JOP be consented to/waived?
Yes. Unlike SMJ.
What if JOP only over 1 of 2 Ds in the same lawsuit?
JOP is D focused. If P sues two D’s and one has JOP and the other doesn’t, then the lawsuit goes forward against one but dismissed against the other.
What is the only way to argue lack of JOP under Pennoyer? Solution?
Under Pennoyer if you voluntarily appear in court, they have jurisdiction. The only way to argue lack of personal jurisdiction is to allow a default judgment to be entered into, and then refuse to comply.
Option created to allow D to make a “special appearance” which allows them to show up voluntarily without subjecting itself to JOP, as long as they limit their argument exclusively to lack of JOP.
Do you need a special appearance to argue JOP in fedeal court?
No. You file a 12(b)(2) motion to dismiss. When you bring the motion to dismiss, you can continue to litigate the merits while it is decided.
Presence and consent in International Shoe (corporation)?
For presence, courts look to amount of activity in state. If ther is enough activity in the state then it is as though they have a presence.
Consent? Idea here is that even without enough activity to be deemed prsent, you can still be deemed to have (implicitly) consented to JOP for claims that arise out of the business you’ve done in the state.
If presence then general jurisdiction. If consent, then only jurisdiciton with respect to claims related to what you did in the state.
International Shoe test
The minimum contact rule. Due process require only that in order to subject D to a judgment in perosnam, he has certain minimum contacts with the forum such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”
In other words: Minimum contact such that it is fair, just, and reaonble.
The Court is saying that Pennoyer rules have no real meaning. Instead we should just ask directly about the policy goals we want to achieve and what is fair, just, and reasonable.
