MBE Civ pro Flashcards
SMJ:
Jurisdiction over the kind of case
Issue: Does this court have the power to decide this kind of case?
Federal courts are courts of limited subject-matter jurisdiction.
State courts are generally courts of general subject-matter jurisdiction.
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Pleading
Basis for federal SMJ must be affirmatively pleaded in every case.
If challenged, it must be proved that there is a basis for SMJ.
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Waiver
No waiver for a lack of SMJ (parties cannot agree between themselves to litigate in a court that lacks SMJ)
Lack of SMJ cannot be waived by failing to object or by affirmative consent
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objection
Lack of SMJ can be raised by any party at any time, including by:
* The plaintiff, who chose to go to the wrong court
* The court itself
* Anyone for the first time on appeal
Exam Tip 1: For the MBE, unless you are given a state statute that says otherwise, assume state courts have subject-matter jurisdiction over any kind of case.
subject matter jurisdiction: diversity jurisdiction –>amount in controversy (aggregation)
aggregation: adding up smaller claims to exceed $75,000
- one plaintiff v. one defendant: plaintiff can aggregate all of her claims, regardless of whether claims are related
- one plaintiff v. two (or more) defendants: plaintiff may not aggregate her claims against multiple defendants
- two (or more) plaintiffs v. one defendant: plaintiffs may not aggregate their claims against the defendant
supplemental jurisdiction: smaller-value claims are sometimes permitted as a matter of supplemental jurisdiction
SMJ: Complete Diversity
The diversity statute requires complete diversity.
Every citizenship represented on the plaintiff’s side of the case must be different from every citizenship represented on the defendant’s side.
Does NOT mean every plaintiff must be diverse from every other plaintif for that the defendant must be diverse from every other defendant
Exception: Minimal Diversity
Exists when any plaintiff is diverse from any defendant, even if other plaintiffs and defendants overlap.
Minimal diversity is permitted in the following circumstances:
- Federal Interpleader Act (statutory interpleader);
- Class actions with at least 100 class members and claims worth more than $5 million (Class Action Fairness Act); and
- Interstate mass torts if at least 75 natural persons have died in one accident and the plaintiffs and defendants are from many different states (airline crash).
Outside these limited exceptions, the general rule is that complete diversity is required.
Diversity must only be complete as between plaintiffs and defendants.
SMJ: Citizenship of the Parties
Individuals
Citizen of the state or country of domicile
* Must be a citizen of the United States and a domiciliary of the relevant state
* Domicile is permanent residence, (residence + an intent
to remain indefinitely)
For purposes of jurisdiction, there can onlyy be one legal domicile at a time
“Aliens” (Citizens or Subjects of a Foreign Country)
Diversity jurisdiction exists for controversies between a citizen (or citizens) of a state and a citizen (or citizens) of a foreign country.
A citizen of a foreign country who has been admitted to the U.S. as a permanent resident is treated as a citizen of the state where she is domiciled.
Diverse citizenship does not exist when a suit involves stateless persons:
(1) noncitizens present in the U.S. but not citizens of a foreign country or
(2) U.S. citizens domiciled in a foreign country.
Representative parties
Generally, the citizenship of the representative controls.
Exception: For litigation involving a decedent’s estate, the citizenship of the decedent controls.
Exception: For the legal representative (guardian) of a minor or an incompetent person, the domicile of the infant or incompetent person controls.
Class actions
Citizenship of the named or representative parties count
Class members not named may join without regard to citizenship.
Corporations
Can have several citizenships simultaneously
Citizen of:
* The state, states, or foreign countries in which it is incorporated; and
* The state or country where it has its principal place of business
(where its executive offices are located)
Remember, when a corporation is a party, you still need COMPLETE diversity between plaintiffs and defendants, so you must consider EVERY state where the corporation has citizenship.
SMJ: Devices to Create or Destroy Diversity
Actions that create or destroy diversity are permitted so long as they are not “shams” or fraudulent.
- Moving: permitted, even if it is done with the purpose of affecting diversity, so long as the change in domicile is genuine, not a sham
- Assignment of a claim: permitted so long as the assignment is real (for value), complete, and not collusive
- Partial assignment of a claim for the purpose of debt collection does NOT affect citizenship if the assignor retains an interest in the claim.
removal
Removal moves case from state court to federal court.
Transfer moves case from one federal court to another federal court.
No procedure for removal of a case from federal court to state court.
* Federal court can abstain from hearing the case (in very narrow circumstances).
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general rule for removal
Removal is proper ONLY if the case could have been brought originally in federal court.
ONLY defendants may remove.
* ALL defendants must consent to removal within 30 days of service (does not have to be at the same time in a single notice, all must consent within 30 days of service upon plaintiff)
ASK: If the plaintiff had chosen to sue in federal court in the first place, would the federal court have had subject matter jurisdiction?
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Removal of Federal Question Cases
Well-pleaded complaint rule: Federal question jurisdiction on whether the federal question appears on the face of the well-pleaded complaint.
Removal does not change that rule: If the well-pleaded complaint discloses that the plaintiff’s claim is based on federal law, then the defendant may remove to federal court.
* If the plaintiff’s claim is based on state law, defendant cannot remove to federal court, even if the defendant has raised a federal defense.
In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal
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removal of diversity cases
Removal based on diversity jurisdiction is proper only if:
1. There is complete diversity;
2. The amount in controversy exceeds $75,000; and
3. The action is brought in a state of which no defendant is a citizen
One-year limit on removal: Must remove within one year of the commencement of the action in state court, unless the plaintiff acted in bad faith to make the case non- removable.
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removal procedures
A notice of removal is filed in the federal court, with a copy to the state court.
Once a defendant files a notice of removal, the case is automatically transferred to federal court.
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improper removal
Plaintiff can file in federal court a petition for remand, and it is on that petition that the federal court will hold a hearing.
* if removal is proper, remand is denied, and case stays in fed court
* if removal is improper, remand is granted, and case goes back to state court
subject matter jurisdiction: supplemental jurisdiction
general rule: allows a federal court with SMJ over a case to hear additional claims over which the court would not independently have jurisdiction if ALL the claims constitute the same case or controversy
- same case or controversy: arising out of the same common nucleus of operative fact; all the claims arise out of the same transaction/occurence
- supplemental jurisdiction allows, but does not require, the court to expand its jurisdiction; decision is within discretion of trial court and typically made on practical grounds
supplemental jurisdiction: Federal Question Jurisdiction (“Arising Under”)
Plaintiff’s claim, which arises under Constitution, federal law, or treaty
Well pleaded complaint
Plaintiff’s claim must be based on federal law.
Look at the face of the plaintiff’s complaint.
Only the plaintiff’s claims count for determining federal question jurisdiction; the existence of a federal defense does not matter.
Plaintiff does not need to anticipate or plead a response to a defense.
A federal defense does not count for federal question jurisdiction, even if it is important.
a federal question claim is an “Anchor” claim and forms basis for federal court’s SMJ over a case, so if there is a state law claim which does not qualify on its own for federal SMJ if it arises out of same common nucleus of operative fact, court may exercise supplemental jurisdiction over state law claim.
this is called “pendant party jurisdiction”
SMJ: Diversity
cases between citizens of different state, or citizens of a state and foreign counrt, if the amount in controvery exceeds 75k (exclusive of interests and costs; any good faith allegation will suffice)
If you sue someone’s insurance, the insurance is a corporation; they are a citizen of:
* the state of its incorporation
* the state of its principal place of business.
* the insured’s state when the insurer is sued in a direct action.
Exceptions
probate and domestic relations actions cannot be brought in federal court under diversity jurisdiction even if the normal requirements are satisfied.
time for diversity determination
Diversity must exist when the complaint is filed
Does NOT matter that diversity did not exist when the cause of action arose.
Does NOT matter that diversity no longer exists when the case comes to trial
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state law claims must be part of “Same case or controversy” (common nucleus of operative fact)
statute bars supplemental jurisdiction in diversity cases over:
* Claims by plaintiffs against persons made party under Rules 14, 19, 20, or 24;
* Claims by parties seeking to intervene as plaintiffs under Rule 24; or
* Claims by parties proposed to be joined as plaintiffs under Rule 19.
If such claims are to be part of a diversity case, they must independently satisfy the complete diversity and AIC requirements.
statutory nuances
Supplemental claims by plaintiffs are allowed if they satisfy the common nucleus of operative fact test.
counterclaims
A compulsory counterclaim is one that arises out of the same transaction or occurrence as the other party’s claim.
A permissive counterclaim is one that does NOT arise out of the same transaction or occurrence as the main claim.
cross-claims
Claim by a co-party (plaintiff against another plaintiff; defendant vs defendant)
Relatedness Requirement: Must arise out of the transaction or
occurrence that is the subject matter of the action or of a counterclaim.
To qualify for supplemental jurisdiction, a cross-claim:
* Must be related to a claim over which the court has subject-matter jurisdiction (i.e., the “anchoring” claim); and
* Must not be asserted by a plaintiff against a person made party under Rules 14, 19, 20, or 24.
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multiple plaintiffs, single defendant (permissive joinders and class action)
If the claim of one diverse plaintiff against a single defendant satisfies the jurisdictional amount, other diverse plaintiffs who have related claims against the defendant can also be heard even if their claims do NOT satisfy the jurisdictional AIC minimum.
Supplemental jurisdiction is available on the same logic when multiple plaintiffs do not form a class, but choose to join together in the same action. If one plaintiff has a claim worth $75K+, the others can raise claims arising from the same transaction regardless of amount.
personal jurisdiction (PJ):
power of the court to decide rights and liabilities of this defendant
Personal jurisdiction is an issue in federal and state court, and rules are generally the same in federal and state court.
* Default federal rule—use the long-arm statute of the state in which the federal court sits (chief means of asserting PJ over out-of-state defendants).
Must always ask two questions:
1. Has the basis for exercising PJ over an out-of-state defendant been
authorized by statute or by rule of court?
2. Is the particular basis for exercising personal jurisdiction permitted by the due process Clause of the US Constitution?
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waiver
Unlike subject-matter jurisdiction, and objection to a lack of personal jurisdiction can be waived.
voluntarily litigating on merits waives any objection to lack of PJ (a general appearance)
* A defendant waives any objection to personal jurisdiction (consents to the court’s jurisdiction) by substantial participation on the merits before raising that objection.
* this includes almost anything other than challenging jurisdiction.
federal rules: lack of PJ must be raised at the first opportunity, or it is waived
* If the defendant chooses to file a pre-answer motion to dismiss she must make the objection then or waive it, OR
* if the defendant does not file a pre-answer motion, the objection to personal jurisdiction must be raised in the answer.
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types of personal jurisdiction
in-personam: against the person
in-rem: against the thing
quasi in-rem: “sort of” against the thing
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in personam jurisdiction
(1) constitutional aspect
due process requires minimum contacts between defendant and forum state
there must be sufficient contacts between the defendant and the forum so that it would be consistent with traditional notions of fair play and substantial justice to sue the defendant there
in assessing minimum contacts, courts look to see whether defendant has purposefully associated himself with the forum in some way
* Contacts between the forum and the plaintiff do NOT suffice.
* There must be minimum contacts between the forum and the defendant
* Those contacts must be a result of the defendant’s own purposeful actions
(2) general and specific in personam jurisdiction
* federal courts follow the personal jurisdiction law of the states in which they sit
* there is some variation state to state, but not much
general in personam jurisdiction: The plaintiff can assert any claim whatsoever, even if it is unrelated to the defendant’s contacts with the forum state.
specific in personam jurisdiction:
* Plaintiff’s claims against the defendant must arise out of—or directly relate to—the defendant’s contacts with the forum.
* State long-arm statutes authorize specific jurisdiction based on some minor contacts.
bases for general in personam jurisdiction
physical presence within the state: Service of process on the defendant while she is physically present in the state
exceptions: If a person was in the state only to answer a summons or Persons brought to the state by brought there by force or fraud
If person is in the state knowingly and voluntarily, then the person can be served there.
domicile
Domicile is independent of physical present.
consent
Expressly (“Yes, I’d be delighted”) or implicitly (by not raising the issue)
Can be given by appointment of an agent for receiving of process within
the state, or by contract.
corporations
Corporations can consent to personal jurisdiction just like individuals, but the rules regarding physical presence are a little different.
Merely “doing business” in a state is insufficient to support general jurisdiction.
General in personam jurisdiction applies only to corporations that are essentially
“at home” in the forum state.
* The state of incorporation; and
* The state where the corporation has its principal place of business.
- where court always has PJ:
1. Where you reside in that state- state has PJ
2. If you are physically present in state and served there
3. when you consent to be sued in jurisdiction (like in k)
to get PJ on out-of-state party:
1. when person has sufficient minimum contacts like frieds, family, etc
2. if it is a business conducting business in state look for whether the business is systemic, continuous, purposeful or if they purposefully availed themselves of law of statwe (filing there as business bc of tax rate)
if one has sufficient minimum contacts it will not violate their due process rights (fair) and defendant should have reasonably anticipated litigation of case
specific in personam jurisdiction
constitutional test: defendants must have sufficient minimum contacts with the forum state such that exercise of jurisdiction is fair
statutes
every state has a long-arm statute ; give courts in personam jurisdiction over out-of-state defendants but onyl for the particular transactions involving that state
* Some state statutes are very broad, “the long-arm statute extends as far as the Constitution allows”
* Others list specific activities that give rise to jurisdiction (see below)
common bases for specific in personam jurisdiction
any acts or ommission in the state causing injury to a person or property here or elsewhere
an act or omission inside the state causing injury to person/property within the state, provided that defendant conducted activities here/introduced goods into flow of commerce
any claim arising out of contract to perform service in state/pay someone in state to perform services elsewhere
any claim regarding local property
any action against officer/director of domestic corporation for acts taken in that capacity
any contract for insurance where plaintiff was resident of state when claim arose, or event giving rise to claim occurred in the state
federal exceptions
generally, fed cts follow state long-arm statutes of states in which they sit
the exceptions are federal rules that extend in personam jurisdiction of federal courts beyond state boundaries.
federal interpleader act:
* Authorizes nation-wide service of process
* Service anywhere in the United States establishes personal jurisdiction
* For a federal court, the relevant jurisdiction is the U.S. as a whole, so congress can authorize nationwide service of process as means of asserting personal jurisdiction nationwide
bulge provision of federal rules:
Allows service anywhere within 100 miles of the federal courthouse, even if in another state, in two situations:
1. For impleading third-party defendants under Rule 14; and
2. For joining necessary parties under Rule 19.
unusual provision:
- Use: Defendant not subject to personal jurisdiction in any state court
- Rule 4(k)(2): applies only when plaintiff is suing under federal law
- When the plaintiff is suing under federal law and no state has jurisdiction over this defendant, the federal court can exercise jurisdiction so long has the defendant has sufficient contacts with the U.S. as a whole.
- Used rarely; most relevant with foreign defendants with
no particular contact with a particular state
in rem and quasi in rem jurisdiction
in rem jurisdiction
suit against a thing (the res) vs suit against a person
utility: suit can be brought against a piece of property so long as
* property is located in state where you are suing
* suit will settle everyone’s claims to the property
the res: may be any property real (land) or personal (bank account)
essential: this state’s courts have power over the property (property must be located within); this is type of specific jurisdiction
quasi-in-rem jurisdiction
suit to adjudicate claim to property of a specific defendant; the subject matter of the suit may/may not be related to property
historically, possible to use quasi-in rem jurisdiction as way to get to defendant’s assets
present rule:
The SC has held quasi-in-rem action subject to same minimum contacts test as applied to personam jurisdiction
* When the property is the subject of the suit, it will constitute an important “minimum contact” between the defendant and the forum, and jurisdiction will probably be permitted as a matter of specific in personam jurisdiction.
* When the property is not the subject of the suit, the ownership of property in the state is not nearly enough to establish general jurisdiction over the defendant
service of process
Any defendant (individual or organization) receives proper service of process when someone who is at least 18 years old and not a party to the suit serves the defendant with a summons and complaint.
generally means service of summons and a copy of the complaint on the defendant
* formally gives court jurisdiction over the case
* gives defendant notice of action
* SERVICE MUST BE MADE WITHIN 90 DAYS AFTER COMPLAINT IS FILED (unless plaintiff shows good cause as to why service was untimely, court may extend time– like plaintiff ill or injured)
personal service: used to assert in personam jurisdiction
* Should also be used for in rem and quasi-in-rem actions when the identity of an interested party is known
* Service by publication is only appropriate for in rem actions when that is the best that the serving party can do.
* Requirement: statutory authorization and constitutional validity (constitutional test: notice must be reasonable under circumstances)
Fed rules authorize service in accordance with state law where court sits OR where service is made
* default rule is that service in federal court is okay as long as it follows the law of the state in which the federal court is based.
federal rules for service ALWAYS allowed:
1. In-hand personal delivery;
2. Leaving the summons at the defendant’s dwelling or usual place
of abode with a person of suitable age and discretion;
3. Delivery of the summons to an authorized agent; and
4. For persons in foreign countries, service can be made by
registered mail, return receipt requested
special rules for service of process
* infant: service on the infant AND on the guardian
* Adjudicated incompetent: Service must be made on the incompetent AND her guardian
* Partnership: Service on a general partner, an attorney in fact, or an authorized agent
* corporation: Service on an officer, director, managing agent, or on an agent appointed for receiving service of process (corporations doing business in the state must have an agent)
* nonresident motorists: Claims arising out of in-state accidents; Generally, service can be made on a state official who forwards a copy to the out-of-
state defendant.
service of process for in rem and quasi in rem actions
* you must make a diligent effort to locate all claimants to the property (res) and serve them personally
* if the claimant cannot be located, then notice by publication is permitted
Service of process: waiver of service
Rule 4: Defendants have a duty to avoid unnecessary expenses of serving the summons by waiving service.
Plaintiff can notify defendant that an action has been commenced and request that defendant waive service of the summons.
* plaintiff can do this by 1st class mail
* defendant has 30 days to respond, or 60 days if the defendant is outside US
people waive because rules incentivize defendant by extending the deadline to file answer
* usual deadline to file an answer is 21 days after the service of process
* defendant agrees to waive service, then defendant gets 60 days to answer and 90 days if outside US
requirements for waiver
* in writing
* addressed to defendant or authorized agent
* names court where complaint filed
* provides copy of complaint, two waiver forms, and prepaid means to return form
* informs defendant about consequences of waiving and not waiving
* lists date request sent
benefit: defendant’s time to file answer extended to 60 days (90 if abroad) from date sent
consequences of waiver
* defendant pays expenses of future service of process
* defendant pays reasonable expenses of any motion required to collect service expenses (atty’s fees)
service of process: injunction notice issues
Injunction: a form of relief that requires a defendant to do something (i.e., a mandatory injunction) or prohibits a defendant from doing something (i.e., a prohibitory injunction).
After the court has fully heard the case, it can issue a permanent injunction.
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ways to stop behaviors:
Preliminary injunction: Relief that can be issued prior to a full hearing on the
merits. Requires:
* notice to the defendant and
* hearing on whether the injunction should be granted
a federal court may grant a preliminary injunction only when it is established that:
* the movant is likely to succeed on the merits
* the movant is likely to suffer irreparable harm (injury that CANNOT be compensated by monetary damages) in the absence of relief
* the balance of equities is in the movant’s favor (the harm to the movant absent an injunction outweighs the harm an injunction would cause to the nonmovant(s)) and
* the injunction is in the best interests of the public—e.g., enforcement of contractual rights and obligations protects the freedom to contract.
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temporary restraining order: used to preserve the status quo until the court can make a decision on the preliminary injunction.
* Temporary measure
* Cannot last more than 14 days, unless the other party agrees or the court finds
consents for an extension for “a like period.”
* A TRO can be issued wihtout notice to another party;
* Moving party has to establish, under oath, that there will be immediate and irreparable harm if there is a delay
* Moving party’s attorney has to accomplish notice in writing any efforts that have been made to give notice and the reason why notice is not required.
* If TRO is issued without notice, then the other party can make a motion to dissolve TRO
* TROs are not appealable, unless they have the effect of a preliminary injunction
venue
Where among the courts in this judicial system is the appropriate court to hear the case
* federal system: whether this venue
* it is the defendant’s responsibility to object if venue is improper.
* Federal law—claim of improper venue must be made at the first hearing or it is waived.
* Either a pre-answer motion to dismiss if defendant chooses to file one, or the defendant’s answer, if no pre-answer motion is made
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federal rule
Federal venue concerns which district should hear a case.
Federal venue is proper in a district:
- Where any defendant resides, as long as ALL defendants reside in the same state; or
- Where the claim arose (Where a “substantial part of the events or omissions” on which the claim is based occurred or where a “substantial part of the property” that is the subject of the action is located.)
- If neither of the above (rare), any district where the defendant is subject to personal jurisdiction has residence
special venue rules apply in certain situations, including when a defendant is a nonresident of the U.S.
* In this situation, venue is proper in any judicial district—including a district in the state where the Plaintiff resides.
residence:
* Individuals: residence means domicile
* business entities: any business entity (capacity to sue or be sued) resides in every district in which personal jurisdiction exists
special provisions:
For a case begun in state court and removed to federal court, venue is automatically proper in the federal district where the state court sits, even if that district would not have been proper originally.
transfer (one federal court to another):
General rule: transfer is only to a district with proper venue
* exception: Transfer to a district without proper venue may occur when ALL parties agree.
a case brought in a district with proper venue may be transferred for convenience to another district with proper venue. (if interest of justice requires)
a case brought to a district without proper venue may be
1. dismissed or
2. transferred to a district with proper venue
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conflict of law (which state’s law applies)
If suit was brought in a district with proper venue and the case is transferred to another district, the law of the transferor (first) forum controls.
* apply the choice-of-law rules of the state in which the action began; take your law with you
generally, in cases involving real property, law applied by forum court should be determined by conflict-of-law rule that would be applied by state where property is located
* except (for these, look for law of state that has most significant relationship to transaction and parties instead of determining it by where property is located):
* where document specifies application of specific jurisdiction’s law
* issues regarding effect of marriage on interest in land
* collateral issues (whether transferor perpetrated fraud)
* issues regarding mortgage note (validity of note)
* foreclosure-related issues that do not affect interest in land (mortgagee’s right to sue mortgagor for underlying debt before foreclosure)
If suit was brought in a district without proper venue and transferred to another district, the law of the transferee (second) court controls.
* DO NOT get to take your law with you; no advantage to filing in the wrong court.
Special rules for where venue is proper:
Removal
Federal district where state action was pending
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Foreign resident
Any judicial district
BUT Diverse citizenship does not exist when a suit involves stateless persons:
(1) noncitizens present in the U.S. but not citizens of a foreign country or
(2) U.S. citizens domiciled in a foreign country.
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Federal official sued in official capacity
Where defendant resides
Where substantial events occurred or property is located
Where plaintiff resides if no real property is involved in suit
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Foreign government
Where substantial events occurred or property is located
In federal district court of Washington, D.C.
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Multiparty, multiforum litigation
Where defendant resides
Where substantial part of accident occurred
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Federal Tort Claims Act
Where plaintiff resides
Where act/omission occurred
erie: choice of law
always applies in diversity case. judge will have 2 scenarios: state vs state or state vs federal
In a diversity case, a federal court applies state substantive law and federal procedure.
In federal question case, apply federal law.
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state substantive law
must apply the substantive law of the state in which it is located.
The substantive rules that govern conduct, (what must be proved to win a case and what defenses may be asserted);
State statutes of limitations on state causes of action;
the existence of an affirmative defense ( (NOT THE BURDEN OF PROVING THE AFFIRMATIVE DEFENSES, THIS IS PROCEDURAL AND FOR FEDERAL COURTS)
The burdens of proof on state claims or defenses; and
State rules on choice of law
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federal procedures
Hanna v. Plumer: Anything covered by the Federal Rules of Civil Procedure is “procedure” for purposes of Erie—federal law applies, even if the substance of the claim is governed by state law.
* whether action can proceed as class action is governed by FRCP
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no federal statute or rule on point
(commonly tested is for statute of limitations issues, this is usually substantive and state will decide)
The court must determine whether to follow state law (i.e., the matter is deemed “substantive”) or to follow federal law (i.e., the matter is deemed “procedural”).
where it is unclear whether an issue is substantive or procedural (like the deadline to commence an action under a statute of limitations= state substantive, or whether class action can commence= federal procedural) A court must then determine if a federal law directly addresses the issue.
If a conflict exists, then the federal-rule analysis provides that a valid federal rule that directly addresses the issue applies if the rule:
* is arguably procedural and
* does not abridge, modify, or enlarge a substantive right.
The twin aims of Erie:
1. To avoid forum shopping (Situations in which parties have incentives to choose/ avoid federal court based on perceived advantages and disadvantages of federal law versus state law) and
2. To avoid the inequitable administration of justice (Situations where there is a different result in state and federal courts, so winning and losing turns on the accident of diversity of citizenship)
Two common applications of Erie:
1. If the choice of the procedure would be outcome determinative (change the result), the federal court should usually apply state law to prevent forum shopping.
2. The role of the jury in federal court is entirely controlled by federal law.
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federal common law
Judge-made federal law (“federal courts have recognized”, may not be called a RULE) that overrides (preempts) any inconsistent state or local law or rule
Federal courts make federal common law ONLY when they encounter important federal interests that are not covered by statute
Examples where federal common law applies (apply federal substantive/procedural rules):
* Boundary disputes between states
* claim preclusion
* privilege (attorney-client, psychiatrist-patient)
Federal courts sometimes “borrow” state law but do so as a matter of federal common law.
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Follow precedent from the highest state court
If there is no precedent, predict how the highest state court would rule.
Give respectful attention to the decisions of lower state courts (not
bound).
fpleadings: computing time
Rule 6: whenever a time period is stated in days, the period excludes the day of the event that triggers the period, but it includes every day following, including intervening Saturdays, Sundays, and legal holidays.
If the last day of the period is a Saturday, Sunday, or legal holiday, then the period is extended to include the next non-weekend or non-holiday day.
pleadings
commencement of proceedings
Federal civil action is begun by filing complaint a with the court clerk.
For diversity actions, state law controls when an action is begun.
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types of pleadings
(1) the complaint
* Used to state a claim for relief
* the plaintiff/defendant may file a claim against a co-party, called a cross-claim complaint
* defendant files a 3rd party complaint to implead a 3rd party defendant
(2) the answer
* filed by oppossing party in response to the complaint
* it may contain responses to allegations of complaints, affirmative defenses, and/or counter-claims
(3) the reply
* used by plaintiff to answer a complaint
* generally, party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time
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requirements of a complaint
A complaint (or any pleading in which a claim is made) must include:
* a short and plain statement of the court’s subject matter jurisdiction
* a short and plain statement showing claimant is entitled to relief and
* a claim for the relief sought by pleader
(1) claim for relief
* recovery isnt limited for relief as stated in complaint, except for default judgments
* you get what you prove, no what you ask for
(2) notice pleading
* federal rules reformed pleadings: standardized pleadings across civil actions, simplified pleadings, shift emphasis from pleading to merits of case
* federal rules generally only require notice pleading: A pleading need not detail the facts of the plaintiff’s case or spell out the legal theory, Must only give fair notice of pleader’s claim (short and plain statement)
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special pleading
no particular form of words
alleged with particularity/specificity/detail
types of claims requiring special pleading:
* fraud or mistake must be specially pleaded (must show circumstances giving rise to fraud or mistake WITH PARTICULARITY)
* Claims for special damages must be specially pleaded (damages that dont ordinarily follow from wrong)
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recent decisions
Supreme Court cut-back on notice pleading, due to concerns about excessive discovery and fishing expeditions.
Require that the allegations in the complaint state a plausible case for recovery
Conclusory Claims: Disregard allegations not entitled to presumption of truth
Two-step inquiry:
1. Identify allegations that are “conclusory” or “mere legal conclusions”
2. Look at remaining, factual, allegations, and ask whether they add up to a “plausible” (between probable and just possible) case for recovery.
- empowering district judges to dismiss, before discovery, complaints that they think are obviously unfounded (lack of factual detail, it tells rather than shows)
defense motions
(1) motion to dismiss
May be used to raise:
* lack of subject matter jurisdiction
* lack of personal jurisdiction (including lack of power and defects in service of process)
* improper venue
* failure to state a claim upon which relief can be granted
* failure to join a necessary party
* forum non conveniens: allows a court to dismiss an action—even if personal jurisdiction and venue are otherwise proper—if the court finds that a state or foreign judicial system is better suited to hear the dispute (the forum would be too inconvenient for parties and witnesses, and that another more convenient venue is available) The appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is to seek dismissal through the doctrine of forum non conveniens.
claim of no personal jurisdiction/claim of improper venue MUST be made at the earliest opportunity (pre-answer motion if filed, if not then in the answer)
lack of SMJ may not be waived; can be raised by ANY party at ANY time, including for the first time on appeal or by the court itself
most claims (including lack of PJ and venue) are waived if NOT raised by defendant before substantial participation on the merits
issuficient service of process waived if not raised in pre-answer motion, and if no pre-answer motion is filed, in the answer.
(2) motion for judgment on the pleadings
* After the pleadings are closed, a party may move for judgment on the pleadings pursuant to Rule 12(c).
* applies when the pleadings agree entirely on the facts and only the law is in dispute
* The complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.
* if facts in affidavits/discovery docs must be considered, MUST file for summary judgment instead of judgment on the pleadings
(3) motion for a more definite statement
* asks that pleading be made more specific
* defendant’s answer must be served within 10 days of service of the more definite statement.
* judges usually disfavor this motion
(4) motion to strike
* can be used to delete from pleading scandalous or prejudicial matters that are NOT relevant to the case at hand
* also used by plaintiff to strike a legally invalid defense
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answer
(1) in general
* used to respond to any form of complaint
* may contain responses, affirmative defenses, and counterclaims
(2) responses
* The answer must admit, deny, or state that there in sufficient knowlegde or information to form belieg as to truth or falsity of the allegations of the plaintiff’s complaint (treated like denial).
* An allegation, other than one relating to the amount of damages, will be deemed admitted if a responsive pleading is required and the allegation is not denied.
* the failure to respond constitutes an admission
* unless cured by amendment, the admission is binding in the action
* usual practice: a boilerplate denial of everything not specifically admitted
(3) affirmative defenses
* common affirmative defenses: assumption of risk, ocntributory negligence,f raud, release, statute of frauds, statute of limitations
(4) timing
* must ordinarily be served within 21 days of service to the pleading to which it responds
* if defendant waives service of process, answer is due within 60 days of when the request for waiver was sent out (90 days if the request for waiver was sent to the defendant outside of the U.S.).
* If defendant files a motion to dismiss and the court denies it, the answer is due 14 days after notice of the court’s action.
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reply
Plaintiff’s answer to a counterclaim
Rules governing counterclaim apply to a reply.
forum selection clause
When transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect
* NOT SUPPORTED FOR A MOTION TO DISMISS!
* the clause itself does not render other forums legally improper, a forum selection is set aside only upon a strong showing that transfer to the selected court would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching
When venue is transferred between federal courts based on a valid forum selection clause, the transferee court must apply the law, including the choice-of-law rules, of the state in which it is located.
If the clause specifies a federal forum, it may be enforced by a motion to transfer under §1404(a).
If the clause specifies arbitration or a state or foreign forum, the common-law doctrine of forum non conveniens may instead require the action to be dismissed.
forum selection clause
When transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect
* NOT SUPPORTED FOR A MOTION TO DISMISS!
* the clause itself does not render other forums legally improper, a forum selection is set aside only upon a strong showing that transfer to the selected court would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching
When venue is transferred between federal courts based on a valid forum selection clause, the transferee court must apply the law, including the choice-of-law rules, of the state in which it is located.
forum selection clause
When transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect
* NOT SUPPORTED FOR A MOTION TO DISMISS!
* the clause itself does not render other forums legally improper, a forum selection is set aside only upon a strong showing that transfer to the selected court would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching
When venue is transferred between federal courts based on a valid forum selection clause, the transferee court must apply the law, including the choice-of-law rules, of the state in which it is located.
forum selection clause
When transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect
* NOT SUPPORTED FOR A MOTION TO DISMISS!
* the clause itself does not render other forums legally improper, a forum selection is set aside only upon a strong showing that transfer to the selected court would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching
When venue is transferred between federal courts based on a valid forum selection clause, the transferee court must apply the law, including the choice-of-law rules, of the state in which it is located.
denials
- the defendant may deny all allegations in plaintiff’s complaint, called general denial
- defendant may deny allegations of specific paragraph or averment of complaint, called specific denial
- defendant may deny particular portion of particular allegation, called qualified denial
- the defendant may deny knowledge/information if he doesnt have the knowledge/info sufficient to form belief as to truth of plaintiff’s complaint. this has full denial effect and subject to good faith requirement
- (judge-made extrapolation) a denial based on information and belief, allows defendant without first hand knoweldge but with enough info to believe in good faith that complaint is false, to deny it on that ground. this kind of denial is often used by large corporate defendants on whom burden of obtaining info may be great.
