JURISDICTION: 1) territorial 2)
subject matter 3) venue 4) w/stand forum non conveniens
in deciding juris: -proximity
-diff. procedural rules -diff. substantive law -jury/judge bias
Personal Jurisdiction:
power of a court to adjudicate
in personam
jurisdiction over your person
in rem
jurisdiction over every owner of the property
quasi in rem
Type I: dispute re: property
Type II: dispute not
about property
Restatement 2nd of Judgements §4
(comment a): states/nations defined by geographical boundaries; place of a
transaction important
Fed. Judiciary Act 1789: if state
court has jurisdiction, so does a federal court
Jurisdiction Considerations:
1) Claim to
be asserted:
a)
a claim is a legally enforceable right that confers a duty on someone
b)
res judicada (civil) and double jeopardy (criminal) means you must try
all your claims in one suit
Why prohibit res judicada?
1) finality is important to
justice system
2) contradictory verdicts
undermine people's faith in judicial system--kills basis of C/L
3) efficiency of the court
system; much proof would be the same; sep. trials are redundant
2) Who to
include as a party in the suit:
a)
collateral estoppel: discourages multiple suits for one crime on different
parties
3) Where to
Sue: Jurisdiction
a)
territorial: geographic limits by state
b)
venue: geographic limits by county (state level) or district (fed. level)
c)
subject matter: what types of cases a court can hear (Fed: fed q, diversity)
Appeals:
1.
Direct Attack: to raise an issue that you think was a mistake in ct.
where suit filed
2.
Collateral Attack: only used for 2 claims: (1) no jurisdiction (2) no
notice
Case
Personal Jurisdiction rule
Pennoyer v Neff:
presence (in personam and in rem--prop. in state)
example: in personam presence: I
can be sued in CA no matter what I'm doing there, what I'm being sued for, as
long as I'm served while I'm physically present.
example: in rem presence:
If I have a boat off the Pugeot Sound, anyone can go to WA and file suit in rem
against me and use my boat to get jurisdiction--even if the suit has nothing to
do with WA or the boat.
Good law or bad law? If it is
unreasonable for me to defend myself in WA in personam, it makes it no more
reasonable for me to defend myself there in rem (in unrelated matters to my boat
or WA contacts--which I have none but boat)
International Shoe
in personam: min. contacts; in rem: presence
(Pennoyer)
example: in personam
minimum contacts:
Good law/bad law?
Standards for minimum
contacts established: comport w/ traditional notions of fair play and
substantial justice (Miliken v Meyer)
Perkins v Benguet
continuous & systematic contacts: general jurisdiction
Corporations so many contacts
with the state that it would always be reasonable for them to be sued there (HQ)
People so many contacts in the
state where you live, it is always reasonable to sue you there
McGee v Internat'l Life
minimum contacts: specific jurisdiction
Hanson
minimum contacts
Shaffer v Heitner
1) minimum contacts for in personam and in rem
2) related to lawsuit (specific
jurisdiction only)
example: a person can sue
you in their state if you assaulted them in their state because the fact that
you were there and assaulted someone is a minimum contact and the contact
(assault) is related to the lawsuit
Importance: did away with
in personam and in rem distinction
World-Wide VW
1) minimum contacts
(specific jurisdiction)
2) related
3) purposeful
Burger King v Rudz
(specific
jurisdiction)
When is a contract a contact?
-when buyer sues seller in buyer's home state: always
-when seller sues buyer in seller's home, K must
be:
1) negotiated
2) long term relationship
3) large K ($ at stake)
4) helps if buyer had to travel to sellers'
home
Asahi
1) minimum contacts:
2) related
3) purposeful (awarenss+ or awarness of eventual sales
there?)
4) Reasonableness test: only for foreign D and out of
state P
1) burden on D
2) forum state's interests
3) P's interests
4) judicial system's interests
5) all state's social policy interests
Helicopteros
1) continuous & systematic contacts:
(general
jurisdiction)
2) at the
time the suit is filed
*Texas has a long, long-arm statute
Holt v Harvey
*general and specific can be viewed in aggregate to find minimum
(gen. & specific juris)
contacts when there is some contact btwn case &
forum
TERRITORIAL JURISDICTION
(purpose: liberty interests in not being haled into a distant or inconvenient
forum)
I. Presence (in persoman
only: personal service)
II. Minimum Contacts (specific
juris)
1. contacts
a) a K is always a
contact for seller; for buyer it is if:
i) LT
ii) negotiated
iii) large K ($ at stake)
iv) P requ'd to travel to forum
2. suit arises out of
contact
3. purposeful
(by actions of seller, not
consumer; must end up for sale in forum)
4. reasonable (only is
foreign D and out of state P)
a) burden on D
b) forum state's
interests
c) P's interests
d) judicial system's
interests (i.e. if 2 diff. cts. could decide diff. things; economical to decide
at once)
e) all states' "social
policy" interests
III. Continuous & Systematic
Contacts (general juris)
A. people:
1. where domiciled
(where you intend to
indefinately remain)
2. where you work
(suggested)
B. corps:
1. where incorp.
2. principal place of
business
3. where you have other
"continuous and systematic" activities @ time suit is filed
CONSENT TO JURISDICTION: forum-sel
clauses, waiver...
Carnival Cruise
decided by S.Ct. (Art 3 §2: admiralty) so doesn't apply to states
forum selection clauses
each state can make it's own law re: forum sel. clauses (see
Texas' below)
When are forum-sel. clauses not
enforceable?
-extreme inconvenience (local dispute in remote alien forum)
-bad faith (clause is trying to avoid all lit. altogether)
-fraud (did they hide the clause?)
-no notice of clause (although not much notice in Carnival)
When are forum-sel clauses
enforceable in Texas?
-consumer has notice of
clause prior to purchase
-consumer had a choice to
accept/not accept clause
("choice" not yet interpreted...)
-place picked is
"reasonable" (rznble not yet
interpreted--prob. somewhere that would have had juris anyway)
-in action less than
$50k, not enforceable unless set out by typeface
CHALLENGING JURISDICTION
Defects in terr. juris. are waivable - you can directly/collaterally attack
juris. voluntarily or impliedly consent to juris.
Rule 12
(Federal)
1) say in responsive pleading OR
2) in a motion before you
file answer OR (if denied, 10 more days to answer 12(a)4A
3) if you find in 20 days, in
amended answer
can't:
collaterally attack terr. juris-->
if already gen. appearance
can't:
rule for summ. judgement based on no terr. juris b/c not brought up in pleadings
a) when
(1) answer
(a) within 20 days
of service
(b) if waiver (4d),
60 days
(2) cross-claim: 20
days
(3) on US: 60 days
(4) motion
(a) deinied: answer
in 10 days
(b) motion for more
definitive stmt: 10 days
b) How Presented
(1) s.m. juris
(2) personal juris
(3) venue
(4) process
(5) service of
process
(6) failure to state
a claim
(7) failure to join
a party under Rule 19 (persons needed for just adjudication)
motion must be filed prior to
pleading; can join
c) Motion for
judgement on the pleadings
After pleadings closed; can’t
delay trial (this is not summ jdgmt - R 56)
d) Prelim Hearings
e) Motion for more
definitive stmt.: must point out defects in answer; amend answer in 10 days or
can be striken
f) Motion to
strike: 20 days after pleading; for insufficient defense, redundant, immaterial,
impertinent or scandalous matter
g) consolidation of
defenses in a motion: may join motions
h) Waiver
(1) Personal juris,
venue, process, service is waived if
(a) If omitted from
motion (g)
(b) Neither made
by motion nor in answer or amendment made per R 15(a) as a matter of course
(2) failure to state
claim, R. 19 (indispensable party) can be made at any time
(3) s.m.
juris can be made at any time by any party
Rule 120a
(Texas rule on special appearance)
only by motion filed prior to all
other motions and answers (can be in same doc as anser, but file first)
Ct must rule on prior to eveything
else.
Tx Rule 37 b -
sanctions for not complying with
discovery
NOTICE AND PROCESS
Sufficiency of Process & Notice:
Constitutionally must be
rzbly certain to convey the info/give ample time to respond under the
circumstances
Benchmark: what businessmen
would expect
RCP 4:
summons:
proper form, P serves after sealed by Ct., include copy of complaint, one for
each D; must serve with/in 120 of filing suit; service by a non-party (unless
mailed) over 18
Waiver:
req'd or else Ct. can impose costs of process on you; gives you 60 days to
answer
Service:
according to laws of state where district Ct. is (or according to laws of state
where D is served, if there is general terr. juris) as long as service comports
w/ due process
·
personal best
·
can leave at
dwelling where they reside (if rzbly calculated)
·
mail (for waiver)
TEXAS: authorizes by mail,
personal, publication, other, but in many cases it will not be constitutionally
adequate, so it is best to personally serve (esp. on corps.) R. __
LONG ARM STATUTES
Texas has a long-long-arm statute
(Civil practices and Remedies code is confusing, but the Ct. has interpreted it
as going as far as the Constitution allows in Helicopteros)
1. Is the territorial
jurisdiction Constitutional?
2. Is it authorized (that far) by
the state?
RCP 4k: Federal Long Arm
Statute:
- same as state where Dist.
Ct. located
- bulge juris: party
joined by Rule 14 (3rd party Ds) or 19 (Joinder of necessary parties)
can be
served w/in 100 mi of courthouse (Const’l b/c w/in US - forum where conflict
arose)
- when authorized by statute
(there are some nationwide service of process statutes)
- 4k2: service allowed on
one who is not subj. to the juris of any state (state's w/ short-long
arms)
SUBJECT MATTER JURISDICTION
**not waivable**
Purpose:
to protect the cts and serve institutional interests, therefore, not waivable -
any party can move for dismissal based on lack of s.m. juris at any time [direct
attack only] (Rule 12 b1; 12h3)
Constitution:
Art. III, §2 "all cases arising under" + specifics, incl. btwn citizens of diff.
states
Statutes:
Art III, §2 gives Const. authority, but enabling statutes are still required
Types of cases 1. action at law
2. probate
3. title of real prop. 4. amt. in controversy (add 1 Ps claim; not 2 P's
claims)
Fed Q
§1331
Diversity
§1332
Citizens of diff states
citz. of state & citz of
foreign state
foreign state (P) v. citizens
of state
admiralty
§1333
US a party
§§1335, 1336
ambassadors, consuls...
§1351
S.Ct. Original
Jurisdiction: §1251
a) State v state (exclusive)
b1) foreign heads of state
b2) US & State
b3) State (P) v citizen
Appeal to S.Ct.
§1257
if validity of fed. laws in
q.
if validity of state law in
q. on grounds of violating fed. law
some statutes give Fed ct
exclusive jurisdiction (like bankruptcy, §1334)
Citizenship:
people where domiciled (or last place domiciled; only changes w/
intent to remain)
corps.
where incorporated; HQ
Insurers
where insured is citizen (unless insured is joined as D)
rep. of
estate where decedent was citizen
FEDERAL QUESTION S.M. JURISDICTION
§1331
“When Federal Law creates the
cause of action.” --Holmes
(appl: b/c the law D
violated is not a federal law...)
“well-pleaded complaint rule”: P
must assert, not D and not speculated to be defense or only real issue
if Declaratory action: from
pov of “hypothetical complaint” filed by hypo. P (Skelly Oil)
DIVERSITY JURISDICTION
§1332
a) Complete diversity of citizenship
(complete: every P from every D per
·
state citizenship = domicile; at
time suit filed
·
to change domicile:
-take up residence
-intend to indefinitely remain
·
UC citizens domiciled abroad, not
state citizens
·
Corporations: (1) incorporated (2)
principal place of bsns (primary production, HQ, both)
·
Unicorporated Assoc.: all states
where members live
·
Trust: where trustee is citizen
(not beneficiaries)
·
Interpleader does not require
complete diversity (3 parties; 1 party requires 1st 2 to decide whom he is
liable to before they sue him; requires part. diverstiy)
b) Amt. in controversy over $75,000
·
must be reached by each P
individually
·
can claim amt. in good faith
(if P filed in Fed. Ct; awarded < $75k, Ct. can impose costs on P)
·
if D can prove to a "legal
certainty" that P cannot recover damamges over $75k St. Paul Mercury.
·
Valuation:
·
-punitive damages: included, judge
discretion
·
-injunctions: hard to value;
usually look at value of injunction from either P or D
·
-aggregation of claims:
·
2 Ps--ea. must meet (unless same
__________)
·
1 P, 2 claims--can add
·
-class actions
*Probate, domestic
relations: not handled by fed. ct. even if diversity juris (Akenbrandt)
Supplemental
Jurisdiction, Joinder
§1367:
Supplemental Juris.
a) if fed. q juris =>
supplemental juris over claims (including joinder)
--w/ same CNOF
--and is
Constitutional
b) if diversity juris
only, no supplemental jurisdiction (ie supp juris cannot defeat complete
diversity)
c) ct. can decline
to hear added claim if
1.
novel/complex issue of state law
2. new claim
predominates
3. ct. has
dismissed al original juris. claims
4. exceptional
circumstances
d) if supp. claim
dismissed, SOL tolled for 30 days to allow time to refile in state ct.
R. 13 Counter- &
Cross-claims
a) compulsory counterclaims
must be stated
in answer or lost
arise out of
same s.m.
cannot
require 3rd parties that ct has no juris over
b) permissive counterclaims
claim not
related to answer (only thing you can join that is unrelated is
counterclaim)
must state in
pleadings
f) can amend to include a
counter-claim if justice requires
g) cross-claims
same s.m. (of
original claim or a counter-claim)
h) can join parties
necessary to adjudicate cross-claims (R. 19, 20)
R. 14 Third-Parties
(Impleader)
a) D = 3rd party P;
can bring in 3rd party D
b) P = 3rd party P;
can bring in 3rd party D (P would do this to defend original D's counter-claim)
R. 18: party may join
claims and sequential remedies
R. 19
Joinder of Persons Needed for Just Adjudication
must not defeat
s.m. juris; must be subject to ct's personal juris
must be
necessary for complete relief
R. 20
Permissive Joinder
a) all potential P's or all potential D's may
join together if same claim will be asserted by / against them (arising out of
same transaction)
b) separate trials may be ordered to keep from
embarrassment, delay, expense...
R. 22 Interpleader
(see interpleader section)
can join if P may be subject to double
liability
R. 23 Class Actions
REMOVAL
28 U.S.C. §1441
a) may be removed by D from state ct to federal
ct IF fed. would otherwise have juris.
b) unless it would be removed to a Fed. Ct.
where D is a citizen of forum
c) supplemental juris. claims can be removed
Note: if removal improper, P challenging files a
motion to remand
§1446: Removal Process
a) 1) Notice of removal: file in fed. ct
include ground, copy of papers, R. 11
signature
2) Notice to attys.
3) file copy with state ct so they know it
has been removed
b) must remove within 30 days after
receipt of paper showing grounds for removal
c) if you do something to take use state ct's
resources after rt. to remove = waiver of removal; almost anything beyond filing
an answer in state ct. is a waiver
d) all D's must agree to removal; 30 days starts
when 1st D served
* decide diversity when removal occurs!
VENUE
(Fed. Q & Diversity) §1391
1.
DISTRICT where all D’s reside (if D a corporation, it is deemed
to “reside” wherever it is subject to personal jurisdiction)
2.
DISTRICT where substantial part of events occurred (note: “substantial”
construed liberally)
3.
IF 1 and 2 don’t work: Wherever subj to personal jurisdiction (almost
never happens: must have foreign person and state w/ short-long-arm statute)
§1404 Transfer for
convenience
may transfer to
any district where could have been brought
-convenience of parties / witnesses
-interest of justice
you cannot
“transfer” from state to state: must get FNC motion w/ condition
§1406 Transfer due to
improper venue
ct. can dismiss
or transfer
FORUM NON CONVENIENS:
c/L, no statute
Dismissal,
not a transfer!!!
·
Relative ease of sources or proof
·
witnesses and costs
·
Possibility of viewing premises
·
Local interests in having matter
adjudicated at home
·
Unfairness to forum citizens:
burden
·
Having case tried in a forum that
is familiar with the law
·
Avoiding unnecessary conflicts of
law
·
Application of foreign law?
·
Court congestion
Often granted with
conditions like:
·
submitting to juris
·
tolling SOL
·
complying with discovery
·
complying with foreign judgments
Choice of Law
Principles: The Erie Problem
“Do not say that Federal Courts use State
Substantive law and Federal Procedural Law!”
Don’t talk about choice-of-law unless there
really is a conflict of laws.
Hanna’s
twin-aims of Erie:
1.
prevent forum shopping
2.
equitable administration of the laws (ie, same outcome, uniformity)
Federal Courts: §1652: Rules of Decision Act
“the laws of the several states” unless Federal laws apply & conflict
State Courts: Art. VI §2 (Supremacy Clause)
“Use state law unless conflicting
Federal law”
Federal law: Constitution, Treaties, Statutes,
Fed. R. Civ. P. (unless unconstitutional, i.e. substantive)
State cause of action in Federal Ct: (apply
individually to each claim)
·
Use state law unless conflicting
federal law
·
Use FRCP (must be w/in the Rules
Enabling Act, i.e., not substantive:
Justice Harlan says it’s substantive if it
“would substantially affect those primary decision respecting human conduct”)
·
Use federal “decisional practices”
(c/L) IF it passes the outcome-determinative test (if it does not affect
where someone would initially file the claim.)
Erie
Guess Reverse Erie
Guess
Federal Ct. must answer a q.
State ct. must decide on
of state law not yet decided by
a federal law/issue not yet
the State’s supreme court.
decided by the U.S. S.Ct.
[does not have to follow what
[does not have to follow what
state cts. have said]
the Circuit Ct. in it’s district has said]
If Federal Q is filed in State ct use:
·
Federal statute (coa)
·
Federal c/L (viewed as an
interpretation of the statute)
·
Always use state procedural law in
state ct (unless written into statute, like removal)
PLEADINGS
Purpose:
to inform D of lawsuit
Specificity required:
minimal but must be enough to allow D to admit or deny (respond)
Must be pleaded
specifically: fraud, mistake, special damages (only occur b/c of a special
circumstance; general damages necessarily result from the misconduct alleged;
fuzzy line? Plead specifically)
1.
Q of fact: did D do what is alleged
2.
Q of law: does it matter
Normally, we don’t plead
the law; when would you?
·
In very imp. cases to get the
judge on your side
·
to get good negotiating power
(scare tactic)
·
if Fed. and state law give the
same coa and you don’t want your case removed
Prima Facie Case: who has
the burden of pleading?
·
99% of the time, you can look at
history, but the underlying questions are “what is the purpose of the element
and whom was this element designed to protect?”
Normal Case: burden of pleading: P
affirmative defenses: burdens on D
burden of
production: P
burden of
persuasion: P
Title VII case: burden of pleading: P
burden of production
à
Presumption created
D (if met => P get persuasion back)
burden of persuasion
ANSWER:
D’s options
1) File a 12b
motion (or include w/ answer) or answer:
·
deny
·
admit
·
“don’t know” (deemed denial)
·
ignore (deemed admission)
·
admit & counterclaim (affirm.
Defense)
·
general denial: very limited per
R. 11 (in Tx general denial is very common)
2) File a 12e motion for more definitive statement:
Amendment to cure defects granted liberally (far more than 12b6);
okay as long as still arises out of same CNOF
Rule 11b) certify your
pleading
11c) sanctions
* doesn’t mean
your allegations are necessarily warranted by law that stands today,
but that you have a good, well-founded case for
changing the law.
12 b 6:
·
if a claim is ambiguous, it is
never appropriate to dismiss per 12b6 b/c ct. doesn’t yet know what the claim
is, much less if it is valid and if relief can be granted
When do you file a 12b6?
·
Incomplete: you can’t tell if all
elements are present, but you think they’re probably not
·
You can tell from the fact of the
pleading that they don’t have all the elements for their coa
REPLY: 7a - only reply to
a counterclaim (or if ct. directs)
If P
anticipates an affirmative defense, P can rebutt in his claim so case won’t be
dismissed
PRESUMPTIONS:
fact taken as true unless/until evidence is offered to the contrary;
presumptions shift the burden of proof temporarily.
Title VII “b/c of race” presumption:
P D
Burden of pleading
production presumption
persuasion;
(to rebutt
presumption)
if met
persuasion
R. 8e2: inconsistency
allowed (but is only effective in the pleading stage)
AMENDING PLEADINGS
R. 15a)
·
once as a matter of course
Within 20 days
and before answer!
·
Leave of the court freely granted “when justice so requires”
Justice 1) legitimate reason (new info.)
2) atty has been diligent in trying to obtain the info.
15b) doesn’t have to conform to evidence
(means if not plead and evidence produced, can be added to the jury charge!)
15c) Relation Back:
·
when premitted by law that gives
the SOL or
·
same CNOF
·
if changes party or names party:
·
same CNOF
·
timely notice: within the time
allowed for service (R. 4m: 120 days from filing)
·
adequate notice: must know “a
lawsuit has been filed & but for a mistake, it’d be me”
(normal interp. of “mistake” unless 7th Cir. Ill, WI, IN)
R. 16b) Scheduling order:
deadline for doing things
If the amending
pleadings deadline has passed:
1.
get ct’s permission to amend schedule
2.
then get ct’s permission to amend your pleading
12h: judgment on the pleadings: allows D to
challenge the substance of the pleadings at any time up until evidence has been
produced; once evidence shows there is a claim, it doesn’t matter if the
pleadings are sufficient.
SUMMARY JUDGMENT
R. 56
a)
When? P can file for SJ 20 days after commencement of action
b)
D can file for SJ at any time
c)
motion made 10+ days before SJ hearing
no genuine issue as to any material fact
1)
on all or part (Ct. will determine what gen. issues of fact remain)
2)
all written evidence; must be R. 11 certified
3)
if you can’t get defense/affidavits together, adverse party can use 56f
4)
absence of genuine issues of fact
5)
showing one party is entitled to judgment as a matter of law
6)
viewed in a light most favorable to nonmoving party
Adickes
standard: disprove every element of adverse party’s case (used in Tx); if the
party moving doesn’t meet his burden, the other party (even if it’s the party w/
the burden of persuasion) doesn’t have to show anything.
Celotex
standard: aligns burden same as at trial; if moving party does not
have the burden of persuasion => can specifically point out in the adverse
party’s record why it is clear they cannot meet their burden; then adverse party
can try to rebutt; if they cannot, SJ is granted
Type II (P proves P), III
(D) Types I (D v P) II (P-> D)
If moving party = burden of
persuasion (rare) does not have burden of persuasion
Must show
evidence that must show that other party has no
if true,
establishes there is evidence can est. at lease one
essential
no genuine
issue of fact element of their case;
for every element of your case
must specifically pt. to absence
12b6
SJ
Trial
no evidence
evidence presented
evidence
pleadings only
pleadings & production plead,
produce, persuade
legal sufficiency of
legal sufficiency of evidence
pleadings
no valid claim
valid claim, can’t prove
affidavits, written docs live,
oral testimony
no jury
can be jury
no credibility determinations can
determine credibility
RES JUDICATA
COLLATERAL ESTOPPEL
Claim
preclusion Issue preclusion
Merger & bar
1.
judgment in 1st case
2.
final
3.
valid
4.
same claims
5.
same parties |