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POLICY OF FRCP: 1) Just, 2) Speedy, and 3) Inexpensive determination of every action and proceeding.
EVERY CLAIM NEEDS 1) NOTICE AND OPPORTUNITY TO BE HEARD
-Opportunity to be heard: Mathews Test
-Notice: Mullane Test; FRCP 4 2) PERSONAL JURISDICTION 1) Exceptions: (waived by appearance, forum selection, personal service; etc.) 2) Long arm 3) Due Process
-Specific Jurisdiction 1) Purposeful availment 2) "Reasonableness" 3) SUBJECT MATTER JURISDICTION
-Federal Question Jurisdiction
-Substantial Federal Interest Test
-Diversity Jurisdiction 1) Amnt in controversy 2) Complete Diversity
-Supplemental Jurisdiction (SS1367(a-c))
-Removal Jurisdiction 4) VENUE
*Transfer/Dismissal + FNC
-CHOICE OF LAW 1) Hana 2) Erie
-Punitive Damages: Oberg Test
LIFE OF A LAWSUIT 1) Complaint
*Joinder of Claims + Parties 3) Discovery: Relevant?
-Work Product 4) MSJ 5) POST-TRIAL
-Appeal 6) PRECLUSION
-Issue and Claim Preclusion
1. OPPORTUNITY TO BE HEARD
ATTACHMENT?=> THEN THE INJUNCTION ANALYSIS MUST BE APPLIED AS WELL Mathews Test: BALANCE 1) Private interest that will be affected by the official action 2) Risk of an erroneous deprivation of such interest through the procedures at issue AND the probable value, if any, of additional or substitute procedural safeguards
-possible safeguards: plf shows entitlement, bond
-Procedural Due Process: notice opportunity to be heard, neutral decision-maker,
-Due process is flexible, calls for procedural safeguards that particular situation demands (Morrissey) 3) Interest of party seeking the prejudgment remedy (if gov. consider function inv.) AND the ancillary interest of the government (fiscal and administrative burdens that additional or substitute procedural requirements would entail)
-there must be some government involvement
-sometimes pre-hearing deprivations needed since def may get rid of assets to avoid judgment
-"exigent circumstances" required for pre-judgment seizure of property (Doehr)
-Hamdi v Rumsfeld: Both private and gov't interests substantial. Citizen "enemy combatant" entitled to notice of facts, fair opportunity to rebut them before neutral tribunal, right to counsel. To protect gov interests, can use hearsay, can shift burden of proof to defendant.
-CT v Doehr: plf assertion of probable cause in lawsuit not enough to seize property without exigent circumstances. Attachment significantly harms def. plf/gov interest minimal. (4 justices thought that plf should have been required to put down bond)
-Mathews v Eldridge: All factors were against Matthews. Pre-hearing discontinuation of SSA benefits does not violate due process.
2. NOTICE (Service)
*FRCP 4(c)-(f); 5(b)(2)(E)
-Only proper method matters, actual achievement of notice doesn't (irrelevant if actual notice was given)
*MUST BE RAISED INITIALLY OR IT IS WAIVED Mullane Test:
-Notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. REQUIRES 1) Content: sufficient information to notify party of how and by when it should respond 2) Timeliness: allows reasonable time to appear 3) Method: that one desirous of actually informing the party might reasonably adopt
-best method that is reasonably practical under the circumstances
-Constructive notice by posting or publication?
-in personam: not allowed
-in rem/quasi in rem: allowed IF 1) accompanied by attachment AND 2) names and addresses unkown and not reasonably ascertainable. Mullane: notice by newspaper publication insufficient for parties that could be found FRCP 4 Requirements
-Compliance w/ FRCP 4 = Compliance w/ Mullane
-Service = summons and complaint
-Served by 18 yo who is not a party, OR court appointee
-By email IF party consents in writing. Service complete upon transmission, unless serving party learns that it did not reach the person to be served. (FRCP 5(b)(2)(E))
-Method (Foreign)=> see 4f
-Method (within US) (4e) 1) Process rules of state where Federal Court is located 2) Process rules of state where service is made 3) Personal delivery (remember, not by plaintiff) 4) Leaving a copy of process at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there. 5) Delivery to agent authorized or appointed by law to receive service of process for defendant (Ex: defendant's lawyer)
-Defendant may wave formal summons requirement. Plf sends def request to waive, request has many requirements, like formal summons. 2) Failure to Waive: If defendant fails without good cause, to sign and return a waiver, the court must impose expenses incurred in making service
-Waiver does not mean that jurisdictional objections have been waived.
3. PERSONAL JURISDICTION
Analysis is based on when the defendant acted, not when the lawsuit is filed. FIRST: IS THERE AN EXCEPTION?
-Objection to PJ not raised in initial response=> WAIVED (FRCP 12)
-HOWEVER, filing of a notice of removal does not operate as a waiver of right to challenge PJ
-FRCP 4(k) Exceptions
-100-Mile Bulge Rule: if party was 1) joined under FRCP 14 (claim by plf/def against 3rd party) or 19 (required joinder), and 2) served w/in a judicial district less than 100 miles from place where the summons issued THEN PJ
-Federal statutory provision: Is there a federal statute involved here with its own service provisions for establishing PJ? If yes, then compliance w/ statute = PJ
-Alien provision: is 1) claim arising under federal law against 2) a person who is not subject to PJ in any state?
Then proceed w/ "minimum contacts" analysis with reference to US as a whole rather than a particular state.
-Voluntary appearance and defense w/out challenging PJ? Then PJ exercised.
-Individual resident of forum state?
-Forum state citizen = PJ (Milliken v. Meyer)
-POLICY EXCEPTION: based on the purpose of this exception, it arguably should be evaluated at the time of filing, not the time of the events in suit.
-State domestication statute (state requires corp appoint agent for service of process) (debate)
Plf who brings suit in-state cannot challenge jurisdiction over claims asserted against them within that action.
-Forum selection clause (Carnival Cruise): generally enforceable, even if unread, unless unreasonable under the circumstances. (High burden of proof to show this). Might be unreasonable if 1) undue influence by experienced businessman over inexperienced one, 2) Contractually designated court not neutral, not experienced w/ matter at hand 3) Enforcing clause would undermine public policy of designated forum 4) Trial would be gravely difficult in some way unforeseeable at time of contract. 5) "bad faith" 6) Subject to a remote, alien forum.
*Federal Law setting jurisdiction or venue?
*There is still debate over whether federal or state law should govern the enforcement of forum selection clauses in diversity cases.
-Individual served in forum? (Burnham) (does not apply to corporations) Scalia "tradition" plurality: personal service is sufficient. No reasonableness inquiry. (widely adopted) "continuing traditions of our legal system that define the due process standard of traditional notions of fair play and substantial justice." Brennan view: independent reasonableness inquiry still required.
-Either way, in-state presence cannot have been procured by fraud.
-In rem or quasi in rem action?
-attachment still required for jurisdiction
-Still must satisfy due process analysis (Shaffer v. Heitner)
-in rem: Nominally must satisfy 'minimum contacts' analysis, but typically no real analysis is necessary, since defendant's property w/in state normally indicates that he expected to benefit from the state's protection of his interest
-quasi in rem: property ownership = "isolated" contact, relevant to analysis below. Property alone is not sufficient to justify jurisdiction over unrelated claim (Shaffer) NONE OF THE ABOVE? THEN CONTINUE...
1) STATE LONG-ARM (FRCP 4 -analyze if defendant would be subject to PJ in state court where fed court is located) 1) Enumerated Act Statute: Specifically articulates circumstances where state courts can exercise PJ
*often interpreted very broadly so that they end up at the limits of due process. 2) Rhode Island Model: authorizes courts to exercise jurisdiction to the constitutional limit.
2) DUE PROCESS ANALYSIS
International Shoe: PJ exercised if def has "certain minimum contracts with [forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice"
*Analysis based on time defendant acted, not time of lawsuit. MINIMUM CONTACTS (4 kinds) 1) Contacts single or isolated AND unconnected w/ claim = NEVER PJ 2) General Jurisdiction Contacts continuous and systematic + give rise to claim =LIKELY PJ
*BUT, still should proceed w/ min. contacts step 2 "reasonableness" analysis anyway (courts rarely find these contacts alone to be sufficient) 3) General Jurisdiction: Contacts continuous + systematic but unconnected w/ cause of action.
-Contacts must be "substantial" (sustained, etc.)
-Continuous sales into state are insufficient for general jurisdiction (Goodyear)
-Place where corporation is "at home", this means... (Goodyear) 1) Place of incorporation OR 2) Principal place of business
-"principal place of business" (?) Not clear from Goodyear. Hertz Test? ('nerve center where officers direct co. activities) 3) 'At home' in other state? (?) unclear in light of Goodyear.
-No Gen PJ: Helicopteros: regular purchases from state + occasional meetings/training
-Gen PJ: Perkins: limited (WWII) but continuous supervision activities by CEO in state office 4) Specific Jurisdiction: CONTACTS GIVE RISE TO CLAIM, BUT SINGLE + ISOLATED PURPOSEFUL AVAILMENT + REASONABLE = SPECIFIC PJ (TWO APPROACHES)
-Conjunctive: minimum contacts' AND 'reasonableness' BOTH REQUIRED
-Brennan: "Sliding Scale" Analysis. Insufficient contacts can be compensated for by a stronger showing of reasonableness, and vice versa. (Asahi appeared to take this approach, analyzing reasonableness despite no min. contacts) 1) "PURPOSEFUL AVAILMENT "some act by which defendant purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws" (Hansen). This requirement assures that the defendant will be able to 'reasonably anticipate' where its conduct will subject it to personal jurisdiction (WW Volkswagen).
-However, foreseeability alone is not sufficient to qualify ("every seller of chattels does not, by virtue of the sale, 'appoint the chattel his agent for service of process'") Goodyear
-unilateral actions of plf or third parties will not satisfy requirement; must be based on defendant's actions (WW Volkswagen): (NY car dealer had not sold cars in OK, advertised there, or deliberately focused on or sought to benefit from OK in any way. No PJ) SPECIFIC APPLICATIONS OF "PURPOSEFUL AVAILMENT"
-Harmful conduct outside state that def knows will have harmful effects within a state: CALDER TEST: Personal Jurisdiction if...
If defendant engages in intentional wrongful conduct that is 1) "expressly aimed at" forum state AND 2) the "brunt" of the harm is suffered there
-Ex: atty lives out of state, but calls and bills in-state client. Subject to suit for legal malpractice from business activity there.
-test applies w/ less force to corporations, since they don't suffer harm in a particular geographic location like an individual (Cybersell)
-"Contracts-plus analysis" if enter into a contract w/ a forum resident. (Burger King). (This is also considered "purposeful availment")
-Consider the place of negotiation, execution, and performance of contract.
-Single insurance contract not enough (Hanson) STREAM OF COMMERCE... CONTINUE TO NEXT PAGE
-"Stream of Commerce" May be sufficient for purposeful availment...
-US state of distributor=> PJ (directed goods there). Asahi: Is mere act of selling goods outside forum state that will likely be imported into the forum state sufficient to support jurisdiction?
-(Plurality): "Stream of commerce, plus": must show "designing the product for the market in the forum state, advertising in the forum state, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum state".
-"mere awareness" that stream of commerce may sweep goods into state is not enough
-(Alternative) 4 justice view: Sending substantial quantities of goods into stream of commerce = purposeful availment. REGARDLESS of whether defendant is aware that goods will be sold in particular state, or cultivates customers there.
-defendant should be aware of possibility, awareness sufficient McInytre: Def sought to serve US market: used a different state distributor, attended conventions, at least one machine ended up in forum state. However, no PJ found, although def knew products entering US and promoted in US. Regular distribution of substantial amount of goods may be enough, even if goods are directed initially to a distributor in a different state.
-Internet Contacts sufficient? Key is still purposeful availment, try to analyze same way, regardless of medium by which contracts transmitted. Broadly based on nature and quality of commercial activity conducted over internet (Cybersell.) Zippo Sliding Scale:
-Active website? Conducts business over internet w/ forum residents. PJ
-Interactive website? (examine level of interactivity and commercial nature of exchange of information) MAYBE PJ,
-Passive website? Need additional contacts. NO PJ Cybersell: passive website (only listed an email contact) insufficient for purposeful availment. Mere fact that it can be viewed by forum state residents is not enough. Contacts mediated through internet must have been specifically directed to the forum state? (Good v. Fuji Fire) Website is vehicle thru which def markets and delivers products or services to forum state, such activity contributes to finding of purposeful availment.
-Internet ads alone are insufficient. 2) REASONABLENESS ANALYSIS: "Fair, Just, and Reasonable": 'comports with fair play and substantial justice'
-if 'purposeful availment' satisfied, PJ is presumptively reasonable, and def needs to make a 'compelling case' that these factors make PJ unreasonable (Burger King)
-5 factor analysis from Asahi (first 3 most significant) 1) Burden on defendant
-Would the inconvenience be constitutionally burdensome, meaning it would impact the defendant's ability to mount a defense?, NOT travel inconveniences 2) Forum state's interest in adjudicating the dispute
-Exs: citizenship of parties (more important); forum state's law will apply, incident giving rise to dispute occurred in forum state, state policy concerns. 3) Plaintiff's interest in obtaining convenient and effective relief
-forum state is plf's home, forum state is where plf is able to seek relief desired. 4) Interstate judicial system's interest in obtaining the most efficient resolution of controversies. Exs: efficiencies based on location of parties, witnesses, evidence 5) Shared interest of the several states in furthering substantive social policies
-(Especially important when interests of a foreign country are involved, court gives special weight to foreign interest) Asahi CHALLENGING PERSONAL JURISDICTION
-May file MTD for lack of personal jurisdiction (FRCP 12(b)(2)) OR Challenge in their first response
-Collateral Attack: Defendant doesn't even appear, and gets a default judgment against them
-Files motion in state of enforcement to declare the judgment invalid.
4. SUBJECT MATTER JURISDICTION
**Can be satisfied multiple ways, federal question, diversity, supplemental, or removal jurisdiction.
-Subject matter jurisdiction can be brought up at any time by anyone (party or court), it is required throughout the lawsuit (Federal interest)
FEDERAL QUESTION JURISDICTION CHECKLIST (28 U.S.C. SS 1331)
-Article III Const.: Must 'arise under' federal law
-Mottley "Well-pleaded complaint" rule: Claim must contain an essential federal element that appears on the face of the plf's well-pleaded complaint. (essential means that their claim could not stand w/out it)
-If the federal element is raised as an anticipated defense or counterclaim=> Must be ignored (Bracken)
-Artful Pleading? (Narrowly applied)
-Artful Pleading Doctrine: may not creatively draft complaint to avoid a federal statute. (Or creatively include a federal claim). This does not require plf to sue over federal claim if they don't have to. Plf may avoid it, they are master of complaint.
-Complete preemption? (Narrowly applied)
-Complete-Preemption Doctrine: "when federal statute wholly displaces the state-law cause of action through complete pre-emption." (Mikulski)
-Class action? See CLASS ACTION FAIRNESS ACT for requirements
-NO EXCEPTIONS? PROCEED
-Essential Federal Element: original plf's claim contains essential federal element so it arises under federal law?
(is complaint sufficient if it only alleges state law elements? Or is there some federal element that must be proven to establish their state law claim?) Federal issue must be necessary to prove the claim.
*Ignore the counterclaims and defenses of the defendant. Rationale: must determine jurisdiction first thing
-CREATION TEST?: Satisfied if the claim created by or brought pursuant to federal law. If yes, then it contains an essential federal element such that it arises under federal law. Express cause of action: Federal statute creates a federal right, and plf is bringing suit under this federal right. Plf can sue because federal statute creates a right to relief. Plf relies directly on federal law as the source of a substantive right he seeks to enforce, and it is clear that federal law expressly creates a cause of action.
-Federal law can expressly create a cause of action, or imply one. Implied Cause of Action? 4 factors to consider 1) Plf is a member of protected class 2) Evidence of Congressional intent to create a remedy either explicitly or impliedly. 3) Implying a cause of action would be in accord with the underlying objectives of the statutory scheme 4) Whether the cause of action is traditionally relegated to state law, such that the imposition of federal remedy would infringe on an area usually left to states. OR
-SUBSTANTIAL FEDERAL INTEREST TEST: (1) the state law CLAIM must necessarily raise a disputed federal issue (concerning the application or interpretation of federal law). Vindication of state law right necessarily turns on a federal issue (2) the federal interest must be substantial (1) whether case includes a federal agency (decision binding on agency? Affect ability to act?) (2) is federal question important (3) will decision on federal question resolve the case both ways (Mikulski) (4) will decision control numerous other cases Mikulsi: finding that fraudulent misrepresentation claim over tax accounting practices 1) did necessarily raise a disputed federal issue; But 2) there was not a substantial federal interest. 1) decision not binding on IRS, 2) trivial provision (no comments ever issued on it in 22 years) 3) decision in plfs favor wouldn't resolve case since they have other elements; 4) unlikely to have effect on other cases) (3) Federalism/Congressional Purpose: "exercise of jurisdiction must not disturb any congressionally approved balance of federal and state judicial responsibilities" (Grable) (would allowing federal jurisdiction in this type of case 'open the floodgates' and overload federal courts?) Merril Dow - found no federal interest because of 'floodgates' concerns; and Congressional intent - congress did not create a right to sue for FDA regulations, so fed interest not substantial
DIVERSITY JURISDICTION CHECKLIST (28 U.S.C. SS 1332) RULES FOR EVALUATION OF DIVERSITY
-Burden of proof is on party claiming diversity. Once established, burden shifts to challenger.
-Time-of-filing rule: make evaluation at time complaint is filed. (Grupo Dataflux: two partners Mexican citizens at time of filing, even though they left the partnership later, diversity must be evaluated at time of filing (policy of certainty). No DJ.
-Exceptions: complaint amended to add a federal claim (ConnectU); defect cured by dismissal of party that destroyed diversity, BUT defect added when a party who destroys diversity is added (Kroger) - NO DJ
-Improper/Collusive joinder to get diversity not allowed. If there is evidence that a party was joined solely for diversity, their citizenship is ignored in the analysis. FIRST, AMOUNT IN CONTROVERSY: Amount > $75K. (not = $75K, must be greater) "good faith claim for more than the amount in controversy, unless it appears to a legal certainty that the claim is really for less" As long as there a legitimate debate as to whether the jury might return a verdict above that amount, the statute is satisfied. Aggregation allowed if
-mult claims by one plf against one def
-Multiple parties can be aggregated if they are suing jointly on an undivided interest, or are being sued jointly. Cannot aggregate multiple defendants (w/ exception above), multiple plfs claims (unless at least one meets the amount in controversy, then others can join under sup jurisdiction Exxon)
-so a single plf may aggregate multiple claims against multiple defendants as long as one meets the amnt in controversy requirement.
-If plf recovers less than $75K (excluding def's counterclaims), court may deny costs + impose them. SECOND, DIVERSITY OF CITIZENSHIP: 1) Citizenship of parties
-Individuals: State of domicile.
-Domicile = 1) physical presence + 2) intention to remain indefinitely (no definite intent to leave at a specific time (probability of leaving sometime isn't enough) ). Domicile does not change when you move, even if you never intend to return, if you do not intend to remain at new location indefinitely. (Mas v. Perry)
-Permanent resident aliens are citizens of state domiciled in (Mas v Perry)
-Corporations: ONLY CITIZENS OF State of incorporation OR 'principal place of business'
-'Principal place of business' = "nerve center where corporation's highest level officers direct, control, and coordinate the corporation's activities. (Hertz v. Friend)
-Insurers are also citizens of the state of their insuree.
-Partnerships, LLCs, other unincorporated associations: Citizenship in every state where a partner or a member is a citizen.
-Legal representative: citizen only of the state of the party they repreent.
-Foreign Sovereign: (Foreign Sovereign Immunities Act) requires some action made by them in US 2) Diversity
-Adverse parties citizens of different states
-Adverse parties state citizens vs. aliens
-Adverse parties are citizens of different states w/ aliens included on either/both side
-Foreign state plf vs. state citizen(s) EXCLUDED: aliens not allowed to be on both sides of the "v" unless each has a US citizen co-party. 3A) Complete Diversity of Citizenship Requirement: (Strawbridge Rule)
-ALL of the parties on one side of the action must be diverse from ALL of the parties on the other side. (but aliens may be of same foreign country) 3B) Exceptions to complete diversity requirement (allowed because it is a statutorily not constitutionally interpreted rule - State Farm v. Tashire)
-Judicial Panel on Mutlidistrict Litigation (JPML)
-Civil actions involving one or more common question of fact that are pending in different districts may be transferred to any district for coordinated or consolidated pretrial proceedings. JMPL makes the transfer based on convenience and efficiency.
-Multiparty, Multiform Trial Jurisdiction Act of 2002 Allows for minimal diversity (any one plf is diverse from any one def) IF
-at least 75 people died at a discrete location; AND
-at least one defendant resides in the state of accident, OR any two defendants reside in different states, OR substantial parts of accident occurred in different states.
-Class Action Fairness Act (SEE CLASS ACTIONS)
SUPPLEMENTAL JURISDICTION CHECKLIST (28 USC SS 1367) RATIONALE: we want fed courts to decide certain issues, if plfs are unable to bring their related issues as well, then they will choose to instead bring the whole case in state court.
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