Civil Procedure Richard Freer Notes

I. Personal Jurisdiction o Can the person sue the D in this state?  In any case, the court must have power over something: 1. Power over the D himself 2. Power over the D's property o Three kinds  In Personam 1. Power over D himself  Connection with forum  Service of process  Purposeful availment 2. Will always be general or specific  General (Domicile):  D can be sued in this state on a claim that arose anywhere in the world  Service of process in the forum state  D domiciled in the state or "essentially at home" in the forum state  Goodyear:  D is subject to general jurisdiction only where it is essentially at home  Daimler:  Corporation is at home in two places: 1. Place of incorporation 2. Principle place of business (Headquarters)  D consents to jurisdiction  Specific:  D sued on a claim that arises in the forum state  Purposeful availment  International Shoe:  Jurisdiction if the D has such minimum contacts with the forum such that the jurisdiction does not offend traditional notions of fair play and substantive justice  Analysis: 1. Is there a relevant contact between D and the forum?  Purposeful availment by reaching in to the forum state  Must be foreseeable the defendant could get sued in the forum state 2. Assuming there is a contact, is the minimum contact related to the cause of action?  Yes, then specific pj  No, then general pj 3. Whether jurisdiction would be fair?  Only applies in specific PJ  Asahi 5 fairness factors:             Burden on the D  D must show that litigating in the forum state creates a sever disadvantage on the d (BK) Forum state's interest in the litigation P's interest in the litigation Legal system's interest in efficiency Shared substantive policies of the state McGee:  Tiniest form of minimal contacts  Solicited business  State interest in resolving dispute Hanson v. Denckla:  Under IS, the contact between D and forum must result from the D's purposeful availment  In Hanson, no purposeful availment WWVW:  No purposeful availment  D had not reached out to forum state  Foreseeability that product will enter the stream of commerce is not enough Calder:  FL citizen writing an article about actress in CA  Sued in CA  Calder Effects Test:  Targeting the forum state and causing an effect in the forum state without stepping foot in the forum state BK:  Contract case  I.S. consists of two parts:  Must have minimum contacts related to the cause of action  Burden on the D to show that the forum is constitutionally inconvenient that they are at a severe inconvenience in the forum Asahi:  Theory 1:  It is a contact if you put a product in the stream of commerce and can reasonably anticipate that it will get in the forum state (4-Brennan)  Theory 2:  Need an intent to target and to serve the market in the forum state (4-O'Connor)  i.e. Advertising, Providing customer service McIntyre:  P injured from machine while in N.J.  Theory 1:  No jurisdiction because no targeting to the forum state (4- Kennedy) No jurisdiction since only one machine sold in N.J. (2Breyer)  Theory 2:  Jurisdiction when you sell into the stream of commerce (3- Ginsberg) Burnham:  NJ citizen sued in CA and sued while in CA  Claim arose in NJ  Does presence, when served with process, give jurisdiction?  Yes jurisdiction (4-Scalia)  I.S. is irrelevant since this is a traditional basis  Yes, but must apply International Shoe to all cases (4)  Court said yes it did satisfy PJ    II. In rem  No power over D himself, but property in state & Court has power over that property  Exercise jurisdiction over the property  Quasi- In Rem  Shaffer v. Heitner  Property cannot be the hook that drags someone into a state's jurisdiction o Long-Arm Statute  State statute that allows for personal jurisdiction  Step 1: Whether there is a state statute that allows jurisdiction in this case  Step 2: Would jurisdiction be constitutional?  Two Types: Notice, Service of Process o Due Process requires that D be given notice of the impending lawsuit and the opportunity to be heard o Rule 4: Service of Process  The way to give notice to the D about a lawsuit  Six things to know: 1. Process consists of a summons and a copy of the complaint 2. Service can be made by any non-party who is at least age 18 (4(c)(2)) 3. How to serve an individual  Rule 4(e)(2)  Three ways to serve process: 1. Personal service anywhere 2. Substituted service  Only done at the D's dwelling or usual abode, i.e. house, summer house, AND must serve someone of suitable and discretion who resides there  No magic age, but the person must reside there 3. Serve on the D's agent  Someone appointed by contract  Rule 4(e)(1)  II. Allows you to use methods of service permitted under state law 1. i.e. Service of process by certified mail 2. How to serve process on a business: Rule 4(h)(1)  Serve an officer or managing/general agent  Office: Corporate president, secretary, etc.  Managing/General agent: Someone with sufficient job responsibilities that we'd expect that person to transmit important papers  4(e)(1) also applies  Allows service through methods permitted under state law in federal court 1. Waiver of process: Rule 4(d)  Under the certified first-class mail  P mails to the D process and two copies of the waiver form  If D signs waiver form and mails it back in 30 days, the formal service of process has been waived 1. D only waives formal service of process 2. If waive, 60 days to respond  If D does not return waiver form and does not have good cause, D must pay the cost of service 1. Geographic limitation: Rule 4(k)(1)(a)  Serve process throughout the state in which the federal court sits AND outside the forum if a state court could do so as well  i.e. Federal court in CA can only service process to some person outside the state only if a state court could have done so 1. Look to long-arm statutes of the state o Constitutional Requirement for Service  Mullane:  Notice must be reasonably calculates under all the circumstances to apprise the party of the proceeding  Does not require actual notice  Upheld publication notice to those who could not be readily identified  Last resort  Jones v. Flowers:  If it becomes clear to the P that the notice was not received, then the P has to go through some other means to serve process o Opportunity to be Heard  Often in commercial transactions Subject Matter Jurisdiction (SMJ) o Power over the case- can this court hear this kind of case o State courts are courts of general jurisdiction o Federal courts are courts of limited jurisdiction  Diversity Citizenship (U.S.C. Section 1332(a)(1))  Complete diversity in citizenship  No diversity if any plaintiff is a citizen of the same state as a defendant (Strawbridge)  Domicile Individual (1) Retains that domicile until affirmatively live in a new state and intent to remain in that state  Has a home,  Corporation (2) (U.S.C. Section 1332(c)(1))  Place of incorporation AND  Principle place of business (headquartered)  The nerve center Amount in controversy exceeds $75,000  75,000 and a penny  Whatever the plaintiff claims will govern unless it is clear to a legal certainty that the P cannot recover more than $75,000  Aggregation of claims:  Aggregate the P's claims of one plaintiff versus one defendant  No limit on aggregation  Claims need not be related in anyway  Cannot aggregate if multiple parties on either side  With a joint claim, use the total value of the claim  Number of parties is irrelevant Federal Question (U.S.C. Section 1331) Claim arises under federal law  i.e. Bankruptcy, Patent infringement Well-pleaded complaint  Only look at the complaint and in the complaint, ignore everything except the claim itself and that claim must arise under federal  Is the P enforcing a federal right?  Yes, then federal question  No, then not federal question  Mottley:  When looking at the claim in the well-pleaded complaint, the claim must arise under a federal question Supplemental Jurisdiction (U.S.C. Section 1367) (DOES NOT GET CASE INTO FEDERAL COURT) A new claim to the case that is properly in federal court  Additional claims being added  For every claim, there must be SMJ  Either Diversity or FQ Does 1367(a) grant supplemental jurisdiction over this claim?  Yes, if it meets Gibbs Does 1367(b) take away supplemental jurisdiction?  Applies only to diversity citizenship  Only kills Supp. Jurisdiction of claims by Ps in diversity cases and claims by P joined under 14, 19, 20, and 24 (intervener) Gibbs:  Supp. Jurisdiction if claim shares a common nucleus of operative facts                       II. Venue o o o Same transaction/occurrence and same evidence/witnesses Removal Jurisdiction (U.S.C. Section 1441) (JUST DO IT) D has choice to litigate in state court or federal court  Removal from state court to federal court  Does not require permission  File notice of removal If P thinks the removal was improper, then the P must remand to move the case back to state court P can never remove D can remove if the case could have been brought in federal court  Case meets requirements for diversity and federal question  EXCEPTION:  Cannot remove a diversity case if any defendant is a citizen of the forum Must remove within 30 days of service of process All D's, who have been served with process, must join in the removal 30 days for removal starts over with each newly served D Remove only to the federal district court that embraces the state court where the case was filed Tells us which federal court to go to Basic Rules for Venue:  Section 1391(b)(1)  May lay venue in any district where all Ds reside  If all Ds reside in the forum state, then may lay venue in any district where one of them resides Resides = District in which you are domicile  Section 1391(b)(2)  P may lay venue in any district where a substantial part of the claim arose  i.e. Breach of contract: where the contract was negotiated, entered, or performed  For businesses, a business resides in all districts where it is subject to person jurisdiction for this case  Section 1391(b)(3)- Fallback Venue (RARE)  Almost never applies  Only applies when there is no district in the U.S. that will meet the previous two choices Transfer:  From one federal district court to another federal district court  Cannot transfer from one state court to another state court  Original federal district is the transferor and the one to which we transfer is the transferee  U.S.C. Section 1404(a)  Transferee must have proper venue and PJ over the D  Must be true without waiver by the D  Court may transfer to another district based on the convenience of parties/witnesses and based on the interest of justice  Transferee makes more sense then the current venue V. VI.  Is the other court the center of gravity?  Forum Non Conveniens  Dismiss case because there's another venue that'd be better, that is the center of gravity and is a lot more convenient  Dismiss case because transfer is impossible since the other court is in a different judicial system  Center of gravity, more convenient court is another country  Piper:  Case should be dismissed since the litigation would be more convenient in another place  Consider public and private factor:  The other court must be available and adequate  Adequate = P gets a chance to be heard Erie Doctrine o In federal court under diversity jurisdiction  Issue if judge must apply state law or choose to ignore it  Erie:  In diversity case, federal court must apply state substantive law (U.S.C. Section 1652)  Answer compelled by rules of decision act and constitution (10th amendment)  Interpreting Rules of Decision Act:  Apply state statutes and state common law  EXCEPTION:  In civil procedures, use the FRCP  FAKE ERIE: If federal provision that clashes with state law, then apply federal provision  York:  Substantive law includes outcome determinative law  In a diversity case, federal judge must apply state law  Prevent forum shopping Pleadings & Motions o Rule 11:  Avoiding frivolous claims  Applies to all documents except for discovery documents  Requires attorney to sign and certifying various things (Rule 11(b))  Made a reasonable inquiry  Document not for an improper purpose  Legal contentions are warranted  Factual contentions will have evidentiary support, or are likely to  Denials of factual contentions will have evidentiary support, or are likely to  Rule 11(b)  Continuing for certification  Sanctions for the violation of Rule 11 are discretionary  Sanctions are to deter  A motion for sanctions cannot be filed immediately  Must draft motion and serve on the other party, and give them 21 days to fix the problem (SAFE HARBOR) o o o Rule 8(a)  Complaint must have:  Statement of SMJ  Short and plain statement of the claim  Demand for relief Greater detail in P's pleading  Twombly:  Iqbal:  P must plead facts supporting a plausible claim  The court ignores conclusions of law, and focuses only on the alleged facts  Facts must support a plausible claim, not just a possible claim  To determine plausibility, the judge uses their own experience and common sense  Rule 9(b) & Rule 9(g): Heightened requirements:  If alleging fraud, mistake, or special damages  Allegations must be pleaded with particularity/detail Rule 12: Answer  Respond by motion or by answer  Must respond no later than 21 days after you are served with process  If waived service of process under Rule 4(d), then the D has 60 from the date that the P mailed the waiver form to respond  Motions are not pleading  Request for a court order  Rule 12(e)  Where D cannot respond since complaint is intelligible  Rule 12(f)  Motion to strike  Asking the court to strike things from pleadings  Irrelevant/Scandalous allegations  Rule 12(b)  Seven defenses and able to have motion to dismiss on either:  May be asserted in motion to dismiss or in the answer as affirmative defenses  SMJ  PJ  Improper venue  Improper process  Documents were not okay  Improper service of process  Documents were not served properly  Failure to state a claim  Failure to join an indispensable party under Rule 19  Rule 12(g) motion must be brought in  12(b)(2-5) must be put in your first Rule 12 response (Rule 12(h)(1))  Either motion or answer  Or else the are waived  12(b)(6) or (7) may be raised for the first time any time through trial (Rule 12(h)(2))  12(b)(1) never waived (Rule 12(h)(3))  Answers are pleadings  II. Under Rule 8(b), the D must respond to the complaint  Three possible answers:  Admit (Rule 8(b)(1)(B))  Deny (Rule 8(b)(1)(B))  Don’t know (Rule 8(b)(5))  Failure to deny constitutes an admission on any allegation exception damages (Rule 8(b)(6))  i.e. The P does not have proof of XYZ  General denial (Rule (b)(3))  Under Rule 8(c), D must raise affirmative defenses  You must plead affirmative defenses or else they're waived o Amended and Supplemental Pleadings  Amended Pleadings Steps:  Rule 15(a)  Three rules  P has a right to amend within 21 days after D served their first Rule 12 response (Rule 15 (a)(1)(A))  D has right to amend once within 21 days after serving their answer  Ask court for permission to amend if after the 21 days (Rule (a)(2))  Rule 15(b)  The evidence at trial does not match what was pleaded  If D does not object to the variance, then pretend that the new claim was in the pleading all along  Rule 15(c): Time Travel  Amendment after the statute of limitations has run  Amend to add a claim OR  Amend to change a D  The amendment must relate back  Rule 15(c)(1)(B)  Allowed for relation back if new claim arises from same conduct, transaction, or occurrence as the original claim  Rule 15(c)(1)(C)  Only get relation back to amend D if you sued the wrong defendant first but the right D knew about it  Rule 15(d): Supplemental Pleadings  Want to add something that happened after the case was filed  Must ask for court permission Joinder o Every claim must have subject matter jurisdiction o Rule 20(a): Proper Parties  Who MAY be joined  Multiple plaintiffs for multiple defendants  Rule 20(a)(1): Plaintiff joinder  May join if claims arise out of the same transaction or occurrence (Rule 20(a) (1)(A)) AND the claims raise at least one common question (Rule 20(a)(1) (B))  Rule 20(a)(2): Defendant Joinder  o o o o o May join if claims arise out of the same transaction or occurrence (Rule 20(a) (2)(A)) AND the claims raise at least one common question (Rule 20(a)(2) (B)) Necessary and Indispensable Parties:  Rule 19: Required Joinder of Parties  Case has been filed, but the P left someone out, therefore non-party  Court may add non-party since it is necessary  Steps  Is the non-party necessary?  Yes if meet any of the tests in Rule 19(a)(1)  Three tests:  Without non-party, the court cannot afford complete relief among the parties (Rule 19(a) (1)(A))  The non-party's interests may be harmed if they are not joined (Rule 19(a)(1)(B)(1))  The non-party's interest may subject the D to multiple or inconsistent obligations (Rule 19(a)(1)(B)(2))  Is Joinder of the non-party feasible?  Joinder is feasible if:  There's PJ over  If bring the non-party does not mess up diversity jurisdiction  Is Joinder of the non-party is not feasible? (Rule 19(b))  Court must proceed without the non-party OR  Dismiss the case  IF the court decides to dismiss, then the nonparty is indispensable under Rule 12(b)(7) Claim Joinder by Plaintiff:  Rule 18(a):  P able to assert all the claims in one case against an opposing party Counterclaims- D against P and filed in the answer  Rule 13(a): Compulsory Counterclaim  Must assert it in this case or you waive the claim  Rule 13(a)(1)(A) arises from the same transaction as the P's claim  If you don’t use it, you lose it  Must assess SMJ  Rule 13(b): Permissive Counterclaim  May assert it in case or in a different suit  Must assess SMJ Crossclaims- Against a co-party  Must arise from the same transaction or occurrence (Rule 13(g))  NEVER COMPULSORY  Can only have a crossclaim when P used Rule 20 to have multiple parties on both sides  If claim by D, then supplemental jurisdiction under U.S.C. Section 1367(b) applies Rule 14: Impleader (Third-Party Practice)  Joining someone knew    o o Defending party joins a new party --> Third-Party Defendant The impleader may be liable to you, the D, for the plaintiff's claim against you Rule 14(a)(3): Plaintiff can assert against the impleader  If the claim arises out of the same transaction or occurrence  Must have SMJ or supp. Juris.  Rule 14(a)(2)(D): Third-part defendant may assert a claim against the P if it arises out of the same transaction or occurrence as the Plaintiff's claim against the thirdparty plaintiff  Must have SMJ or supp. Juris. Rule 24: Intervention  Non-party wanting to join the case on her own  Two kinds:  Intervention must be timely and the intervener must decide which side to the case to come in  Intervention of Right: Rule 24(a)(2)  Right to intervene if your interests may be harmed if you are not joined  Permissive Intervention:  Show that claim or defense and the pending case have at lease one common question  Discretion of court to allow you in Rule 23: Class Action  Seven things to know  The pre-requisites  Rule 23(a): In every class action, must show four things  Too numerous for practical joinder  Some question in common to all the class members  The representative's claim must be typical of those of the class  Rep with adequately represent the interests of the class  Types of classes (Rule 23(b))  Rule 23(b)(1)  Rule 23(b)(2)  Damages class action (Rule 23(b)(3))  Must show:  Common questions predominates over individual questions  The class action is the superior way to resolve the dispute  The case is not a class action until the court certifies it as such  Notice of pendency  In the B3 class, the court must give individual notice to all members reasonably identifiable  ONLY REQUIRED IN THE B3  Rule 23(c )  Members can be opt out and if they do not, then they are bound by the decision  Representative pays to give this notice  All class members are bound by the class except for those who opt out of B3  NO RIGHT TO OPT OUT OF B1 or B2 Settlement or dismissal of certified class must be approved by the court  Class can assert a question under FQ, but under diversity,  Look only at the representative for citizenship and must be diverse from all of the defendants  Look only to the representative's claim to see if the claim exceeds $75,000 Rule 23(g): Judge must appoint class council  II.  Discovery o Rule 26(g): Certification requirement  When you sign discovery documents, certifying that they are complete and not for an improper purpose o Rule 26(a): Required Disclosures  Must produce certain information without a request from the other party  Come up at three times  26(a)(1)  Required initial disclosures  Must disclose at least 14 days before the Rule 26(f) conference  Must identify people with discoverable info that you may use to support your case  Must give copies or descriptions of things that you may use to support your case  If you know something that may hurt your case, then not required to disclose in an initial disclosure  P must give a calculation of damages  D must disclose any insurance that they may have for this case  26(a)(2): Expert Testimony  26(a)(3): Pretrial Required Disclosures  Close to trial  Must tell what you are going to raise at trial o Discovery Tools  Asking the other side or non-party for information  Deposition  The deponent testifies orally under oath  Answering questions that were proposed  May take deposition from non-party  Subpoena them or else they are not required to attend  Interrogatories (Rule 33)  Written questions answered in writing under oath  30 days to answer them  Good for lists  Can only be sent to parties, NOT non-parties  Request to produce (Rule 34)  Written request or access to things  Rule 34(c)  May use this to get info from non-parties but you should subpoena the non-party  II. Medical exam (Rule 35)  MUST have court order  Only tool that requires this  Must show that the medical condition is in controversy in this case and show good cause  Can only get order to examine a party or someone in the party's custody/legal control (narrow)  Does not include employer/employee  Request for admission (Rule 36)  Admit or deny any discoverable matter  Ex: Were you drinking alcohol while driving the car?  If you do not deny within the 30 days you are given, the presumed to be admitting  This is only available to parties, cannot send to non-parties o Scope of Discovery  Rule 26(b)(1): Standard  Can discover material that is relevant to a claim or defense, and proportional to the needs of the case  Relevant not admissible  Ex: Hearsay is relevant although it wont be admissible, but still discoverable  Privileged matter is not discoverable even if it is relevant  Attorney-Client privilege protects confidential communications between lawyer and client  It's on the other party to object  Trial preparation materials (Rule 26(b)(3))  Work prepared in anticipation of litigation is privileged material  Can override trial prep materials if you show (1) substantial need and (2) the information is not otherwise easily available  I.e. witness statements that are no longer available  Can never get mental impression, conclusions, opinions, and legal theories  Can be generated by the party or any representative of the party  Does not have to be a lawyer, i.e. a secretary, private investigator o Enforcement of the Discovery Tools  General rule, three ways court may become involved in discovery squabbles  Must meet and confer with the other side before involving the court (Rule 26(f))  The responding party asks for a protective order (Rule 26(c))  Asks court to protect you since the discovery requests subjects you to undue burden or undue expense (Rule 26(c )(1))  The party seeking the discovery files a motion to compel  Motion for sanction (Rule 37(d)(1)(a)) when responding party is completely unresponsive o Conferences and Judicial Management  Court must enter a scheduling order for how the litigation is going to proceed Adjudication o o o Rule 12(b)(6)  Motion to dismiss for a failure to state a claim  Look at the face of the complaint, four corners of the document  Twombly, Iqbal  Court ignores conclusions of law and looks only at allegations of fact  The facts alleged must support a plausible claim, not just a possible claim  To determine plausibility, the judge uses their own experience and common sense Rule 56: Summary Judgment  Weed out cases in which a trial is not necessary  If before you go to trial and parties show there is no dispute of fact, then motion for summary judgment  Must show:  No genuine dispute on a material fact  Moving party is entitled to judgment as a matter of law  Trial courts should grant summary judgment Adjudication at Trial  Jury decides questions of facts