FRCP

3Commencement of action

4 Summons

8General Rules of Pleading

9Pleading Special Matters

11 Signing of Pleadings; Representations to the Court; Sanctions

12Defenses and Objections; Motions

13Counterclaim and Crossclaim

14(a)Third party practice (3rd party Ds and Ps)

15(a), (c)Amended and Supplemental Pleadings

18Joinder of Claims and Remedies

19Joinder of Parties Needed for Just Adjudication

20Permissive Joinder of Parties

21Misjoinder / Nonjoinder

23Class Actions

26Discovery

30Depositions

33Interrogatories

34Document Productions

37Failure to cooperate in discovery; sanctions

38Jury trial of right

41Dismissal of actions

42Consolidation & Separate Trials

50JML, Motions for New Trial, Conditional grants

55Default Judgment

56Summary Judgment

57Declaratory Judgment

59New Trials, Amendment of Judgments

65 Injunctions

28 U.S.C.

§1331 Federal Question

§1332 Diversity

§1367 Supplemental jurisdiction

§1391Venue Generally

§1392 Ds, Property in different districts in the same state

§1404Change of venue

§1406Cure or waiver of defects

§1441 Actions Removable Generally

§1446Procedure for Removal

§1447 Procedure after Removal

§1631 Transfer to cure want of jurisdiction

§1652 State law as rules of decision

§1738 Full Faith & Credit to State & Territorial Statutes & Judicial Proceedings

§2201Declaratory judgments; creation of remedy

§2202 Declaratory judgments; further relief

Constitutional provisions

Article III Judicial Power

Article IV, §1 Full Faith & Credit

Amend. VIIRight to Jury Trial

Amend. XIV, § 1 Due Process Clause

Personal Jurisdiction

-Does the court legitimately have power over this particular person?

-Concerned about both fairness and power

  • Fairness to D, who might be held to answer in a foreign area
  • Power of the court to exercise its authority only w/in its territorial limits

-Only worry about D being dragged into court involuntarily; whatever forum P chooses is OK, b/c P is consenting to jurisdiction

-Policy reasons for / against:

  • States have interest in protecting their citizens, providing means of redress for them
  • Increasing commerce
  • No longer as inconvenient for D to travel to defend

In personam jurisdiction & the International Shoe standard

-Have to serve notice of suit to the person while they’re in the forum state, whether or not they’re a citizen; but if they’re in the forum state, they’re fair game. Pennoyer

  • Also, based on the idea that you can’t always wait on a determination of rights until the person returns to the forum state

-Constructive service is no good for an in personam action. Pennoyer

-Exceptions under Pennoyer:

  • Can determine status relationships, even for those not in-state (i.e. divorce)
  • Business relationships: states can force Ds to have an agent in-state, who can be served with process
  • OK for corporations, but trickier for persons, who have a constitutional right to travel
  • State can imply that a person consents to the appointment of an agent, who may be served with process, from a person’s activities in-state. Hess
  • Don’t take it too far – part of it is that there is a concern about reckless driving & that the state can’t do a thing, otherwise. Hess
  • Also, implicit consent only applies to things relating to the activity that gave rise to consent (i.e., the accident relating to the reckless driving). Hess.

-Minimum contacts:

  • Corporations can always be sued in the state of incorporation and in the state where HQ is located
  • Also, can be sued in any state in which they have “minimum contacts.” – International Shoe
  • Minimum contacts must be such that the suit “doesn’t offend traditional notions of fair play and substantial justice”
  • “Fair play and substantial justice” may also be a separate consideration from “minimum contacts” – also consider burden on D, interest in forum state of resolving the dispute, judicial sys’s interest in efficient res of controversies, social policies of states – BK
  • Or, that it’s reasonable to ask the corp. to defend suit
  • Minimum contacts only justify suit against a corporation where there is a relationship btw contacts and underlying dispute
  • A contract w/ someone in the forum state is a “substantial” contact – or at least a minimum contact sufficient for a lawsuit relating to that contract. May or may not be substantial for general jurisdiction. McGee
  • Minimum contacts can be established where a corp. “purposefully avail[s] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws” – but when this hasn’t happened, no minimum contacts. Hanson
  • Unilateral action of one party (not D) not sufficient under Hanson
  • To determine the type of contact, look to nature of corp.’s activity, whether court has availed itself of the forum state’s laws, etc.
  • “Minimum contacts” analysis applies to people too, and to adjudications about property. Shaffer
  • Minimum contacts may be established by injecting goods into the “stream of commerce,” but only if the seller so injects them, expecting that they’ll make it to the foreign state (like selling to people there) – Worldwide VW
  • NOT sufficient for minimum contacts if you sell a product and then the buyer takes it to the forum state (Brennan)
  • Due Process clause does have some teeth, concerned about state power & not just state interests & actual inconvenience to D (as Brennan is) – Worldwide VW
  • Foreseeability (or fair warning) is relevant to minimum contacts, in the sense that you have to ask whether it’s foreseeable that a certain amount of contact will justify hauling D into court – Worldwide VW, Burger King
  • Foreseeability in terms of “was it foreseeable that the product would end up there” does not matter – WW VW
  • D does have fair warning when D “purposefully directs” his activities at residents of the forum state, and litigation results from injuries “arising from or relating to” D’s activities – BK

-Asahi – it is “unreasonable and unfair” to ask a foreign corporation to defend suit in the US against a foreign plaintiff, when the original US citizen plaintiff dropped out

  • This result even though there’s a dispute over whether minimum contacts existed
  • Dicta (only joined by 4): No minimum contacts if you sell a product, knowing that it will end up in the forum state, if you’re not targeting that state (i.e. you sell to a middleman who sells some of your stuff there)
  • “Minimum contacts” & “fair play & substantial justice” now treated as 2 separate tests

-General personal jurisdiction: If a corporation has “substantial contacts” with a forum state, then people may sue the corp. there even for things not having to do with its activities in the forum state. International Shoe

  • Must be “so substantial” as to justify jurisdiction on causes of action unrelated to its in-state activities. Coastal Video
  • In old economy, look to: does it have a store there, how much business, is there an agent appointed to receive service
  • In high-tech economy, look at: # of hits, sales in forum state from the co’s website; how is the website set up (how interactive)
  • State has general jurisdiction over any person traveling within its borders, when that person is personally served. Burnham
  • Question about whether this always applies, or whether an independent fairness inquiry is necessary – SC was divided in Burnham

In rem jurisdiction

-Property must be attached before the suit, & constructive notice is OK based on the legal fiction that people are in control of their property at all times. Pennoyer

-Now, in order to have a lawsuit about property, the presence of property is relevant insofar as the dispute is over a piece of property. Shaffer

  • Proceedings in rem no longer sufficient to establish jurisdiction, unless it otherwise exists under minimum contacts analysis. Shaffer

Quasi-in rem jurisdiction

-Person could attach property and then sue a nonresident D up to the value of the attached property. Allowable under Pennoyer.

-Can also attach debts: A (FL) owes $ to B (FL), who owes $ to C (ME)

  • A travels to ME; while there, A’s debt to B is attached by C
  • Maine obtains jurisdiction over B, w/o B having ever been to ME

-Abolished by Shaffer – since property is the relation of people to things, attachment no longer enough – now, need to ask the “minimum contacts” question for all suits vs. Ds

Statutory limitations on personal jurisdiction

-State, federal courts might limit themselves to less jurisdiction than the constitutional maximums, tighten their jurisdictional requirements

-Long-arm statutes

  • Allow state courts to reach beyond their borders to serve Ds, in the post-Pennoyer world
  • Some grab as much jurisdiction as the US Constitution allows (CA) (i.e. International Shoe, minimum contacts), others do not (FL)
  • It was not “substantial activity” under a long-arm statute requiring this that a person brought an earlier suit in state court. Gibbons.
  • Bringing one suit is isolated activity and does not suffice to show “substantial activity” for the purpose of establishing jurisdiction under the FL long-arm statute, as to other, unrelated matters – would be OK for subsequent court proceedings on the same subject matter of the action. Gibbons
  • Northwest Airlines v. Friday – MN’s long-arm statute was very fact-specific, and for the most part conformed to the constitutional max of jurisdiction – but there were some limitations. Really have to change facts to establish minimum contacts
  • Example of how you can have minimum contacts, but not necessarily jurisdiction under long-arm statutes

-Venue

  • Strictly statutory creation, not a constitutional concern
  • Personal jurisdiction locates w/in a state (or federal system for that state), venue w/in a particular federal district
  • Venue statutes: 28 USC 1391-92, pp. 322-24
  • 1391 – will need to look to the rule for test, but generally allows suit in any district where any D resides, or where a substantial part of the events occurred, or where a substantial amount of the property is located (if the suit is about property)
  • These rules, exclusively, for supplemental jurisdiction
  • Some slight changes for gov’t, foreign governments
  • Statute defines where corporation “is”
  • Also, rules differ slightly depending on personal / subject matter jurisdiction
  • Aliens can be sued anywhere
  • 1392 – for a civil action that involves property in different districts of a state, suit may be brought in any district
  • 1406, p. 326 – if venue’s wrong, district court may dismiss or transfer
  • But, district court has power to keep the case if the venue objection isn’t timely or sufficiently made

-Forum non conveniens

  • 1404(a), p. 325, allows transfer of case to any other district or division where it might have been brought
  • Rest of 1404: allows transfer to another division, w/in district
  • Forum non conveniens is not statutory at all, purely common law
  • FNC is a Discretionary doctrine – Piper case
  • Ordinarily respect P’s choice of venue
  • But, may transfer if this venue is “oppressive and vexing to D out of all proportion to P’s convenience”
  • Look to 3 factors:
  • Whether another forum exists in which the case could be brought,
  • Burden of D is out of proportion to P’s interests (private interests)
  • Forum is inappropriate b/c of legal problems presented to the court (public interests)
  • Private factors include: access to evidence, ability to subpoena witnesses or implead 3rd party Ds, costs of obtaining attendance, all sorts of practical problems, whether or not remedies are available or restricted in other fora
  • “This forum has more favorable law to me” does not count, for either side
  • Public interests include: which law will apply, and if that’s a problem (US courts applying Scot law), avoidance of conflict of laws, strength of the forum’s interest in the case, unfairness of burdening citizens in unrelated forum with jury duty

Summons & Service

-Service effectuates power, but doesn’t create it – need both power and notice

-Rule 4 governs summons & proper service of summons

  • Forms 1-A and 1-B – examples of waiver request & waiver

-Parties have a duty to keep costs of service down; P can ask D to waive service

  • Carrot: If D does, he has longer to respond to the complaint (60 instead of 30 days)
  • Stick: if D does not, he may bear the cost of service

-Service cannot be a mere token gesture. Mullane

  • Must be “of the nature to reasonably convey the information and must accord a reasonable time to make an appearance
  • If you have the names & addresses of the affected parties, then you at least have to mail notice to them (but don’t need to personally serve)
  • On the other hand, notice by publication may be adequate for:
  • Seizure of tangible property for in rem proceedings might still be good, but Pauline is unsure – it’s a matter of state law
  • When persons are missing / whereabouts unknown
  • State need not require “more certain notice” for those whose interests are future, conjectural, or unknown

Subject Matter Jurisdiction

-Does the court legitimately have power over this particular dispute?

-Article III defines the judicial power; Congress can establish lower courts w/ power to hear cases and controversies arising under laws of US (federal question) or btw citizens of different states (diversity)

-May want to bring cases in federal vs. state court b/c:

  • Party’s interests
  • Different law might apply
  • Different procedures (maybe faster in federal court)
  • More / less favorable jury pools
  • Fed courts can transfer to other fed courts; states can’t
  • Political theory interests
  • Preserve separation of powers
  • Have cases with broader policy implications tried in federal court, rather than more “private disputes”?

-While personal jurisdiction objections are subject to “raise it or lose it,” subject matter jurisdiction issues can be raised @ any time, including by the court, sua sponte

  • Personal jurisdiction – its about these parties
  • Subject matter jurisdiction – about the powers of the courts, preserving space for the states & limiting federal power

Federal Question

-1331, p. 313 – Federal district courts have original jurisdiction over all civil actions arising under laws, treaties, Constitution of US

-“Well pleaded complaint rule,” Mottley:

  • A suit only “arises under” the Constitution or laws of US when P’s own claim is based on the laws / constitution
  • P’s claim must appear in a “well pleaded complaint,” which states only the basis for P’s cause of action; does not anticipate D’s defenses
  • D’s defenses cannot get a case into federal court
  • This sorts out cases @ the beginning of the lawsuit

-“Aising under” has narrower meaning in statute than in Constitution – Harms

  • Constitution: arising under = any case in which there’s a necessary “federal ingredient,” even if that ingredient is uncontested (CJ Marshall in Osborn)
  • Holmes: different test for statute: whether the cause of action was created by federal or state law

- The SC has the full Article III power, if a case starts in the state system and works its way up, so they are not limited by “well pleaded complaint” rule

Diversity

-Reason for diversity jurisdiction: fear of bias against litigants from out of state & in favor of in-state litigants

  • Might not be as big a factor today, but we still have it

-Citizenship measured as of the date of filing

-1332, p. 313 is diversity jurisdiction statute

  • Matter in controversy must exceed $75,000
  • Or, $5,000,000 total for a class action
  • If P ends up recovering less than $75,000, court can deny recovery and/or impose costs
  • Must be between citizens of different states – Need complete diversity on both sides, anything else defeats diversity (Has been accepted since Marshall in 1806)
  • Requirement is statutory, not constitutional
  • Can only be a citizen of one state – not like “minimum contacts”
  • A person is a citizen of the state in which he is “domiciled, which involves 1) physical presence, and 2) intent to remain there. Hawkins v. Masters Farms
  • A person living in the US is going to be domiciled somewhere, even if there is difficulty – only time you might not have state citizenship is for person abroad
  • If there’s a question (physically present one place, intent to remain elsewhere) – courts would probably find “intent” more important
  • Vague ideas, plans to move don’t count if you don’t do anything about it
  • It is possible for an American living abroad not to be a citizen of ANY state, but they are not treated as foreigners under the FRCP – rather, they just can’t bring their claim in federal court if it’s on diversity grounds. Redner v. Sanders
  • Could always sue in state court, which has jurisdiction over D (P consents to jurisdiction by filing)
  • An alien permanently residing in US is a citizen of the state of his domicile. 1332(a)(4)
  • This was done for the purpose of reducing jurisdiction, so that P (MO) v. D (Alien in MO) can’t get into fed.dist.ct.
  • Though read literally, it does NOT grant jurisdiction over a suit btw 2 aliens, when 1 is a permanent resident. Saadeh v. Farouki
  • BUT – 3rd circuit came out the other way
  • Statute defines residencies of corporations, insurers, legal representatives of another party
  • Cases involving foreign states or nationals also involve this provision

Challenging Jurisdiction

Personal

-Used to make a “special appearance” so that you wouldn’t be conceding jurisdiction

-Rule 12(b) allows following defenses to be made in answer or pretrial motion: lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service, failure to state a claim, failure to join a party (Rule 19)

  • These defenses can be heard b/f trial @ either party’s application, unless court determines that they’ll be deferred to trial – 12(d)
  • D may join these defenses in 1 consolidated motion, 12(b, g)
  • Joining them in one motion doesn’t waive them, 12(b)
  • But, D does waive them by omitting them from the motion, with some exceptions, 12(g)
  • Lack of personal jurisdiction, insufficiency of venue, of process, or of service is waived if:
  • Not included as part of a pretrial motion under 12, 12(h)(1)(A)
  • Not raised in pretrial motion, answer, or amendment 12(h)(1)(B)

-What do you do when D challenges personal jurisdiction? Data Disc

  • If you only have affidavits + discovery materials (papers):
  • Make a prima facie showing of jurisdiction
  • Must prove jurisdiction @ trial, by preponderance
  • If you have more:
  • Court holds hearing
  • Prove jurisdiction by a preponderance @ pretrial hearing
  • If jurisdiction is really tied up w/ merits, court can postpone the issue to trial

-1631, p. 333 – when a case is brought in the wrong jurisdiction, trial court may transfer it to the correct jurisdiction

Subject matter

-Court can dispose of it under 12(b)(1), lack of subject matter jurisdiction

  • This is the only method for diversity cases

-Or, can dispose of it under12(b)(6), failure to state a claim, b/c “arising under” depends on the substance of P’s claim

-SC has expressed preference that it be handled under 12(b)(6), if there’s an arguable basis for federal claim

  • Affects the preclusive effects under issue preclusion;
  • Also affects power of the court to adjudicate ancillary claims

Directwaiver if notif court agrees if D defaults