Civil Procedure Outline

I. Personal Jurisdiction
a. Constitutional Limits on Personal Jurisdiction – Due Process and the 14th
Amendment.
i. Minimum Contacts Test (International Shoe v. Washington)
1. Systematic and Continuous and give rise to the claim
a. there will always be personal jurisdiction.
2. Systematic and Continuous but the claim does not arise from
it.
a. Jurisdiction is appropriate if the contacts are substantial.
Substantial can mean:
i. Conduct of extensive corporate operations,
management, and/or administrative activity within
a state.
3. Isolated and Sporadic Contacts that give rise to the claim
a. Specific Jurisdiction. Jurisdiction is proper if the
defendant purposefully availed himself to the forum
state and if the assertion of jurisdiction would be
reasonable.
i. Purposefully avails himself the privilege of
conducting activities within the forum state.
ii. Merely being able to foresee that one’s actions
will cause injury in the forum state is not enough.
iii. Intentional wrongful conduct that has effects
within a state is sufficient.
iv. Entering into a contract with a forum resident can
be sufficient.
v. Must be based on the actions of the defendant
and not unilateral actions of the plaintiff.
4. Isolated and Sporadic and not relating to the claim
a. No personal jurisdiction.
ii. Will assertion of personal jurisdiction comport with fair play and
substantial justice?
1. Generally, if the defendant has the requisite minimum
contacts with the forum state, it will not be unreasonable for
the case to be tried there.
2. Five Factor Analysis
a. The burden on the defendant
b. The Forum State’s interest in adjudicating the dispute
c. The plaintiff’s interest in obtaining convenient and
effective relief,
d. The interstate judicial system’s interest in obtaining the
most efficient resolution of controversies, and
 e. The shared interest of the several States in furthering
the substantive social policies
iii. Traditional Basis for Personal Jurisdiction
1. Transient Presence
a. Where a defendant is served with process in state, such
in state service suffices to establish personal
jurisdiction, without reference to whether such an
assertion would be reasonable.
b. However, if presence is procured by fraud, jurisdiction is
not obtained. There is a difference between fraud and
trickery.
2. Voluntary Appearance, Consent – if defendant doesn’t have a
special appearance, or argues on the merits, he consents to
personal jurisdiction unless in federal court.
iv. Contacts coming from the Stream of Commerce
1. O’Conner – mere placement into the stream of commerce is
not enough. Must intend to serve the forum state when
they participate in the stream of commerce.
2. Brennan – placing a product into the stream of commerce with
awareness that it will be marketed in forum state suffices to
establish minimum contacts with the state.
v. Personal Jurisdiction based on Internet Contacts
1. Zippo Manufacturing v. Zippo Dot Com
a. Classifies websites as either:
i. Passive (merely allows the owner to post
information on the internet) – no jurisdiction
ii. Active ( – jurisdiction is appropriate
iii. Interactive – depends on the degree of
interactivity and commercial nature of the
website. A highly interactive commercial website
will generally support personal jurisdiction.
vi. Consent to Jurisdiction
1. Forum Selection Clause in the Contract – generally
enforceable.
vii. Forum State residents - Jurisdiction may be exercised over an
individual who is domiciled within the forum state, even if he is
temporarily absent from the state.
1. A person can only have one domicile for this purpose
2. Domicile is more limited than residence
3. Domicile = current dwelling place + intent to remain
indefinitely.
viii. Personal Jurisdiction in Federal Court
1. Rule 4(K)A federal court has personal jurisdiction only if a
state court in the state in which it sits would have personal
jurisdiction.
 a. 100-Mile Bulge Rule – if the party was joined under rule
14 or 19 and served within a judicial district not more
than 100 miles from the place where the summons was
issued, jurisdiction can be established under rule 4(K)(1)
(B)
b. Interpleader – if the party is subject to federal
interpleader jurisdiction under 28 U.S.C. 1335,
jurisdiction can be established under rule 4(K)(1)(C).
c. Federal Statutory Provision –
d. Alien Provision – if the claim is against a person not
subject to personal jurisdiction in any state,
ix. In Rem Actions – Over a thing, which gives the court power to
adjudicate a claim made about a piece of property or about a
status. An action to quiet title to real estate, and an action to
pronounce a marriage dissolved are examples.
1. Such actions will generally meet the minimum contacts
standard. They are isolated but directly related contacts that
warrant jurisdiction.
x. Quasi In Rem Actions – action is begun by attaching property
owned, or a debt owed by the defendant within the forum state.
Differs from In Rem because the action is not about the thing being
seized. Any judgment only the property seized.
1. There must still be sufficient minimum contacts to confer
jurisdiction.
xi. In Personam Jurisdiction over Corporations
1. Any action may be brought against a domestic corporation
which is incorporated within the forum state.
2. The test for whether a corporation is a resident of a state for
In Personam purposes, is only if it is incorporated within the
state.
b. Statutory Limits on Personal Jurisdiction
i. Personal Jurisdiction in a State is proper only when:
1. 1) It falls within the terms of a state statute and
2. 2) Jurisdiction is constitutional.
ii. Long Arm Statutes – Specify the scope of that State’s personal
jurisdiction authority
1. Rhode Island Model – authorizes jurisdiction to the
constitutional limit. No further statutory analysis is required.
2. Enumerated Act Model – specifically articulates factual
circumstances where courts can exercise personal jurisdiction.
You must then next determine:
a. Statutory Analysis – Do the facts of the case fall within
one of the categories articulated in the long-arm
statute.
II. Notice and Opportunity To Be Heard
a. Notice – Due Process requires that one made a party to an action be
notified of its pendency before a court is permitted to adjudicate that
party’s rights.
i. The Constitutional Requirement
1. Notice must be reasonably calculated, under all
circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their
objections.
a. Adequate Information – must convey sufficient
information to notify the party of how and by when it
should respond
b. Must allow a reasonable time to appear
c. Method – a method that one desirous of actually
informing would use. Was the most reasonable means
used?
d. Service by Publication in general
i. Generally, not valid.
ii. Only permissible when a person cannot be found
after “reasonable diligence” is used to find
him/her.
iii. Cannot be sufficient unless the defendant’s name
and address are not known.
2. Does not have to be the method most likely to succeed is
required, nor does it require that notice is actually received.
3. Only the most reasonable means available and reasonably
practical.
4. The method of service employed is what is important, a
constitutionally deficient procedure cannot be overcome by
the fact that actual notice was received.
ii. Statutory Requirements – Service of Process must comply with both
the constitutional minimum and any additional statutory or rule
requirements.
1. Where a party has several residences that he permanently
maintains, service is valid when made at the dwelling house in
which the party is then living.
iii. Immunity, Evasion, and Sewer Service
1. Witnesses, litigants or lawyers who come into a state to
participate in one suit may be immune from process
concerning other suits.
2. Immunity is sometimes granted to persons who are induced
to enter the state through fraud or deceit.
3. Some state statutes prohibit service on Sunday.
4. Sewer Service – dishonest process servers who certify that
process was served when in fact it was not.
b. Opportunity to be Heard – parties have a right to be heard before a court
can make any determination of their rights.
 i. Three part standard for determining the validity of pre-deprivation
procedures. (Connecticut v. Doehr)
1. Courts are to consider the nature of the property interest at
stake, which requires courts to evaluate the significance of
the private interest that will be affected by the prejudgment
measure.
2. Courts are to examine the risk of erroneous deprivation
through the procedures under attack and the probable value
of additional safeguards. These risks can be mitigated by
procedures that require the plaintiff to make bond, or that
involve a judge in making the determination, but such
procedures need not be adversarial in nature.
3. Courts are to consider the interest of the party seeking the
prejudgment remedy and if relevant, any ancillary interest of
the government.
III. Subject Matter Jurisdiction – There is a
presumption against federal jurisdiction. A plaintiff must properly plead that
federal jurisdiction exists.
a. Diversity of Citizenship Jurisdiction (28 U.S.C. 1332)
i. In disputes where the amount in controversy exceeds $75,000,
federal courts have jurisdiction to hear
1. Suits between citizens of different states
2. Suits between citizens of a state and citizens of foreign states
(aliens)
3. Citizens of different states where aliens are also parties,
4. Foreign states as plaintiffs and citizens of a state.
ii. Complete Diversity Rule
1. No Plaintiff can be a citizen of the same state as any
defendant. Plaintiff can be from the same state, and
defendants can be from the same state.
iii. Determining Citizenship of Individuals
1. Domicile, not residence is what counts
2. Domicile = current residence + intent to remain indefinitely.
3. Domicile at the time the suit is filed is what counts.
4. Motive for moving domicile is irrelevant.
iv. Determining Citizenship of Entities
1. Corporations – citizenship is based on its place of
incorporation and the place where its principal place of
business is located.
a. Nerve Center Test – the location of decision-making
authority, typically its headquarters.
b. Muscle Test – the location of the bulk of the
corporation’s production or service activities.
2. Non-Incorporated Businesses
 a. Citizens of every state and country of which its partners
or members are citizens
b. Legal Representatives are deemed to be citizens only of
the state of the party whom they represent.
v. Representative Suits and Assignments of Claims
1. Tort claims are not assignable, but contract claims are.
2. 28 U.S.C. 1359 – the district court has no jurisdiction over
cases “in which any party, by assignment or otherwise, has
been improperly or collusively made or joined to invoke the
jurisdiction of such court.
3. An assignment for adequate consideration, does not run afoul
of 1359.
4. Courts look to the citizenship of the decedent, minor, or
incompetent, and not to the citizenship of the representative.
vi. The Domestic Relations and Probate Exceptions
1. Federal courts refuse to hear domestic relations cases.
2. The issuance of divorce, alimony, or child custody decree are
the types of domestic relations cases that it won’t hear.
3. It does not preclude jurisdiction over cases simply because
they involve conflict between family members.
vii. The Amount in Controversy Requirement
1. Must EXCEED $75,000
2. Aggregation allowed only in the following situations:
a. There are multiple claims by one plaintiff against one
defendant
b. There are multiple plaintiffs asserting an undivided
interest.
c. There are multiple defendants with joint and several
liability. Each defendant could be liable for the whole
thing.
3. Equitable relief
a. Traditional view – ask whether the defendant’s alleged
acts harm the plaintiff by more than $75,000.
b. Some courts look at whether complying with the
injunction would cost the defendant more than $75,000
c. Today most courts uphold jurisdiction if the amount is
met from either the plaintiff’s or the defendant’s
viewpoint.
b. Federal Question
i. Narrow Interpretation of the Jurisdictional Grant – “arising under”
the federal law must be set forth as a claim, not as a defense
1. The Well-Pleaded Complaint Rule
a. The essential federal element must appear on the face
of the plaintiff’s well-pleaded complaint.
 b. Alleging an anticipated constitutional defense in the
complaint does not give a federal court jurisdiction if
there is no diversity of citizenship.
c. The presence of a federal element must be genuine and
not artfully pleaded.
2. Well-Pleaded Complaint Problems Raised by Declaratory
Judgments
a. Declaratory judgment actions are proper under the Act
only if supported by an independent basis of
jurisdiction, such as diversity of citizenship or federal
question.
b. A declaratory action may be entertained in federal court
only if the coercive action that would have been
necessary, absent declaratory judgment procedure,
might have been so brought.
i. E.g. the patent holder who seeks a declaration
that its patent is valid and is being infringed
invokes federal jurisdiction because it could just
as easily have sought coercive relief in the form of
damages, or an injunction.
c. It doesn’t matter who would bring the coercive action,
so long as one could be brought by one of the parties.
3. Centrality of the Federal Issue to the Claim
a. The well-pleaded complaint must be sufficiently central
to the dispute.
b. The federal law only needs to be an ingredient in the
case.
c. In regards to a state cause of action that turns on the
“construction or application” of federal law.
i. Smith case – where it appears from the bill or
statement of the plaintiff that the right to relief
depends upon the construction or application of
the Constitution or laws of the United States, and
that such federal claim rests upon a reasonable
foundation, the District Court has jurisdiction.
ii. Moore case – brought a state cause of action that
raised a substantial federal question, but subject
matter jurisdiction was denied.
iii. Merrell Dow Case – A complaint alleging a
violation of a federal statute in a state cause of
action, when Congress has determined that there
should be no private, federal cause of action for
the violation, does not state a claim arising under
the Constitution or laws of the U.S.
c. Supplemental Jurisdiction (1367)
 i. Federal courts may hear state law claims as long as they are so
closely related to the underlying dispute as to constitute part of the
same “case or controversy” under Article III.
d. Removal Jurisdiction
i. A defendant in a state court action may have the case transferred
(removed) to the federal district court geographically embracing the
location of the state court, if the case could have been brought in
federal court originally.
ii. Can only be based on the plaintiff’s claim, not possible on the basis
of the defendant’s counterclaims or defenses.
iii. If the plaintiff’s claim qualifies for diversity, federal question, or
supplemental jurisdiction, they may be removed to federal court.
iv. Where a claim is being removed based on federal question
jurisdiction, separate and independent claims that would not qualify
for supplemental jurisdiction can be removed to federal court, but
not where removal was based on diversity.
v. All defendants must agree to removal
vi. Defendants must comply with the time limits prescribed in the
removal statute. 1446(b) – provides 30 days in which to remove.
Defendant will never have fewer than 30 days from the service of
process.
1. If a defendant is added after 30 days he cannot remove the
case because the original defendant didn’t remove it and all
defendants must agree.
vii. The plaintiff must file a motion to remand in order to get the case
back in state court.
viii. Removal is not permitted if the suit is filed in the defendant’s home
state.
IV. Venue – Determines where within a court system a case can be
brought. It is primarily a matter of convenience.
a. Local and Transitory Actions
i. Local Actions – involve land and historically include three major
categories of disputes:
1. In rem or quasi in rem cases, in which real property is the
basis of jurisdiction.
2. Cases in which the plaintiff seeks a remedy in or to realty,
such as a claim for quiet title, ejectment, foreclosure of a
mortgage, enforcement or removal of a lien; and
3. Claims for damages for injury to land, such as trespass.
ii. Most courts hold that in the above situations venue must be laid
where the land is located.
1. If a property is in two districts, venue is proper in the district
that has most of the property.
iii. Transitory Actions – any case that is not a local action is a transitory
action, and the vast majority of cases are transitory.
b. State Venue Provisions
i. Venue restrictions identify where within the state, in which county,
parish, or other subdivision cases are to be adjudicated.
c. Venue in Federal Court
i. Federal courts only have personal jurisdiction if the state in which
they sit would have personal jurisdiction, therefore state personal
jurisdiction doctrine limits the places in which a defendant can be
sued within a federal system.
ii. Congress has enacted venue statutes which specify where within
the federal system particular types of cases must be filed.
iii. General Venue statute governing federal civil practice is 28 U.S.C.
1391
1. Civil Action based only on diversity of citizenship may be
brought
a. A judicial district where any defendant resides, if all
defendants reside in the same state
b. A judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or
a substantial part of property that is the subject of the
action is situated, or
c. A judicial district in which any defendant is subject to
personal jurisdiction at the time the action is
commenced, only if there is no other district in which
the action could be brought.
2. Civil action not founded on diversity of citizenship may only
be brought in:
a. A judicial district where any defendant resides, if all
defendants reside in the same state
b. A judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or
a substantial part of property that is the subject of the
action is situated, or
c. A judicial district in which any defendant may be found,
if there is no district in which the action may otherwise
be brought.
3. The fallback provisions
a. You can only refer back to the fallback provision if
neither of the first two tests gives you venue.
b. If they do suggest a venue, then that is the end of the
matter, regardless of whether the tests give you the
venue that you want.
c. Where either test lays venue in districts besides the one
where the case has been filed, venue is improper in that
district and the case should be dismissed or transferred.
4. Residence of Corporate defendants
 a. Corporations reside in the district where they are
subject to personal jurisdiction, or, where multi-district
states are involved, to reside in the district “with which
its contacts would be sufficient to subject it to personal
jurisdiction if that district were a separate State. PJ and
SMJ look to domicile or where the permanent address is.
You can also have more than one domicile. If there is
no sufficient contact in any district you look to where
the most contacts are.
5. Residence of Individuals
a. Courts have generally held that “resides” as applies to
individuals is synonymous with domicile.
6. Venue is proper under the Fair Debt Collection Practices Act in
the district where an allegedly offending letter is received
because 1391 allows for venue in a judicial district in which a
substantial part of the events or omissions giving rise to the
claim occurred.
d. Change of Venue
i. Transfer of Civil Cases in State Courts
1. All states have provisions allowing the transfer of civil cases
from one county to another.
2. Most states permit a defendant to seek transfer if she is
unlikely to get a fair trial where the case is filled.
3. No state can unilaterally transfer a case from one of its courts
to a court in a different state. However, it has the option to
dismiss the case under the doctrine of “forum non
conveniens.”
ii. Transfer of Civil Actions in Federal Court
1. Federal law authorizes the transfer of civil actions from one
federal district court to another. These transfers are not
restricted by state lines.
a. Transferor court – court in which the case was originally
filed, and from which it is transferred.
b. Transferee court – The court in which the case is
transferred to.
2. 1404(a) Transfer – the transferor court is a proper venue
3. 1406(a) Transfer – the transferor court is an improper venue.
iii. Where Can Cases be Transferred?
1. 1404(a) – permits transfer to any district where the suit
“might have been brought.”
a. Where it might have been brought, cannot be
interpreted to mean where it can now be rebrought with
defendants consent.
2. 1406(a) – Cases can be transferred only to a district in which
venue and personal jurisdiction would be proper.
 a. Do not forget that when venue is improper it can okay
be transferred to places that have personal jurisdiction
and venue would be proper. IF venue is already proper
it can be transferred to a court
iv. Goldlawr Transfers
1. If a case if filed in a district in which venue and personal
jurisdiction is improper the court may still transfer the case.
2. Lower courts have applied this under 1404(a) as well as
1406(a).
v. Forum Selection Clauses – a forum selection clause specifying
where litigation concerning the contract is to occur is not entitled to
dispositive weight in deciding whether to transfer a case.
vi. Choice of Law
1. In state court, the forum applies it choice of law rules.
2. The federal court will apply which states laws in the state in
which it sits.
3. When a defendant seeks a 1404(a) transfer, that transfer is
simply a change of courtroom and should not change the law
that is applied.
4. Even where the plaintiff requests the 1404(a) transfer, the
transferee court will apply the law that the transferor court
would have applied.
vii. Standard for Transfer Under 1404 and 1406.
1. 1404(a) – in deciding whether to transfer the court will
consider:
a. Convenience of the parties
b. Convenience of the witnesses, and
c. The interest of justice
2. 1406 – If the case is filed in an improper venue, the court
“shall dismiss, or if it be in the interest of justice, transfer.”
viii. Multidistrict Litigation
1. 1407 – allows mass torts such as airplane crashes or toxic
torts, where there may be many cases pending in different
federal districts, all of which raise one or more common
question, to be transferred to one district and consolidated for
pretrial proceedings.
e. Forum Non Conveniens
i. Permits the dismissal of a case over which a court has jurisdiction
and venue on the ground that practical factors indicate that it
should be heard in another court and that court is outside of the
same judicial system.
ii. Differs from transfer of venue in that, a transfer is appropriate when
practical factors suggest another more convenient forum and that
forum is within the same judicial system.
iii. To obtain a dismissal for forum non conveniens, two requirements
must be satisfied:
 1. There must be an adequate alternative forum available for the
case.
a. The fact that the alternative forum’s law is less
advantageous to the plaintiff does not in itself bar
dismissal on forum non conveniens grounds.
2. There must be a showing that interests of convenience to the
parties and certain public interests argue in favor of the
alternative forum notwithstanding plaintiff’s choice of the
current forum.
V. Raising Jurisdictional and Related
Challenges
a. The Traditional and Modern Approaches to Challenging Personal
Jurisdiction.
i. Special Appearance (only use to object to jurisdiction in state court)
1. Allows the defendant to appear in a forum for the sole
purpose of contesting in personam jurisdiction.
2. If defendant does more than this, he is deemed to have made
a general appearance, which subjects him to the in personam
jurisdiction.
3. Raising an objection to personal jurisdiction along with a
notice to remove the case to federal court does not constitute
a general appearance
ii. Federal Rule 12
1. Answer and Complaint: Unless a U.S. statute supersedes, the
answer must be served:
a. If summons served: the answer must be served within
20 days of service
b. Collateral and Direct Attacks on Personal Jurisdiction (You can only raise
one or the other).
i. Direct Attack on personal jurisdiction – you make a special
appearance to contest the personal jurisdiction.
1. Disadvantages:
a. If the lawyer is not licensed to practice law in the forum
state, the client will have to find another attorney to
appear there on his behalf.
b. If you lose the direct attack, then in most jurisdictions,
appellate review is allowed only after the trial court has
entered a final judgment. A minority of jurisdictions
allow review by appeal before the trial starts.
ii. Collateral Attack on personal jurisdiction – ignore the process and
wait for a default judgment. Then when the plaintiff attempts to
enforce the default judgment in the home state, argue that the
forum state didn’t have personal jurisdiction.
1. Advantage is that the client is allowed to litigate at home.
 2. Disadvantages:
a. The plaintiff can try to enforce the judgment anywhere
the client has property, forcing the client to raise the
collateral attack in a distant forum.
b. Collateral attack allows client only to raise the issue of
whether personal jurisdiction was proper. Once there is
a default judgment, you cannot then argue on the
merits.
c. Challenging Federal Subject Matter Jurisdiction
i. Usually defendant will challenge subject matter jurisdiction by
moving to dismiss under Rule 12(b)(1).
ii. Rule 12(h), timing of defenses
iii. Subject Matter Jurisdiction cannot be waived. It can be raised by a
party after losing on the merits even.
iv. Plaintiffs have concealed the lack of jurisdiction until after losing on
the merits.
v. Defendants have concealed lack of jurisdiction until after the state
court statute of limitations has run. The federal case must then be
dismissed, perhaps leaving the plaintiff without remedy.
vi. A defendant who litigates the issue of subject matter jurisdiction
and loses, cannot then challenge it again in a separate action.
There are a few narrow exceptions
vii. If a party litigates on the merits of the case without raising the issue
of subject matter jurisdiction, that party cannot then assert the lack
of subject matter jurisdiction in a collateral suit.
viii. The Restatements of Judgments – permits a defendant to attack
collaterally a default judgment base upon lack of subject matter
jurisdiction, except where granting the relief would impair another
person’s substantial interest of reliance on the judgment.
ix. However, few modern decisions have sustained a collateral attack
on a default judgment where the sole issue is lack of subject matter
jurisdiction.
VI. Pleadings and Judgments Based on
Pleadings (Rule 8a)
a. Introduction and Integration – Pleadings are documents filed by litigants,
setting forth their claims and defenses.
i. Complaint – Is sent by the plaintiff to initiate the lawsuit.
ii. Answer – A document in which the defendant responds to the
allegations in the complaint and may raise new matter called
affirmative defenses.
iii. Reply – in some jurisdictions the plaintiff may then respond to any
new matter brought up in the defendant’s answer.
iv. The earliest system expected pleadings to do four things:
 1. Put parties on notice of claims and defenses of their
opponents.
2. State facts each party believes it can prove.
3. Narrow the number and scope of issues needing trial; and
4. Provide a quick method for resolving meritless claims and
defenses.
v. Modern systems tend to limit the function of pleadings to giving
notice.
b. Historical Overview of the Evolution of Pleadings
i. The Federal Court and most American States adopt the Federal
Rules.
1. Pleadings are designed to give notice and provide a
mechanism for ready testing of the legal sufficiency of a claim
2. Instead of pleading facts, the plaintiff makes a short
statement of his claim, showing that he is entitled to relief.
ii. A minority of states including CA, and NY adhere to the code
pleading rules.
1. Code pleading emphasizes pleading facts. The code
complaint should contain a statement of the facts constituting
the cause of action, in ordinary and concise language, without
repetition, and in such a manner as to enable a person of
common understanding to know what is intended.
c. The Complaint – Rule 8(a)
i. Requirements
1. Elements of a Complaint – Three requirements
a. A “short and Plain statement of the grounds upon which
the court’s jurisdiction depends.”
b. A “short and plain statement of the claim showing that
the pleader is entitled to relief”
c. A “demand for judgment for the relief the pleader
seeks” which is known as a prayer.
i. Ad damnum – where the prayer is asking for
monetary recovery.
ii. Does not limit the plaintiff’s recovery, unless there
is a default judgment.
2. Form of Pleadings
a. Under rule 10(a), the caption of any pleading must state
the name of the court, title of the case (by parties
names) and the identity of the document itself.
b. The body of the pleading sets forth claims or defenses
in numbered paragraphs
c. Rule 10(c) allows parties to adopt by reference
allegations found elsewhere in the document.
d. Rule 10(c) also allows parties to attach a copy of a
written instrument to their pleadings.
3. Legal Sufficiency
 a. On the face of the complaint, the allegations must
support a judgment for the plaintiff or it will be
dismissed at the outset.
b. Under code pleading, the defendant would test the legal
sufficiency of a complaint by filing a demurrer.
c. In federal court 12(b)(6) is the motion to dismiss for
failure to state a claim.
4. If the complaint does not state a claim the state grants the
demurrer or the rule 12(b)(6). It can be done in two ways:
a. Leave to amend (without prejudice) – the plaintiff has
another opportunity to draft a legally sufficient
complaint.
b. Without leave to amend (with prejudice) – plaintiff may
now appeal and attempt to convince the appellate
court.
5. The Defendant can attack the entire complaint through a
general demurrer or a 12(b)(6) motion or he/she can address
one of several claims made by the plaintiff.
6. Factual (or formal) sufficiency: The Debate Over Specificity.
a. Code Pleading
i. Plaintiffs must state “ultimate facts” constituting
her claim.
ii. Facts that are too specific could be pleading the
evidence.
iii. Facts that are alleged too generally could be
guilty of pleading conclusions of law.
iv. Defendants are permitted to seek amplification of
the plaintiff’s pleading through a motion for more
definite statement.
v. Defendants may also move to strike redundant or
scandalous matter from a pleading.
b. Federal Rules of Pleading
i. The Federal Rules of Civil Procedure only require
that a complaint contain a short and plain
statement of the claim showing a right to relief.
ii. The Federal Rules rely on discovery procedures
and other pretrial devices to develop the facts.
iii. Complaints dealing with fraud and mistake must
be pled with particularity.
c. The Common Counts – Allow a one-sentence allegation
for money had and received, quantam meruit, quantam
valebant, and for indebitaus assumpsit. Code states
and the Federal Rules allow them.
7. Heightened Specificity Requirements in Certain Cases
 a. Rule 9 states exceptions to the liberal pleading
provisions in rule 8(a)(2). These exceptions must be
stated with greater specificity:
i. Capacity
ii. Fraud, Mistake, Condition of Mind
1. Accusations of fraud must be specific.
2. Accusations of malice, intent, knowledge,
and conditions of mind may be alleged
generally.
iii. Conditions precedent
iv. Special Damages – damages that are not the
natural or inevitable result of injuries that are
included in the complaint.
b. Courts have imposed higher pleading requirements in
certain situations not mentioned in the Federal Rules as
warranting treatment. The Supreme Court has had to
intervene on several occasions to overturn such
practices, indicating that it is inappropriate for lower
courts to impose these higher pleading requirements.
8. Pleading Inconsistent Facts and Alternative Theories (Rule
8(e)(2)).
a. A plaintiff may plead inconsistent counts in the
affirmative where she is genuinely in doubt as to what
the facts are and what the evidence will show.
b. Where a key witness is deceased, pleading alternative
sets of facts is often the only feasible way to proceed.
ii. Voluntary Dismissal – Rule 41(a) 1 free one if:
1. An action can be dismissed by the plaintiff without a court
order if:
a. He files the notice of dismissal at any time before
service of an answer or motion for summary judgment is
made (whichever is sooner). Or
b. Filing a stipulation of dismissal signed by all parties who
have appeared in the action.
2. Dismissal Will be Without Prejudice Unless:
a. Otherwise stated in the notice
b. The notice of dismissal operates as an adjudication
upon the merits
c. The case is filed by a plaintiff who has already
dismissed the action for the same claim in another court
3. Action Dismissed by the Court
a. Unless dismissed under 41(a)(1), an action shall only be
dismissed upon a court order.
b. If a counterclaim has been pleaded by the defendant
prior to service of the Plaintiff’s notice of dismissal then:
 i. The case cannot be dismissed if the counterclaim
cannot remain as an independent action.
ii. The plaintiff’s claim can be dismissed if the
counterclaim can remain as an independent
action.
iii. Dismissal of 41(a)(2) is without prejudice.
iii. Involuntary Dismissal (Rule 41(b)) – the defendant or the district
court may order involuntary dismissal.
1. Defendant may move for a dismissal of any claim if plaintiff:
a. Fails to prosecute
b. Fails to comply with the Federal Rules of Civil Procedure
c. Fails to comply with any court order.
2. Dismissal under 41(b) is with prejudice, unless the court:
a. States otherwise
b. Dismissed the case for lack of jurisdiction
c. Dismissed the case for improper venue
d. Dismissed the case for failure to join a party.
d. Defendant’s Options in Response – Two choices: 1. Bring a motion, or 2.
answer.
i. Motions - A request the court order something.
1. 12(b)(6) motion to dismiss for failure to state a claim on which
relief can be granted. Serves two functions:
a. It tests the legal sufficiency of the plaintiff’s claim,
questioning whether the law accords a remedy on the
facts alleged.
b. It tests the factual, or formal, sufficiency of the
complaint, questioning whether the plaintiff has set
forth his/her claim in appropriate detail
2. Motion for Summary Judgment (Rule 56) – If the facts are
undisputed, and the defendant is entitled to judgment as a
matter of law.
3. Motion for a more definite statement (12e) –
4. Motion to strike (12f) – if something in the complaint is
scandalous.
ii. The Answer – a pleading that responds to allegations of the
complaint and may add new matter as well.
1. Responses to the Plaintiff’s Allegations – there are three
possible responses to the various allegations of the plaintiff’s
complaint:
a. Admissions – pleadings establish undisputed facts on
which there need be no trial.
b. Denials
i. General denials – defendant denies everything.
Only allowed if defendant can in good faith deny
all allegations of the complaint. Very Rare.
 ii. Specific Denials – Responding to each paragraph
of the complaint individually is common practice.
iii. Rule 8(b) requires that the defendant only admit
or deny and not plead contrary facts. In a code
state it could count as an admission.
c. Denials for Lack of Knowledge or Information
i. A party may state that it is without knowledge or
information sufficient to form a basis as to the
truth of an averment. This will have the effect of
a denial.
ii. This defense cannot be used if the defendant has
reasonable access to the information or if it is a
matter of public record or general knowledge.
iii. When the defendant denies an allegation, the
allegation is said to be “joined.” This simply
means that the issue is contested and an issue
which an evidentiary determination is required.
d. If you do not admit or deny something in the allegation,
it is treated as if you admitted to it.
2. Affirmative Defenses (Rule 8c)
a. Requires the defendant to raise affirmative defenses
b. Defendant must be specific about affirmative defenses.
c. It is bringing in a new fact.
iii. Claims by the Defendant
1. A defending party can also assert claims against other parties
and in some circumstances, force the joinder of additional
parties. Principal claims by defendant:
a. Counterclaim – against the opposing party.
i. The plaintiff must then file a reply.
b. Cross-claim – against a co-party.
iv. Failure to Respond: Default and Default Judgment
1. If a party fails to respond in an appropriate and timely way,
they may find themselves in default.
a. Different from default judgment.
b. Simply a ministerial notation on the court’s docket sheet
that the defendant has failed to plead or otherwise
respond in time.
c. The plaintiff cannot obtain money or other relief on the
basis of a default. The plaintiff must get a default
judgment.
2. Rule 6(b) Enlargement
a. A court may use its discretion to extend time periods
i. With or without a motion – if a request is made
before the expiration of the original time period.
 ii. Upon motion – after expiration of original time
period, if the failure to act was caused by
excusable neglect.
3. Rule 54(c) Demand for Judgment
a. Judgments by default: a default judgment cannot
exceed (or differ from) what was requested in the
pleadings.
b. Judgment without default: Judgments not reached by
default may be different from or exceed that which was
demanded in the pleadings.
4. Rule 55 Default
a. Entry: The clerk shall enter default judgment when:
i. A party has failed to plead, and
ii. Affirmative relief is sought against the defaulting
party, and
iii. The fact that a party defaulted is proven by an
affidavit or otherwise.
5. Rule 60 – Set aside a default judgment
a. More then good cause shown, must be more than
excusable neglect.
b. Must be done within a reasonable time, not more than
one year.
e. Amended Pleadings
i. Basic Principles Under Rule 15(a)
1. Parties have a right to 1 amendment:
a. Before the answer or responding pleading is served.
b. In a non-responsive pleading, 20 days after the pleading
is served.
2. Otherwise, the amending party must:
a. Request a “leave of court” to amend the pleading, or
b. Obtain written consent from the adverse parties.
3. Answering Amendments – must be done within the longer of:
a. 10 days after service of the amendment, or
b. The time remaining within the original 20 day response
period.
ii. The Problem of Variance Under Rule 15(b)
1. The presentation of evidence on a point not covered in a
pleading is called variance.
2. It allows amendment to conform to the evidence presented at
trial.
iii. Amendment and the Statute of Limitations Under Rule 15(c)
1. Based on what a plaintiff learned from the defendant’s
answer, a plaintiff may wish to join another claim or party.
a. Amendments must relate back to the date when the
complaint was filed.
 b. Same conduct transaction or occurrence is considered
to relate back to the original complaint filed.
c. You can add a party if: the party knew about the
lawsuit, and knew or should have known that but for a
mistake they would have been sued originally.
f. Supplemental Pleadings (didn’t spend much time in class about this)
i. Sets forth events occurring after a pleading is filed. This does not
include facts that occurred before the original filing, but which were
discovered after filing.
ii. Allowed only with the courts permission
iii. However, courts freely grant leave to supplement, unless there is
undue delay, prejudice, or bad faith.
g. Veracity in Pleading: Rule 11 and Other Devices
i. Rule 11
1. Basically you must allege things in good faith
2. A certification is the signature, it is not under oath, it is a
certificate to the court.
ii. Rule 11(c) Sanctions
1. Initiated by the other party
a. The party will have a 21 day safe harbor in which he can
correct it or leave it alone.
2. On Court’s Initiative
a. The burden of proof will fall on the pleader to show that
it is not in violation.
b. In addition the party will not have the 21 day safe
harbor to change.
VII. Scope of Litigation – Joinder and
Supplemental Jurisdiction
a. Introduction and Integration
i. This chapter deals with what parties can be joined and what claims
can they assert in a civil action.
ii. At common law joinder rules were restrictive, resulting in multiple
suits for what could easily be seen as a single overall dispute
iii. In order to avoid duplicative litigation, avoid unnecessary expenses
for the litigants, reduce backlog in court systems, and avoid
inconsistent results, the modern joinder practice in the Federal
Rules permits the joinder of parties and claims along transactional
lines.
iv. Joinder rules merely provide procedural mechanisms by which to
assert a variety of claims. They do not and cannot alter the
requirements of personal jurisdiction, subject matter jurisdiction,
and venue.
v. Every claim joined in federal court must have a basis of federal
subject matter jurisdiction.
b. Real Party in Interest, Capacity, and Standing
i. Rule 17(a)
1. Every action must be prosecuted in the name of the real party
in interest.
2. The real party in interest will not necessarily be the person
who receives the benefit of a favorable judgment.
3. 1332 – you disregard the citizenship of the representative,
only look at the citizenship of the RPI.
ii. Subrogation is an assignment by operation of law and arises
commonly in insurance cases. The insurer would be the Real Party
in Interest.
1. Minority (Direct Action State) – Company can sue under its
own name.
2. Majority (Other States) – Company must sue under the name
of the insured.
c. Claim Joinder by Plaintiffs
i. Procedural Aspects Rule 18(a)
1. Allows a claimant to assert as many independent or alternate
claims as he has against an opposing party. These include:
a. Original Claims
b. Counterclaims
c. Cross-claims
d. Third party claims.
2. Applies even if the claims are not transactionally related. It
declares open season on the defendant.
3. 18(a) is permissive, it does not require the plaintiff to assert
all claims that he has against the defendant.
a. However, the plaintiff must also consider the preclusion
rules. Closely related claims might have to be raised
concurrently at the risk of being barred under the
doctrine of claim preclusion in any future actions.
4. The decision of the court to join additional unrelated claims is
discretionary. Rule 42(b) – A court may split any claims for
any of the following reasons:
a. To avoid prejudice
b. To further convenience
c. To increase economic efficiency
5. The rule is procedural only and cannot affect subject matter
jurisdiction
ii. Jurisdictional Aspects
1. What happens when a party has federal jurisdiction over one
claim, and then uses Rule 18(a) to join a claim over which
there is no federal question or diversity of citizenship
jurisdiction?
2. 1367(a) – Allows the Federal Court to have supplemental
jurisdiction over all claims that are so related to the claims of
 action within original jurisdiction that they form part of the
same case or controversy. (Gibbs Test, “Common Nucleus of
Operative Facts”)
a. The court can hear State and federal claims that state
separate causes of action as long as they are factually
closely related.
b. The court is not required to exercise this right. Factors
for the court in determining:
i. Judicial economy
ii. Convenience
iii. Fairness to the litigants
c. If the issues are so complicated that they are confusing
to the jury then the court probably should dismiss the
state claims.
d. The issue of whether pendant jurisdiction was proper
should remain open throughout the litigation.
e. If before the trial the federal claim is dismissed, then
the state claim should also be dismissed. =
d. Permissive Party Joinder by Plaintiffs
i. Procedural Aspects Rule 20 (permits joinder of multiple plaintiffs
and defendants)
1. All persons may join as plaintiffs or defendants if they assert
or are subject to any right to relief which both:
a. Arises out of the same transaction or occurrence, and
i. Or series of transactions and occurrences.
ii. Plaintiffs may join unrelated defendants when a
single injury arises out of a series of events or
transactions.
b. Has a question of law or fact common to all co-parties in
the action
2. Jurisdictional Aspects
a. What if the plaintiff has a claim against one defendant
which invokes federal question jurisdiction and a claim
against a second defendant that does not have an
independent basis of jurisdiction?
b. 1367(b) – Supplemental Jurisdiction is not proper when
it involves the joinder of parties.
e. Claim Joinder by Defendants
i. Counterclaims
1. Compulsory Counter Claims Rule 13(a)
a. Procedural Aspects
i. A compulsory counter claim (any related claim
arising out of the original action), must be joined
in the pleading. Exceptions: the claim is already
subject to another pending action, and the
 defendant brings suit by attachment or process
without the court’s jurisdiction.
ii. When a party is defaulted for failure to file a
pleading, the default applies to all matters the
party should have pleaded.
b. Jurisdictional Aspects
i. P purports to assert a federal question claim
against D, but it does not actually come under
federal law. Before the case is dismissed, D files a
counterclaim that has independent federal
jurisdiction. Federal Jurisdiction?
1. No. You look to the well-pleaded complaint
rule, which only looks at the plaintiff’s
complaint.
ii. If the plaintiff’s complaint does have federal
jurisdiction, but the defendant’s compulsory
counterclaim does not, it must invoke
supplemental jurisdiction.
iii. A compulsory counterclaim will always satisfy
supplemental jurisdiction.
2. Permissive Counterclaims – Rule 13(b)
a. Allows for the defendant to assert any claim they have
against an opposing party. Doesn’t necessarily arise
from the same transaction or occurrence.
b. Jurisdictional Aspects
i. If it does not invoke an independent basis of
federal subject matter jurisdiction, it can only be
heard through supplemental jurisdiction.
ii. Under 1367(a) Supplemental Jurisdiction only
applies to claims that arise from a common
nucleus of operative facts. By definition,
permissive claims do not arise from the same
transaction or occurrence.
iii. It is possible for a counterclaim to be permissive
and satisfy the 1367(a) test. 1367(a) only
requires a loose factual connection.
ii. Cross-Claims – Rule 13(g) (Usually are considered permissive).
1. Cross-claims are permissive and are limited to claims arising
out of the same transaction or occurrence of either:
a. The original action, or
b. A counterclaim, or
c. Relating to any property subject to the original action.
2. Indemnity: Cross-claims may include a claim to a co-party to
indemnify the claimant for all or part of the liability arising out
of the action.
 3. Once you have 13(g) rule 18(a) allows you to add anything
else.
4. Jurisdiction:
a. The cross-claim must arise from the same action or
occurrence, so there will almost always be supplemental
jurisdiction. Always start with an independent form of
jurisdiction when assessing the jurisdiction of a claim.
f. Overriding Plaintiff’s Party Structure
i. Rule 13(h) – allows the defendant to join additional parties to their
cross-claims and counterclaims, so long as the joinder meets Rule
20 or Rule 19. (this is if they are necessary or they are permissive)
1. Defending parties joined must be subject to personal
jurisdiction and there must be subject matter jurisdiction over
the claim against the added parties.
2. Supplemental jurisdiction is readily available for all
transactionally related claims under 1367(a).
3. 1367(b) does not thwart supplemental jurisdiction because:
a. 1367(b) purports to preclude supplemental jurisdiction
only over claims by plaintiffs. So long as the defendant
is asserting the counterclaim, 1367(b) should not thwart
it.
b. 1367(b) does not list 13(h) in its list of claims over
which supplemental jurisdiction is precluded.
ii. 1367(b) – plaintiff cannot file certain claims under supplemental
jurisdiction when the original basis for subject matter jurisdiction is
diversity.
1. No supplemental jurisdiction over claims by P against parties
under:
a. Rule 14 – Claims by P against third party
b. Rule 19 – Indispensable parties – if new party destroys
diversity.
c. Rule 20 – Permissive Joinder
d. Rule 24 – Intervention, third party seeking to intervene
as P
iii. Impleader (Third Party Practice) Rule 14
1. A defending party can assert a claim against a non-party (the
third party) claiming that the third party is liable to the
defending party for all or part of the claim being asserted
against that defending party.
a. Indemnity – pass total relief on to another
b. Contribution – partial relief
2. A sues B and B feels that C should be liable to B if B is liable
to A. B can bring a rule 14 claim against C. C will now be
called a third party defendant.
 3. Claims against third parties can only be for reimbursement for
all or part of any amount a defending party would owe to its
opponent if the opponent prevails.
4. Once a third party is properly asserted, the third party may
join additional claims against the third party defendant under
rule 18(a). These are permissive only.
5. The court must have personal jurisdiction and subject matter
jurisdiction over the third party.
6. A claim against a third party will generally qualify for
supplemental jurisdiction. However, state law claims by
plaintiffs in diversity actions against non-diverse third-party
defendants will not qualify for supplemental jurisdiction.
7. Defendant may assert claims against third parties without the
permission of the court if done within 10 days of service of its
answer or anytime thereafter with leave of the court.
iv. Jurisdictional Aspects of Impleader
1. In an action that is based solely on diversity, the plaintiff may
not assert a claim against a third party defendant when there
is no independent basis for federal jurisdiction.
v. Compulsory Joinder (Necessary and Indispensable Parties)
1. Rule 19(a) – Persons to be joined if feasible - Person who is
subject to personal jurisdiction, and will not destroy subject
matter jurisdiction will be joined if:
a. Relief cannot be accorded without them
b. Person claims an interest related to action and will not
be able to protect the interest if not in litigation, or
could subject party in multiple litigation.
2. A party is indispensable under Rule 19 if judgment in his
absence would be prejudicial and inadequate.
3. Joint Tortfeasors are not necessary parties under Rule 19.
4. Rule 19(b) – If 19(a) is not feasible, the court should
determine in good conscience if it should proceed or if the
party should be added and action dismissed. 4 factors to
consider:
vi. Jurisdictional Aspects of Compulsory Joinder
1. Three Step Analysis
a. Is the party needed for adjudication?
b. Is Joinder feasible under 19(a)
c. Apply four factors – decide if should proceed or
dismiss action
i. How judgment in the absence will affect the
present parties.
ii. The extent that prejudices may be avoided or
reduced by other means.
iii. Will judgment in absence be adequate?
 iv. Will P have adequate remedy if the case is
dismissed?
vii. Intervention
1. Intervention as a right, 24(a) – protects the same interest as
rule 19(a), but it is brought by the absentee and not the
defendant.
a. Intervention will not be allowed if the parties rights are
adequately protected by an active party.
2. Permissive Intervention, 24(b) – allowed by statute and if the
applicants claim is related to the main action by question of
law or fact
a. The court must use its discretion in making the decision
to allow it.
3. Jurisdictional Aspects
a. First look for an independent basis
b. 24(a) will provide supplemental jurisdiction because it
involves the same transaction or occurrence.
c. 24(b) – much more difficult to find supplemental
jurisdiction, but it can be done the same as in 13(h).
Most of the time you will need an independent basis for
jurisdiction.
VIII. Special Multiparty Litigation:
Interpleader and the Class Action.
a. Interpleader
i. Procedure brought by a stakeholder who has possession to a thing
and there are several claimants to it.
1. True Interpleader – the stakeholder is “disinterested” and has
no claim to the thing.
2. “In the Nature of Interpleader” – the stakeholder does have a
claim to the disputed property
ii. Rather than engage in successive litigation with each potential
claimant, interpleader allows the stakeholder to force all claimant
into a single proceeding.
iii. The Two Types of Interpleader in Federal Court
1. Rule Interpleader (Rule 22)
a. There needs to be complete diversity
b. Amount in controversy must be $75,000 +
c. Paid into the court
d. Venue – Section 1391 (could be where property is)
e. Sufficient minimum contacts apply
2. Statutory Interpleader (Section 1335)
a. Minimal diversity – only need diversity between at least
2 claimants.
b. Amount in controversy is $500 or more
 c. Might pay into court, but can also post a bond.
d. Specific venue statute (section 1397) broader (where
claimant is).
b. Limits of Interpleader to Avoid Duplicative Litigation
i. Insurance companies do not have to wait until claimants against
their insured have reduced those claims to judgment before
invoking interpleader.
1. Otherwise, there would be a race for claimants to obtain
judgment, and the first one might be able to secure a
disproportionate share of the fund.
2. Interpleader was not designed to grab lawsuits from other
jurisdictions and force them together.
3. Interpleader cannot be used to solve all of the problems of
multiparty litigation.
IX. Class Action
a. Background
i. One or more class representatives are formally joined as parties in
the case. The members of the group they represent are not joined,
but are bound by the outcome of the litigation.
b. Policy and Ethical Issues
i. It is efficient in that it allows recovery of a large number of claims in
one action.
ii. Critics say it is a potentially huge burden on the court and
potentially results in litigation that would not otherwise occurred.
iii. The class member is usually motivated by principle because he/she
does not stand to recover much money.
iv. However, the lawyer may be motivated by economics and not
principle and may cause him to settle prematurely because of the
economic incentive.
v. Because of the potential abuses, class action litigation has placed
increase burdens on the courts, forcing them to protect parties.
c. Constitutional Considerations
i. A class action Judgment does not bind parties that were not parties
to the case and whose interests were not represented.
d. Practice Under Federal Rule 23
e. Filing and Certification of a Class Action – Two steps: 1. The class must
satisfy each of the prerequisites in Rule 23(a), 2. The representative must
demonstrate that her class falls within one of the three types of class
actions recognized by Rule 23(b).
i. Requirements for class under 23(a)
1. Definition of class will be tested, pulled, and pushed, and the
court may say broad or narrow, based on geographic area,
parties represented, fact patterns existing.
2. Numerosity – no specific number, rule of thumb is 25.
 3. Commonality – Questions of law and fact are common to the
case.
4. Typicality – the claims or defenses of representatives are
typical of those of the class. Not identical, but typical.
5. Representative parties will fairly and adequately protect the
interests of the class.
ii. Types of Class Actions Under Rule 23(b)
1. 23(b)(1) Prejudiced Class – Two kinds
a. 23(b)(1)(A) – permits class litigation where separate
actions would create a risk of establishing incompatible
standards of conduct for the party opposing the class.
b. 23(b)(1)(B) – Limited fund class actions. Some
claimants will recover and others will win their judgment
later and have no fund against to recover.
i. First show it’s limited fund
ii. Next, show that the distribution is equitable
iii. Finally, there must be a constructive bankruptcy
situation. If all claims are paid the business tanks.
2. 23(b)(2) Injunctive Class
a. A situation where action must be taken to prevent
further damage to property or person.
3. 23(b)(3) Damage Class
a. Common question of law or fact dominates
b. Class interests must dominate individual interests. The
claims must be similar.
i. Ex - $20 per airline ticket. Not: some people killed
some merely injured. If they are dissimilar they
should be filed individually.
c. Superiority, class action device must be a superior
method than the individual claims.
d. 4 Factors in finding Superiority
i. Similar not Varying Damages – parties interests in
individual actions. Varying damage awards based
on different injuries
ii. Existing litigation – the extent and nature of any
existing litigation (already pending class action, or
in individual class). Then certification makes less
sense.
iii. Concentration – the desirability of concentrating
all of the claims in one jurisdiction.
iv. Over-Concentration – Difficulties in managing the
class action: Similar to numerosity. Too many
people, and it would be better to do hundreds of
individual claims.
4. There may be a combination of any of these class actions.
The Type of class will also affect the notice that is sent.
iii. Notice to Class Members of the Pendency of the Action
1. 23(c)(1) For Damage Class – Use Mullane type of notice. Best
practicable manner under the circumstances. Individual
notice where available.
2. 23(c)(2) – For any class certified under (b)(1) or (b)(2)
(prejudice and injunctive) may have “appropriate notice.”
Might be ads in a national magazine or newspaper,
online publishing, generalized or international
publications.
3. Components
a. Nature of action
b. Definition of class certified
c. Class claims, issues, or defense
d. Entry of appearance by a class member through counsel
e. Exclusion from class members who request it.
f. Binding effect of a judgment on all class members.
iv. Council
1. 23(g)(1)(b) – attorney must fairly and adequately represent
the interests of the class
2. 23(g)(1)(c)(i) The Court must consider
a. The work counsel has done in identifying and
investigating potential claims
b. Counsel’s experience in handling class actions, other
complex litigation, and claims of the type asserted
c. Counsel’s knowledge of the applicable law
d. Resources council will commit to representing the class.
v. The Court’s Role in Dismissal and Settlement
1. 23(e) the court must notice in reasonable manner to all
members bound by the proposed settlement/dismissal.
2. 23(e)(1)(c) – A hearing is required to find that the settlement,
voluntary dismissal or compromise is fair, reasonable, and
adequate
3. 23(e)(2) – Parties must notify court of any side agreements,
settlements, voluntary dismissal or compromise of the claims,
issues, or defenses of class.
4. 23(e)(3) – The court gives parties in a Damage Class a 2nd
chance to opt out in cases particularly where the settlement
amount is low.
5. 23(f) – permits courts of appeal to grant an appeal of a court’s
decision on certification.
a. At court’s discretion
b. If moved within 10 days after entry of the order.
6. Attorney Fees 23(h)
a. Reasonable fees not limited to an hourly rate though
not even an hourly rate is guaranteed.
 b. Objectionable by adverse party, certainly if they feel the
settlement is inequitable in a manner overly prejudicial
to them.
c. 17 U.S.C. 1712(a) – attorney’s fees based on coupons
can be redeemed.
i. Incorporates injunctive relief, requires court
approval
ii. Expert testimony on “actual value to the class
members
iii. Court may order a portion to be available to
501(c)(3) organizations
f. Subject Matter Jurisdiction
i. If common question of law is a federal question, there is no issue.
ii. If diversity is at issue
1. Only consider the citizenship of the named representatives.
The must be of different states than the defendants. It
creates the need for plaintiff’s counsel to name
representatives who are diverse.
2. For amount in controversy, section 1367 applies
a. Absent class members were allowed to individually
possess claims under minimum amount because the
common nucleus of law fact incorporates the claims.
3. 1332(d) on minimum diversity and aggregation
a. It allows the aggregation of all members of the class. If
it exceeds $5 million there is federal amount in
controversy for purposes of federal subject matter
jurisdiction.
4. 1453(b) – any defendant may remove without consent of the
other defendants and it doesn’t matter if that citizen is a
member of the state in which the class action is filed.
g. Personal Jurisdiction
i. The forum must have personal jurisdiction over the defendant, but
not over all of the individual plaintiffs.
1. The named class representative waived personal jurisdiction
by filing (including absent class members).
ii. The class action form protects the plaintiffs interests, so personal
jurisdiction is not required.
iii. If a defendant is a class member there must be personal jurisdiction
over all members.
h. Shareholder Derivative Action 23.1
i. Additional requirements
1. Must be verified (meaning sworn under oath)
2. Must contain in the complaint efforts made by P to the action
the P desires from the directors or corporate authority AND
the reasons for P’s failure to obtain the action.
i. Removal
i. Class action in state court, one or more defendants want to remove
it. Barrier to removing from state court to federal court? None.
Only diversity of class representatives is looked to.
1. Can do it if there is jurisdiction in federal court. 2 ways
a. 1332(a) – normal diversity. Look to complete diversity
between named class reps and all Ds and the amount in
controversy of class reps. Use supplemental jurisdiction
over unnamed class members. Because of 1453, you
may ignore the citizenship of Ds.
b. 1367 Amount in controversy of named class reps.
c. 1332(d) class action jurisdictional statute. Looks to
diversity between any member of the class action and
any D. Aggregates for amount in controversy if greater
$5,000,000
d. How do you remove? 1453. No requirement of consent
of all Ds. Ignores citizenship of D who is removing.