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CIVIL PROCEDURE

I. Personal Jurisdiction
A. Introduction
In order to try a case, the court must have the adjudicatory power consisting of:
1. Personal jurisdiction over the ;
2. Subject matter jurisdiction over the case; and
3. Appropriateness as a venue.
(Adequate notice must be served on .)

Personal (aka territorial) jurisdiction: a reflection of the geographic limitations on the judicial power of the sovereign
states within our federal system.
Subject matter jurisdiction: allocates power between federal and state court systems.
Federal courts have limited SMJ
Constitutional and statutory provisions restrict their adjudicatory authority to certain types of cases, mainly
disputes between citizens of different states (diversity) and disputes arising under federal law (federal Q cases),
such as patent, antitrust, and civil rights cases.
State courts have general SMJ
They can hear and decide most categories of cases, including those that can be heard in federal court over which
there is a concurrent jurisdiction

In personam jurisdiction: the power of a court to enter a money judgment against the ; a judgment may, if necessary, be
satisfied by seizing and liquidating the defendants assetsCourt has property over the herself
In personam judgment is said to follow the , meaning that it must be given full faith and credit and be enforced by any
state in which the or his assets are found.
In rem jurisdiction: the power of a court to act with regard to property (such as real estate) within its borders Court has
power over the s property:
Affects the interest of persons in the property (and may indeed extinguish those interests) but, unlike in personam
judgment, does not create an obligation on the s part to pay money to the .
An action to determine title to property among opposing claimants is an example of in rem jur.
Quasi in rem jurisdiction: hybrid of the other two forms of adjudicatory power.
Based on the presence of the s property (either real or personal) within the forum state, but it permits the court to enter
a judgment for an amount of money not exceeding the value of the property, and which may be satisfied from the forced
sale of the property.
Unlike the true in rem action, the claim for relief in a quasi in rem action is unrelated to the property, which merely
provides the basis for jurisdiction.

General Jurisdiction (all-purpose): can be sued in a forum for a crime that arose anywhere in the world.
Test 1: Is the s contact continuous and systematic?
Test 2: Is the a citizen of that forum state?
Test 3: Has the been served with a process?
Test 4: Does the corporation have the principal place of business in that state? Or, is that where they are incorporated?
Specific Jurisdiction (conduct-linked): Defendant can only be sued for a claim that occurred in that forum.
Although each state retains its own sovereignty, a valid judgment entered in state A is entitled under our Constitution (Art.
4 1) to full faith and credit in all other states.

B. Personal Jurisdiction Can the sue the ?

First, is there a Statutory Basis for personal jurisdiction?


Every state has a general jurisdiction statute over s domiciled in the forum.
Constitutional power is not self-executing court must be authorized by appropriate legislation or otherwise to assert
jurisdiction; DP clause only defines outer bounds of permissible jurisdictional power (does not confer jurisdiction).
It is up to the state legislature to actually grant to power to its courts to exercise personal jurisdiction, through statutes.
Long-Arm Statute applies to non-residents. There are two types:
California style: Reaches to the full extent of DP (2 inquiries collapsed into one -
Illinois style (laundry list): Non-resident can be sued on a claim arising from her actions.
Does the s claim arise from activity of the that fits within an enumerated category?
If so, would application of the statute nonetheless reach beyond the constitutional constraints of the minimum
contacts test?
Second, is personal jurisdiction Constitutional? DP requires PJ over the .
Does one of the four traditional basis for in personam jurisdiction apply? (from Pennoyer)
1. is served with process in the forum state presence gives general jurisdiction;
2. s agent was served in the forum;
3. is domiciled in the forum stategives general jurisdiction (domicile = residence +intent);
4. consents to jurisdiction in the state. At any time, can waive protection of jurisdiction.
*This is about the raw, physical power over people and things within state boundaries.
*If one of these applies, then do a minimum contacts analysis.

Minimum Contacts Analysis not to offend traditional notions of fair play and substantial justice.
A. Contact between the and the forum state
- Assess if the purposefully availed himself of that state (Calder)
- Does the reach out to conduct business in that state?
- Assess the foreseeability that the could be sued in that forum (WWVW)
B. Fairness: a high degree of fairness can make up for lesser contacts.
- Relatedness - Does s claim arise from s contact with the forum state?
- Inconvenience - Is it inconvenient for and witnesses to represent themselves in that state?
- States interest - Does the state have an interest in providing a forum state? (McGee)
- Other: s interest, judicial efficiency, interstate interest in shared substantial policy
C. Stream of Commerce
- Asahi

C. Cases
Case Issue Takeaway
The Breakthrough Case
International Is service of process upon WA statute set up unemployment compensation that required
Shoe v. State of s agent sufficient notice employer contributions. International Shoe was a DE corporation with
Washington when the corporations its principal place of business in MO (citizen of MO); International shoe
(1945) activities result in a large had a few employees in WA. They did not have authority to enter into
volume of interstate contracts or make collections. Shoe had no offices in WA. Notice of suit
commerce so that the was served on Shoes salespersons and a copy of the notice was sent by
corporation receives the registered mail to Shoes MO address.
protection of the laws of Historically, s presence in the forum state required (Pennoyer)
the state and the suit is DP only requires that in order to subject a to an in personam
related to the activities judgment, if he is not present within the territorial jurisdiction, he
which make the must have certain minimum contacts with the territory such
corporation present? that maintenance of the suit does not offend traditional notions
of fair play and substantial justice.
Under what conditions is MINIMUM CONTACTS TEST: Quality and nature of the activity in
a corporation subject to relation to the fair and orderly administration of law.
personal jurisdiction in a Shoes contacts with WA were neither irregular nor casual - they
particular state? were systematic and continuous creates general jurisdiction
regardless of where it arose
Nowhere does this overturn Pennoyer it expands the basis of
jurisdiction.
Appropriateness of jurisdiction: (a) level of s activity in the forum;
(b) claim arise out of the contact
Exploring the Meaning of Contacts & Fair Play and Substantial Justice
WWVW Must the have VW was a regional distributor in the Northeast. The bought a car
(1980) minimum contacts with from and drove through OK; it exploded and they sued in OK state
the forum state before the court. challenges OK cts PJ.
court can exercise in OK court did not have jurisdiction over NY wholesaler.
personam jurisdiction No relevant contact with the forum b/c s did not purposefully
over him? avail themselves of any benefits in OK (e.g. closing sales, performing
services, soliciting business through salespersons or advertising).
Unilateral act of a third party moved the car from NY to OK
Minimum contact test: Contact test + Fairness test (Factors in
determining whether an exercise of PJ would offend traditional
notions of fair play and substantial justice):
- s burden (a primary concern);
- States interest in adjudicating the dispute;
- s interest in obtaining convenient and effective relief;
- Interstate judicial systems interest in obtaining the most
efficient resolution; and
- Shared interest of the states in furthering their public and social
policies.
Although it may be foreseeable that the car could be driven into OK,
VW could not reasonably anticipate being sued there. (Circular!)
foreseeability alone is never a sufficient benchmark for PJ.
Would it matter if the accident was in CT, much closer? No, excluding
jurisdiction in a contiguous State such as PA as surely as in more
distant States such as OK. It was not the distance that counts, but the
state sovereignty.
Asahi Whether the mere (Maj)PJ in CA would be unfair under the unusual circumstances of
(1987) awareness on the part of the case. California lacks PJ over Asahi on fairness grounds.
a foreign that the California had no discernible interest; imposed severe hardship on
components it Asahi; issue had nothing to do with road safety in CA (corporate
manufactured, sold, and contract); no reference to CA law.
delivered outside the US OConnor, J. +3:
would reach the forum -Purposeful availment requires a conduct that indicates an intent or
State in the stream of purpose to serve the market in the forum state. Mere awareness that
commerce constitutes the stream of commerce may sweep goods into the state after they
minimum contacts leave the s hands insufficient to satisfy purposeful availment.
between the and the -Burger King: Substantial connection between the and the forum
forum State such that the State necessary for finding minimum contacts must come about by a
exercise of jurisdiction deliberate action of the purposefully directed toward the forum
does not offend state.
traditional notions of fair Clear evidence: E.g. designing the product for the forum state market;
play and substantial advertising in the forum; establishing channels for giving advice to
justice. customers in the forum; marketing through a distributor who agrees
to serve as the sales agent in the forum, etc.
Brennan, J. +3:
-Min requirements inherent in the concept of fair play and substantial
justice defeat the reasonableness of jurisdiction even though the
has purposefully engaged in forum activities.
-So long as places a product in the stream of commerce (at least in
substantial quantities) & is aware that the final product is being
marketed in the forum state, the possibility of a lawsuit there cannot
come as a surprise. The maker both foresees and benefits from the
sales in other states, whether it distributes them there directly or
indirectly profits from the fact that another entity conveniently does
so in its place. Deliberate placement of products into the stream of
commerce is sufficient for PJ.
-Foreseeability: It must be foreseeable that the s conduct &
connection with the State are such that he should reasonably
anticipate being haled into ct. there. WWVW.
Stevens, J.: Examination of min contacts is not always necessary to
determine constitutionality of cts assertion of PJ.
-Whether or not the s conduct rises to the level of purposeful
availment requires a constitutional determination that is affected by
the volume, the value, and the hazardous character of the
components.
A foreign manufacturer or component maker that sells its products to wholesalers outside the US, without cultivating the
U.S. market in any way, will likely not be subject to jurisdiction, even if its product is imported into the US and injures a
consumer here. If that manufacturer develops a relationship with a U.S. distributor, sells goods to that distributor, and
encourages U.S. sales, it will likely be subject to jurisdiction for clams arising from those sales in the state where it directs
its goods, i.e., where the U.S. distributor is located. However, it is not clear whether the manufacturer will be subject to
jurisdiction in other states where the distributor resells the goods.
Walden v. Fiore Whether a court may No, b/c s contacts with the forum state cannot be decisive in
(2014) exercise personal determining whether the s due process rights are violated & had
jurisdiction over a on no other contacts in the forum state.
the basis that he knew his caused harm to suffered in a forum state while knowing they lived
allegedly tortious conduct in that state that fact alone does confer PJ.
in another state would -Fed cts ordinarily follow state law in determining the bounds of
harm s with connections their PJ. Daimler AG. A fed dist. ct.s authority to assert PJ in most
to forum state. cases is linked to service of process on a who is subject to the
jurisdiction of a ct of general jurisdiction in the state where the
district ct is located. Whether the exercise of jurisdiction
comports with the limits imposed by federal due process on the
forum state. (14th Amendment); certain minimum contacts such
that the maintenance of the suit does not offend traditional notions
of fair play and substantial justice.
Shaffer: The inquiry focuses on the relationship among the , the
forum, and the litigation. s suit-related conduct must create a
substantial connection with the forum State.
(a) Relationship must arise out of contacts or affiliations that the
himself intentionally creates with the forum State. Burger King.
Unilateral action of vs. s purposeful action of reaching out
beyond their State and into another by entering a contractual
relationship that envisioned continuing and wide-reaching contacts
in the forum State. Burger King.
(b) Minimum contacts analysis looks to the s contacts with the
forum state itself, not the s contacts with persons who reside
there. cannot be the only link between the and the forum. (-
relationship, standing alone, is an insufficient basis for
jurisdiction.)
never traveled to, conducted activities within, contacted anyone in,
or sent anything or anyone to the forum state.
Calder v. Jones May a state court exercise Jones lived in worked in CA and sued Calder for libel who wrote a
(1984) jurisdiction over an out- nasty article about her in FL that was widely circulated in CA. Calder
of-state party whose was served with process by mail in FL.
intentional conduct in the Because s activities are calculated to cause harm in another state
second state is calculated than their own, the state court where the harm is suffered may
to cause, and does cause, exercise personal jurisdiction.
injury to the complainant Intent
in the first state? D purposefully availed himself of and established minimum
contacts with the state of CA through newspaper sales in CA.
It was okay that never set foot in CA! There was a targeted
outreach with a bad effect Calder Effect (Intentionally causing
an effect)
s conduct is not tethered to the state in which he was present
physically.
Johnson v. Arden cat breeders sued s, an Internet service provider (ISP) and
(2010) Internet bulletin board posters and website owners for claims arising
from allegedly defamatory posts.
Zippo test: Sufficiency of internet contacts under a specific
jurisdiction analysis.
Sliding scale measuring the likelihood of personal jurisdiction
(active contract formation & repeated transmission of computer
files to mere informational posts)
Calder test: should have known that the burnt of the injury would
be felt by in the State in which lives & works and intentionally
targeted the forum state. (Used merely as an additional factor to
consider when evaluation s relevant contacts with the forum state;
Additional contacts, mere effects in the forum state are insufficient to
confer PJ.)
Effects test: s tortious acts can serve as a source of personal
jurisdiction only where the makes a prima facie showing that the
s acts (1) were intentional, (2) were uniquely or expressly aimed at
the forum state, and (3) caused harm, the burnt of which was suffered
and which the knew was likely to be suffered in the forum state.
Statutory Authority for Jurisdiction (State Long-Arm Statutes)
Gray v. American manufactured an allegedly defective safety valve in OH and sold it
Radiator to American Radiator who incorporated the valve into a water heater
(1961) at his plant in PA. It was then sold to in IL, where it exploded.
Long-arm statute for tortious activity could read tortious act as the
place where the injury occurred. IL courts have PJ over OH
(speculating that many of the OH valves were in IL)
In law the place of a wrong is where the last event takes place which
is necessary to render the actor liable. To be tortious an act must
cause injury and the concept of injury is an inseparable part of the
phrase.
Feathers v. Allegedly defective tank enroute from PA to VT exploded near s
McLucas house in NY.
(1965) If in person of through an agent, he commits a tortious act within the
state under NY long-arm statute is too plain and precise to read it
to be synonymous with commits a tortious act without the state
which causes injury within the state.
The purpose of 302 was to confer on the court PJ over a non-
domiciliary whose act in the state gives rise to a cause of action or to
subject non-residents to personal jurisdiction when they commit acts
within the state. Had the legislature of NY intended to confer
jurisdiction in the strength of injurious forum consequences alone,
without regard to the locus of the commission of the tortious act
itself, it would presumably have used language appropriate to reflect
such a design.
Jurisdiction based on the presence of s property
Shaffer v. In order for the forum owned share of stock in Greyhound, which was incorporated in DE.
Heitner state to exercise in rem filed a shareholders derivative suit against the corp for violating
(1977) jurisdiction on a their fiduciary responsibilities. challenges PJ.
nonresident , must he DE law: If s property is sequestered, must make general
have minimum contacts appearance ( subject to PJ).
with the forum state such Court says no PJ
that has purposefully While the existence of s property within a forum state might
availed himself? suggest that it has other contacts with the forum, the existence of
property alone does not support personal jurisdiction over .
When proceeds in rem or quasi in rem against s property, min.
contacts test must be established to be consistent with DP clause.
Shoe test applies to both in personam and (quasi) in rem.
All assertions of state court jurisdiction must be evaluated according
to the standards set forth by International Shoe and its progeny.
Cause of action is not otherwise related to rights & duties growing
out of that ownership (Focus on relationship between the with the
forum & the litigation).
General Jurisdiction Alternative
Daimler AG v. Can a foreign corp be Argentine sued German for conduct that took place in Argentina
Bauman subjected to a courts by its Argentine subsidiary, premised on the agency relationship
(2014) general jurisdiction based between and its US subsidiary, whose contacts in the forum state
on the contacts of its in- may subject it to the general jurisdiction.
state subsidiary with the Even if MBUSA is at home in CA and its contacts are imputable to
forum? Daimler, no basis to subject Daimler to general jurisdiction in CA.
A subsidiarys jurisdictional contacts can be imputed to its parent
only when the former is so dominated by the latter as to be its alter
ego. A subsidiary, for e.g., might be its parents agent for claims
arising in the place where the subsidiary operates, yet not its agent
regarding claims arising elsewhere.
Concern for international comity.

D. Personal Jurisdiction Rules


Rule Remarks
4(d) Waving Service
sends waiver to by mail (addressed to ; or subject to service under 4(h), to an officer or
managing agent, etc)
Must include a copy of the complaint, two copies of the waiver form, and a prepaid addressed
envelope for returning the form
must return 30 days after the request was sent (or 60 days if outside the US)
Failure to Waive:
If for no good reason, is responsible for expenses later incurred in making service and reasonable
expenses.
If waive service has 60 days to serve an answer to the complaint (90 if outside U.S.) instead of 21
4(d)(5) Waiving service does NOT establish jurisdiction over ( not a consent). Receiving
summon in person (formally) establishes jurisdiction.
4(k) Territorial Limits of Effective Service
Serving a summons or filing a waiver of services establishes PJ over who:
4(k)(1)(A) Authorizes exercise of personal jurisdiction by a federal court only to the extent a state court of the
state in which it sits, under the states long-arm statute, could exercise jurisdiction; incorporates
the local state long-arm statute as a constraint on federal court jurisdiction.
Minimum contact analysis
4(k)(1)(B) The 100-mile bulge rule authorizes jurisdiction over an impleaded party not otherwise within the
district courts reach if service was affected within 100 miles of the court
Exception: a party who ordinarily would not be reachable within 100 miles can implead.
4(k)(1)(C) Provides for nationwide service when authorized by a federal statute. E.g. antitrust, multiparty, etc
4(k)(2) Extends federal power to its outermost constitutional limits in federal claims cases
Fed Q claims confer PJ over properly served if: not subject to jurisdiction in any state court of GJ
[4(k)(2)(A)]; and consistent with Constitution.
For Foreign Companies:
1. Does the claim arise under federal law?
2. Is the beyond the jurisdictional reach of any state court?
3. Are there sufficient aggregate contacts with the US as a whole to satisfy the 5th amendment DP?

Procedures for Challenging Personal Jurisdiction


Rule
12(b)(2) Motion to dismiss for lack of personal jurisdiction
can choose to include it in either responsive pleading, pre-answer motion, or motion
has to comply with Rule 11 in serving the answer; admit some material allegations in the answer.
But if can raise the 7 defenses in a motion, he doesn't have to accept as true factual allegations raised
by .
12(h)(1) Waiving Jurisdiction (failure to include it in a responsive pleading or to file a motion)
PJ is not a matter of sovereignty, but a matter of individual liberty. As an individual right, like any
individual right, it can be waived.
II. Notice
DP requires, in addition that courts have PJ, that the be given notice and an opportunity to be heard before a judgment can
be entered against her.

Requirement of Notice
Mullane v. May a state The only notice given of the proceeding: publication in a newspaper
Central Hanover constitutionally dispense 4 times for a brief and cryptic ads that did not identify the
Bank with personal service of beneficiaries. Banks regular correspondence was nth alike
(1950) process even if it knows Ct held that news paper ads did not satisfy due process.
how to contact the ? Alternative (to personal service of written notice) means could also
be used in situations in which that form is impracticable
constructive notice for unknown persons is constitutionally OK (but
not for known s).
A method of service of process must either be (1) reasonably
certain to provide actual notice, or (2) the lesser of several evils, that
is, a feasible form of notice that is not substantially less likely to
give actual notice than other options.
Elementary & fundamental requirement of DP: notice reasonably
calculated, under all circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present
their objections. The notice must be of such nature as reasonable to
convey the required information, and it must afford a reasonable
time for those interested to make their appearance.
Not a guarantee that notice will be received. If certified mail notice is
returned, a reasonable person would take further actions if available.
First class mail is usually sufficient.
s whose interests or whereabouts could not with due diligence be ascertained. These beneficiaries simply could
not be identified. As to them, notice by publication was constitutionally permissible.
s whose whereabouts were not known in the ordinary course of business, but which could be discovered upon
investigation (with some effort & at some expense); Substituted service (e.g. notice by publication) permitted. The
practical difficulties and costs that would be attendant on frequent investigations into the status of great numbers of
beneficiaries, many of whose interests in the common fund are so remote as to be ephemeral.
s of known place of residence. As to them, notice by publication simply is not reasonably calculated to reach them.
Service upon Foreign : Hague Convention provides a uniform framework for serving process in civil or commercial
cases upon s located in any of the dozens of contracting states.
If has expressly stated his preference of manner of communication or if his domiciliary is nowhere to be found with
reasonable effort, substituted service (e.g. Facebook msg, emails, etc) could be authorized by the courts.
III. Subject Matter Jurisdiction
A. Introduction
may be sued in any state with which she has sufficient contacts to satisfy the statutory and constitutional tests for PJ. The
next Q is: which court will hear the case?

Subject Matter Jurisdiction: the power of a court to hear a particular type of case & claims asserted in it.
State courts: Courts of general subject matter jurisdiction (can hear any claim*)
*In a very narrow subset of cases federal courts have exclusive jurisdiction.

Federal courts: Courts of limited subject matter jurisdiction. Art. III 2 of the Constitution provides 9 categories (heads)
of jurisdiction incl. arising under the Constitution & laws of the U.S, and controversies between citizens of different states.
This jurisdiction is not automatically bestowed on the fed cts. It has to be conferred by statutes.

Federal courts can hear claims:


1. Between citizens of different states alienage jurisdiction 1332(a)(1); or
2. About a federal question of law (1331)

B. Diversity Jurisdiction

Rule Remarks
1332(a) Fed Cts original jurisdiction over civil actions wherein the matter in controversy exceeds the sum
or value of $ 75,000, exclusive of interest and costs; and between
(a) citizens of different States;
(b) citizens of a State & citizen/subject of a foreign state*;
(c) citizens of different States with citizens of foreign state as additional parties;
(d) a foreign state as & citizen of a State.
*Alienage jurisdiction; U.S. Constitution does not provide for federal jurisdiction over cases by an
alien against an alien; there must be a citizen of a US. State on one side to qualify.
1332(c) Corporation is deemed a citizen of (a) every State and foreign state as place of incorporation; and (b)
its principal place of business.

Citizenship: defined by domicile. To establish domicile, must reside there and have an intent to stay.
E.g. Drivers license, address, bank, employed, etc.
You dont lose your old domicile until you get a new one
Corporations will have dual citizenship: place of incorporation & Principal place of business Nerve Center* (Hertz)
*Nerve Center: where the corporations high level officers direct, control, and coordinate the cos activities.
N.B. Unincorporated associations are not treated as separate entities for diversity purposes, and in determining diversity
one must consider the citizenship of all members of the association.

Under 28 U.S.C. 1332, the district court has original jurisdiction of all civil actions where the matter in controversy
1) exceeds the sum or value of $75,000; and
2) is between citizens of different states.

1. Is there a complete diversity on both sides of the v.?


- Where are parties domiciled?
- What is the nerve center of a corporation?
- What is the residence and intent to stay of an individual?

2. Does the minimum amount in controversy exceed $75,000?


(a) Did you plead $75,000.01, but only recover $70,000?
- A-ok if you plead in good faith
- It will not void the judgment, but the judge may make you pay court cost (1332(b))
(b) Is the amount in controversy from a single ?
- Can use claim joinder to aggregate claims to reach minimum amount in controversy? Rule 18
Rule 18 (Joinder) allows to combine into one suit all the claims it has against a particular , no matter how unrelated. The
aggregate total of all the claims, however unrelated, comprises the jurisdictional amount.
BUT Several s under Rule 20 asserting claims against the same that all derive from the same T/O cannot aggregate their
related claims to satisfy the jurisdictional minimum.
Single s claim against a single , however unrelated, may be aggregated to meet >75,000 requirement; Single cannot,
however, aggregate claims directed at different s in the same lawsuit.
- It is okay if there are different theories, as long as it is the same .
(c) Is the claim seeking non-monetary (injunctive or declaratory) relief?
- The general rule is that the courts weigh the value of the right sought to be enforced or the cost to .
- State Farm v. Campbell: Punitive damages that exceed compensatory damages by ratio greater than four to one or perhaps
nine to one (a single-digit ratio) might violate DP. Punitive damages were available as a matter of law & within the single-
digit requirement taken to meet the jurisdictional minimum when combined with compensatory damages.
Engage Learning, Inc. v. Salazar: In general, in contrast to a motion to dismiss for failure to state a claim, in deciding a
motion to dismiss for lack of SMJ, the court accepts as true only uncontroverted allegations of the complaint. Disputed facts
outside the pleadings are subject to the fact-finding of the ct.
St Paul Mercury Indem. Co v. Red Cab Co.: The sum claimed by the controls if the claim is apparently made in good faith.
Dismissal is required when it appears to a legal certainty that the claim is really for less than the jurisdictional amount.
C Wright & M. Kane: Value of nonmonetary relief sought exceeding minimum requirement from either s or s viewpoint
supports jurisdiction.

Diversity of Citizenship Requirement


Mas v. Perry s are recently married Frenchman and MS woman, who rented an apartment from while being
(1974) students in LA. has been watching them through two-way mirrors.
Complete diversity of the parties is required in order for diversity jurisdiction to exist,
meaning that no party on one side may be a citizen of the same state as any party on the other side.
The diverse citizenship among adverse parties must be present at the time the complaint is filed.
Jurisdiction is unaffected by subsequent changes in the citizenship of the parties.
For diversity purposes, citizenship means domicile. (Residence insufficient; Absence subjective
intent* to make the State of residence a permanent domiciliary, not a domicile); A persons domicile
is the place of his true, fixed, and permanent home and principal establishment, and to which he
has the intention of returning whenever he is absent therefrom.
A change of domicile may be effected only by a combination of 2 elements: (a) taking up residence
in a different domicile (b) with the intention to remain there.
This case stands on 2 separate legs of diversity jurisdiction: (a) claim by an alien against a State
citizen; (b) an action between citizens of different States.
Amount in controversy is determined by the amount claimed by the in good faith. Federal
jurisdiction is not lost because a judgment of less that the jurisdictional amount is awarded.
If the court is to treat a wife to (fictionally) follow the hubbys domiciliary, Mrs. Mas will be treated
as a French domiciliary and will be dispossessed of codes to invoke by herself in bringing a suit
against .
*Evidence of subjective intent: Voter registration, qualifying to pay in-state tuition, automobile registration, payment of
real & personal taxes, location of bank accounts, etc.

C. Federal Question
Under 28 U.S.C. 1331, the district court has original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.
Although the constitutional grant of fed Q jurisdiction would permit jurisdiction if any federal issue might potentially be
raised in the case, 1331 is not nearly so broad. To invoke jurisdiction under 1331, federal law must be part of the s well-
pleaded complaint.

Q: Does the issue arise under federal law?


A case arises under federal law if the is alleging a right or interest that is substantially founded on federal law, which
consists of federal common law, federal constitutional law, federal statutory law, treaty, and federal admin regulations.
The federal Q must appear as part of the s cause of action as set out in a well-pleaded complaint. (Mottley Rule)
Is the attempting to vindicate some right given by federal law?
Broader Interpretation of constitutional grant of arising under jurisdiction:
#1: 28 U.S.C. 125359: Its power to review a state ct decision depends not on the presence of a well-pleaded fed question
on the face of the state ct complaint, but on the existence of a dispositive federal question in a final state ct judgment.
State ct judgments may turn on federal law even where the complaint was based entirely on state law and the federal
issues were introduced into the case by way of defense or counterclaim.
#2: In Osborn v. Bank of the United States, the court read a statute at issue to grant federal courts jurisdiction over any action
to which the BoUS was a party, although many of those actions would have turned entirely on state law. (Under Art. III,
BoUSs capacity to sue, as a federal creation, would depend on federal law.)

Mottley Rule: If a is invoking a federal Q jurisdiction then a federal Q must be pleaded in the complaint stating that its
claim is based upon federal law or the Constitution.
- Counterclaims (s answer or defense) is irrelevant in establishing federal Q jurisdiction.
- If jurisdiction over claims is based on mixture of federal and state law,
Merrell Dow Pharmaceuticals (1986) Complaint asserted state law claims of N and product liability and alleged
violations of a Federal Act (but the federal act did not give rise to an independent right of action). Court said there
was no federal Q b/c complaint alleging a violation of a federal statute as an element of a state cause of action, when
Congress has determined that there is no private right, does not state a claim arising under the Constitution.
Grable & Sons Metal Prods, Inc. v. Darue Eng. & Mfg. (2005) IRS seized property from Grable to satisfy delinquent
federal taxes. Grable brought a state court action to quiet the title (state law claim) and Grable argued the title was
invalid because IRS failed to provide them with personal notice required by statute. Court said the meaning of the
federal statute is in dispute.

Case Issue Takeaway


Well-pleaded Complaint Rule
Louisville & Can s anticipated s were given unlimited railroad passes by for injury. A federal law
Nashville defense that raises a was enacted barring such passes, and refused to renew the passes.
Railroad Co. v. federal Q be used to sued for specific performance (breach of contract Not a federal
Mottley establish federal cts SMJ? claim). anticipated that would need to respond with the
(1908) Congressional Statute & 5th Amendment violation, and thus, this
would be a federal Q.
MOTTLEY Well-Pleaded Rule: If a is invoking federal q
jurisdiction, then a federal Q must be pleaded in the s complaint
(s statement of his own cause of action itself).
cannot merely allege an anticipated defense and asserts that the
defense is in conflict with federal law or the Constitution to satisfy
the Federal Q jurisdiction.
Federal Question: must be a question of federal law.
State law claims with federal ingredients
(Which body of law is creating the right of action?)
Smith v. Does a state-law , a shareholder of a corp, sued it to forbid investment in bonds
Kansas City Title conferred cause of action issued under a federal statute, claiming that it was unconstitutional,
& Trust Co., that nevertheless turns on which was against MO law.
(1921) the fed Q confer SMJ on Where it appears from the complaint that the right to relief depends
federal courts? upon the construction or application of the Constitution or federal
laws, and that such federal claim rests upon a reasonable foundation,
the dist. ct. has jurisdiction.
Merrell Dow Does a state-law s asserted a variety of state law claims, incl. negligence per se (b/c
Pharmaceuticals conferred cause of action it allegedly violated the FDCA by misbranding the product).
(1986) that nevertheless turns on State law created the claim but the litigations turns on to the
the fed Q confer SMJ on interpretation of federal law. (State law created claim that turns on
federal courts? the federal law interpretation confers no 1331 jurisdiction.)
Lack of importance of the federal law involved.
A statute that creates a federal substantive right, but is held not to
create a private right to sue to enforce that right, will not support
jurisdiction arising under 1331.
It only treats the absence of a federal private right of action as
evidence relevant to, but not dispositive of, the sensitive judgments
about congressional intent that 1331 requires; it does not convert
fed cause of action from a sufficient to necessary condition.
Sometime Congress passes a statute proscribing certain behavior but fails to create a claim to allow those harmed by such
behavior to sue (i.e., Congress fails to create a private right of action.
Occasionally fed cts hold that Congress did create a private right of action even though the legislation failed to say so
Implied rights of action
Grable & Sons v. Does Merrell Dow always IRS seized s land for tax nonpayment. failed to redeem the
Darue require a federal cause of property; sold at public auction to . sued in state court, on a state
(2005) action as a condition? law claim for quiet title. claimed that did not receive valid title
from IRS (IRS failed to follow proper procedures of notice)
Federal Q jurisdiction upheld.
Rejection of a notion that federal Q jurisdiction required a federally
created claim. A state law claim can satisfy the centrality requirement
by implicating sufficiently a federal law (not confined to the
Constitution)
State law claim arises under federal law (centrality satisfied) if:
(a) The case necessarily raises a federal issue;
(b) The federal issue is actually disputed and substantial; and
(c) Federal jurisdiction will not disturb any congressionally
approved balance of federal and state judicial responsibilities.
Holmes Test for Inclusion:
Claim (right to recover) arises out of federal law that creates cause of action
N.B. Exclusion test (not endorsed by maj): If the remedies are not provided by federal law, theres no federal jurisdiction.
If not available, go to Smith & Grable Test:
State claim that could arise under federal law may be heard by a federal court if s own state created claim necessarily
raises a federal issue.

D. Removal Jurisdiction

Rule
28 U.S.C Actions Except as otherwise expressly provided by Act of Congress, any civil action brought
1441(a) Removable in a State court of which the district courts of the United States have original
Generally jurisdiction, may be removed by the s, to the district court of the United States for
the district and division embracing the place where such action is pending.
28 U.S.C Removal based may not be removed if any of the parties in interest properly joined and served
1441(b) on Diversity of defendants is a citizen of the State in which such action is brought.
Citizenship If there is a diversity of citizenship but chooses to file a suit in the state court, it
is nonremovable to the federal court. (Protection is extended to ; , an in-stater,
doesnt need protection conferred by the federal court).
28 U.S.C Joinder of If an action includes a claim arising under a federal Q and a claim without original
1441(c) federal law OR supplemental jurisdiction of the district courts, the entire action may be removed
claims & state if the action would be removable without the inclusion of nonremovable claims.
law claims Permit removal if a piece of an action is removable (and some arent) that is not
within the supplemental jurisdiction (state law issue is not sufficiently closely
related to the federal claim) Remove the entire claim to federal court. District
courts will sever all the non-federal question and remand to the state court so it can
be resolved there.
28 U.S.C. Procedure for s desiring to remove any civil action from a State court shall file in district court
1446(a) Removal of where such action is pending a notice of removed signed pursuant to Rule 11 and
Civil Actions containing a short and plain statement of the grounds for removal, together with a
copy of all process, pleadings, and orders served upon such s in such action.
(If removal is improper, should file a motion to remand the case back to state court
28 USC 1446(c)).
files a notice of removal in fed ct. (expressing his wish to remove a suit in state
ct to this particular district ct.). It can only be brought to the district court within the
state that encompasses/embraces the place in which the original state court can be
found. Notice of removal has to comport to the Rule 11 well-groundedness &
truthfulness required (accompanied by sanctions) & Supply the fed court with
summons, complaint, motions, judicial order (granted to the motions made), etc.
28 U.S.C. Requirements (1) The notice of removal of a civil action or proceeding shall be filed within 30 days
1446(b) for Removal after the receipt by the a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based, or within 30 days after the
service of summons upon the if such initial pleading has then been filed in court
and is not required to be served on the , whichever period is shorter.
(2)(A) When a civil action is removed solely under section 1441(a), all s who have
been property joined and served must join in or consent to removal.
(B) Each shall have 30 days after receipt by or service on that of the initial
pleading or summons described in paragraph (1) to file the notice of removal.
(3) Except as provided in subsection (c), if the case stated by the initial pleading is
not removable, a notice of removal may be filed within 30 days after receipt by the
a copy of an amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become removable.
28 U.S.C. Requirements; (1) A case may not be removed under (b)(3) on the basis of jurisdiction conferred
1446(c) removal based by section 1332 more than 1 year after commencement of the action, unless the
on diversity of district court finds that the has acted in bad faith in order to prevent a from
citizenship removing the action.
(2) If removal of a civil action is sought on the basis of the jurisdiction conferred by
section 1332(a), the sum demanded in good faith in the initial pleading shall be
deemed to be the amount in controversy except if the initial pleading seeks (i)
nonmonetary relief; or (ii) money judgment.
If the basis of the action was diversity, you cannot remove after the 1st year mark
since the original filing of the action (even if amount of the suit has been notified
later), unless the deliberately concealed this piece of claim to preclude removal to
fed ct.
28 U.S.C. Notice to Promptly after the filing of such notice of removal of a civil action the s shall give
1446(d) adverse parties written notice thereof to all adverse parties and shall file a copy of the notice with
the clerk of such State court, which shall effect removal and the State court shall
proceed no further unless and until the case is remanded.
Court Permission is NOT required.
28 U.S.C. Procedure A motion to remand the case on the basis of any defect other than lack of SMJ must
1447(c) after Removal be made within 30 days after the filing of the notice of removal under section
1446(a). If at any time before final judgment it appears that the district court lacks
SMJ, the case shall be remanded.
cannot just say I dont want my suit to proceed in fed ct. It needs to be filed in a
motion to remand (if not SMJ) within 30 days. But SMJ can be raised whenever.
28 U.S.C. Diversity after If after removal the seeks to join additional s whose joinder would destroy SMJ,
1447(e) Removal the court may deny joinder, or permit joinder and remand the action to the State
court.

Case Issue Takeaway


Well-pleaded Complaint Rule
Dart Cherokee s notice of removal of a case from state to federal court need include only a plausible allegation
v. Owens that the amount in controversy exceeds the jurisdictional threshold; it does not need to contain
(2014) evidentiary submissions.
IV. Erie Doctrine: Federal vs. State Law? (Vertical Choice of Law Inquiry)
Rules Enabling Act: Congress gives SC the power to promulgate the Federal Rules of Civil Procedure
Rules of Decision Act: Substantive state law should be applied in state cases unless the US Constitution or Congress
says otherwise
The laws of several states, except where the Constitutions or treaties of the US or acts of US Congress require, shall be
regarded as a rule of decision in civil actions in the courts of the United States (federal courts).
Erie Black Letter Law: In diversity cases, a federal court must apply state substantive law.
Why? Rules of Decision Act and the 10th Amendment

0. A federal court in diversity is required to apply the substantive law of the state in which it is sitting, incl. that states
conflict of law rules. (Erie)
1. Is there a federal provision (FRCP, federal statute, Constitution) on point (covers the issue) & directly conflicts
with state law)?
Is the provision arguably procedural, meaning that it is valid under Rules Enabling Act?
Yes: Apply federal procedural law (Hanna) b/c REA & Supremacy Clause.
No: Apply Erie. The court must apply state substantive law where it conflicts with federal law
2. If there is no federal provision on point, federal judges must apply state law on a substantive issue. (Erie Test)
SoL and Choice of law rules are substantive. York & Klaxon.
Is there a different outcome when applying state v. federal law? York Outcome-Determinative Test
If a law is not clearly substantive federal court should apply the state law unless the federal court system has
an interest in doing things a certain way
Does use of the state law meet the Twin Aims of Erie from Hanna dicta?
o Avoiding Forum Shopping will parties flock to federal court to get a different outcome?
o Inequitable Administration of Justice are state citizens who cant get diversity citizenship to get into
federal court going to be disadvantaged?

Case Issue Takeaway


Rules Enabling Act: Congress gives SC the power to promulgate the Federal Rules of Civil Procedure
Rules of Decision Act: Substantive state law should be applied in state cases unless the US Constitution or Congress
says otherwise; The laws of several states, except where the Constitutions or treaties of the US or acts of US Congress
require, shall be regarded as a rule of decision in civil actions in the courts of the United States (fed cts).
Swift v. Tyson Narrow reading of the Federal courts are not required to apply state law on all aspects of a
(1842) Rules of Decision Act diversity case.
Laws of the several states include only state statutes and state
common law of local concern (e.g., land).
As to common law matters of general concern (e.g., basic principles
of torts & contracts), federal courts were free in diversity cases to
apply their own conception of general common law.
Swift had defects:
- Reliance on baloney interpretation of the Rules of Decision Act.
- No uniformity (No way to distinguish btw local and general law)
- Discrimination by noncitizens against citizens the privilege of selecting the court for resolving disputes rested with an
out-of-stater, who could pick a more favorable forum (Forum shopping issues epitomized in B.W. Taxi Co.; Manufacturing
citizenship by s in order to pick a more pro- forum).
- Unconstitutionality: It usurps part of the power that the Constitution left to the states.
Erie Railroad Co. Overruling Swift State law governs substantive issues. State law includes not only
v. Tompkins statutory law but case law as well; Rules of Decision Act required
(1938) application of the written and unwritten substantive law of the
states in diversity cases.
There is no federal general common law, and that except in matters
governed by the U.S. Constitution or by acts of Congress, the law to
be applied by federal courts in any diversity case was the law of the
state. Unless its a federal Q case, state law both positive and
common controls.
Federal courts lack the constitutional authority to develop
substantive rules of common law applicable in a state because
Congress lacked such authority under Art. I of U.S. Constitution. Art.
X then reverses all power not expressly given to the fed govt to the
states.
Concurring: In diversity cases, fed cts must apply state substantive
law and federal procedural rules.
Post-Erie Questions:
- FRCP came into law in the same year. In the absence of federal procedural rules (pre-1938), state procedures applied.
Erie had held that state laws were to be applied.
- Horizontal choice of law?
- Does Erie apply to equity cases? Rule of Decision Act says it applies to courts of law
- How can one distinguish with certainty substantive vs. procedural law?
Guaranty Trust Can federal courts hear countered s suit arguing that the NY SoL barred s claim.
Co. v. York the suit even though it claimed that NY SoL did not apply under Erie b/c their claim was in
(1945) would be barred if it took equity rather than in law.
place in state courts Held: Where a state statute that would totally bar recovery in state
between non-diverse court has significant effect on the outcome, even if the suit is brought
parties? in equity, the federal court is bound by state law.
Outcome-determinative Test: Whether disregarding the state law
that would be controlling in an action on the same claim in a state
court would significantly affect the result of the litigation in federal
court.
Federal courts hearing cases solely because of the diversity of
citizenship of the parties in effect serve as state courts, and the
outcome in the fed ct should not differ substantially from what the
outcome would be were the case tried in a state court.
Looks to the intent of Erie (vertical uniformity): Whether state law is
substantive or procedural is irrelevant as long as it produces an
impact on the outcome of the case.
- Should federal courts be clones of state courts? (There is no rule no matter how plainly nonsubstantive that does not
become outcome determinative at some point.
Hanna v. Plumer OH sued the estate of Osgood from MA over a car accident in
(1965) S.Carolina. served process by leaving documents with s wife,
which complied with the FRCP, but not MA law. moved to dismiss
on this basis, citing Erie, and the trial court granted the motion.
appealed, saying that FRCP rules in diversity actions. The Circuit
Court ruled that the state statute should govern because it is
substantive rather than merely procedural. appealed to the SC.
Outcome-determination analysis was never intended to serve as a
talisman; Choices between state & federal law are to be made not by
application of any automatic litmus paper criterion, but rather by
reference to the policies underlying Erie.
Hanna Part I
Is there a state law vs. uncodified federal rule conflict?
Twin aims of Erie (Litigant Equality): (a) discouragement of forum
shopping; (b) avoidance of inequitable administration of the laws.
Would the difference between applying state law and ignoring state
law would lead to prefer federal forum at the outset?
Hanna wouldnt have sued in federal court just to avoid the personal
service of process requirement of state law Federal law applies.
Hanna Part II
If a federal directive e.g., FRCP applies to the facts of the case & is
valid, Supremacy Clause requires that it be applied.
V. Pleadings
A. Pleading
A pleading (Rule 7) is a document that a lawyer must file at the beginning of the litigation. These are documents that parties
file with the court and serve on each other. The purpose of pleadings is to provide notice.
Complaint: sets forth the s claims
Answer: the s response
Other Pleadings as defined in Rule 7: answer to a counterclaim designated as a counterclaim; answer to a cross
claim; third-party complaint; an answer to a third-party complaint; if the court orders one, a reply to an answer
(12(1)(C) requires this to be done within 21 days)

Rule Category
2(a) One form of action There is one form of action the civil action.
7(a) Pleadings Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
s complaint can encompass answer against and a cross-claim against co-.
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
Co- who receives a crossclaim has an opportunity to refute it.
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
Third-party who is brought into the lawsuit by an original has an opportunity
to answer the complaint.
(7) if the court orders one, a reply to an answer.
s opportunity to answer to the eventual ruling.
8(d)(1) Pleadings to Be Each allegation must be simple, concise, and direct. No technical form is required.
Concise and Direct

B. Describing and Testing the s complaint

Rule Category
3 Commencing an Action A civil action is commenced by filing a complaint with the court.
8(a) Claim of Relief A pleading that states a claim for relief must contain: (for both and )
(1) a short and plain statement of the grounds for the courts jurisdiction, unless
the court already has jurisdiction and the claim needs no new jurisdictional
support;
(2) a short and plain statement of the claim showing that the pleader is entitled to
relief; and
(3) a demand for the relief sought, which may include relief in the alternative or
different types of relief.
10 Form of Pleading (a) Caption; Names of Parties.
Every pleading must have a caption with the courts name, a title, a file number,
and a Rule 7(a) designation. The title of the complaint must name all the parties;
the title of other pleadings, after naming the first party on each side, may refer
generally to other parties.
(b) Paragraphs; Separate Statements.
A party must state its claims or defenses in numbered paragraphs, each limited as
far as practicable to a single set of circumstances. A later pleading may refer by
number to a paragraph in an earlier pleading. If doing so would promote clarity,
each claim founded on a separate transaction or occurrenceand each defense
other than a denialmust be stated in a separate count or defense.
(c) Adoption by Reference; Exhibits.
A statement in a pleading may be adopted by reference elsewhere in the same
pleading or in any other pleading or motion. A copy of a written instrument that is
an exhibit to a pleading is a part of the pleading for all purposes.
C. Consistency

Rule Category
8(d)(2) Alternative Statements A party may set out two or more statements of a claim or defense alternatively or
of a Claim or Defense hypothetically, either in a single count or defense or in separate ones. If a party
makes alternative statements, the pleading is sufficient if any one of them is
sufficient.
*Alternatively: Either this happened or that happened;
*Hypothetically: If this really happened, then that happened.
8(d)(3) Inconsistent Claims or A party may state as many separate claims or defenses as it has, regardless of
Defenses consistency.
Since pleading comes early in the litigation (before discovery), it gives room for
to plead theories she cant prove together with easily provable claims.

D. Truthfulness - Sanctions
Rule 11 provides that a lawyer, by presenting to the court a pleading, motion, or other paper, certifies that to the best of
that lawyers knowledge, information, or belief formed after an inquiry reasonable under the circumstances, that he or she
has complied with all the requirements under the rule.

1. Continuing Certification - Rule 11(a)


a. Attorney certifies that four things under 11(b) are true when submitting documents and every time
something is done or advocated from that document.
i. 11(b)(1): Is this being presented for an improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation?
ii. 11(b)(2): Are the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law?
iii. 11(b)(3): Are the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further investigation or
discovery?
iv. 11(b)(4): Are the denials for factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information?
2. Sanctions are discretionary, not required.
3. Safe Harbor Provision Rule 11(c)(2)
A motion for sanctions must be served under Rule 5
Motion must not be filed or presented to the court if the claim is corrected within 21 days
4. What sanctions are available?
Court must not impose a monetary sanction for 11(b)(2) frivolous argument
Requires that the court issue a show-cause order under 11(c)(3) court may order an attorney, law
firm, or party to show cause why conduct described in the order has not been violated
5. Sanctions in Rule 11 are not available for discovery

Rule Category Content


11(a) Signature Every pleading, written motion, and other paper must be signed by at
least one attorney of record. Paper must state the signers address,
email, and phone.
11(b) Representations to the court By presenting to the court a pleading, written motion, or other paper
whether by signing, filing, submitting, or later advocating itan
attorney or unrepresented party certifies that to the best of the persons
knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances.
Empty head & pure heart is not excusable.
11(b)(1): It is not being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly increase the cost
of litigation;
11(b)(2): the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing
new law;
11(b)(3): the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery; and
11(b)(4): the denials for factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on
belief or a lack of information.
11(c) Sanctions Safe Harbor (1) After notice and a reasonable opportunity to respond, court
Provision determines that 11(b) was violated, can impose sanction against any
attorney, law firm, or party. Absent exceptional circumstances, law
firm must be held jointly responsible for a violation committed by its
partner, associate, or employee.
(2) Motion must be served on the party (under Rule 5) and they have 21
days to correct before files or presented to the court.
A separate Rule 11 motion must be served to the adversary: Im going to
give you 3 weeks during which to fix your mess or Ill go to the court.
11(c)(3) Show Cause Court may order an attorney, law firm, or party to show cause why
conduct specifically described in theorder has not violated 11(b). (court
cant impose monetary sanctions on its own with a show cause order)
11(d) Inapplicable to discovery -----

Case Issue Takeaway


Zuk v. alleged that Institute was infringing on his copyrights by selling
Eastern PA vdo made while he was working for them. moved for dismissal &
Psychiatric Inst. Rule 11 sanctions b/c had failed to conduct an inquiry into the facts.
(1996) Copyright of a derivative doesnt extend to the original work. Had the
s lawyer done adequate legal research he would have known; the
court imposed sanctions for failure to make a reasonably adequate
inquiry into the facts and law.
Sanctions may be imposed upon an attorney pursuant to 28 USC
1927 where the attorney multiplies the proceedings unreasonably
and vexatiously in willful and bad faith. When imposing Rule 11
sanctions, the court must take into account both s and his
attorneys investigations into fact & law, and should consider a wide
range of possible sanctions to offer minimum punishment.

E. Scrutinizing the Legal Sufficiency of s Claim

Rule Category Content


12(b) How to Present Defenses (6) failure to state a claim upon which relief can be granted
(Adequacy of the Pleading) Rule 12(b)(6) motion to dismiss for failure to state a claim
Challenge to the legal sufficiency of the pleading can be raised in an
answer or can be filed in a motion to dismiss.

Case Issue Takeaway


Mitchell v. s sued for breach of duty when it failed to protect them from
Archibald third-party criminal acts on or near s premises
(1978) A complaint failing to include facts constituting a cause of action may
be dismissed under 12(b)(6).
Court should accept s well-pleaded facts (factual allegations) as
true; Legal characterization of an action (legal conclusion) is not
accepted as true for motion to dismiss
Under s own allegations, the incident happened on public property;
Had the alleged that it happened on s premises, there would have
been a legal claim.
Naruto v. Slater To survive a motion under either 12(b)(1) or 12(b)(6), must allege
(2016) enough facts to state a claim to relief that is plausible on its face.
A claim is facially plausible when pleads enough facts that allow the
court to allow the court to draw a reasonable inference that is
liable for the misconduct alleged to raise a right to relief above the
speculative level.
F. Heightened Requirements for Specificity

Rule Category Content


8(a) Claim for Relief A pleading that states a claim for relief must contain:
(1) A short and plain statement of the grounds for the courts
jurisdiction, unless the court already has jurisdiction and the claim
needs no new jurisdictional support
(2) A short and plain statement of the claim showing that the pleader
is entitled to relief; and
(3) A demand for the relief sought, which may include relief in the
alternative of different types of relief.
9(b) Pleading Special Matters Fraud or Mistake; Conditions of Mind
Exception to 8(a) In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent, knowledge,
and other conditions of a persons mind may be alleged generally.
Purpose: Risk of tarnishing s reputation thus approach with care

Case Issue Takeaway


Conley v. Gibson Did petitioners fail to After s were fired, they brought a class action against their union
(1957) state a claim on which representative for violating the Railway Labor Act. moved to dismiss
relief could be granted? for failure to state a claim on which relief can be granted; 12(b)(6).
Was the claim sufficient? Conley Test: a complaint may be dismissed under 12(b)(6) when it
appears beyond doubt that the can prove no set of facts that
support his claim for relief.
All that FRCP require is a short and plain statement of the claim
that will give the fair notice of what the s claim is and the grounds
upon which it rests.
Judgment for : Complaint stated a sufficient circumstance in which
there was a harm done and wherein there was a judicial remedy.
Petitioners did not have to list a set of detailed facts supporting their
complaint.
Swierkiewicz v. brought a discrimination action against Sorema N.A., after he was
Sorema, N.A. demoted and ultimately fired.
Under 8(a)(2), a complaint does not have to allege facts that establish
a prima facie case, but rather just needs a short and plain statement
of the claims showing why they are entitled to relief; An employment
discrimination complaint need not contain specific facts establishing
a prima facie case (The prima facie case is an evidentiary standard,
not a pleading requirement).
Bell Atlantic
Corp. v.
Twombly
(2007)
Ashcroft v. Iqbal
(2009)

The Complaint

Did the complaint include three things under 8(a)(1)?


1. short and plain statement for the courts subject matter jurisdiction
2. short and plain statement showing you are entitled to relief (8a2)
a. Conley Standard: compliant is sufficient unless there is no set of facts on which the plaintiff could prove to
win the claim
b. Twiqbal Standard: P must plead facts to support a plausible claim
i. Three Rules for Twiqbal:
1. Court focuses only on alleged facts, ignoring conclusions of law
2. Facts must support a plausible claim, not just a possible claim
3. To determine plausibility, judge uses her own experience and common sense (subjective)
ii. Exception: Courts will allow liberal notice pleading in pro se complaints (Erikson v. Pardus 2007)
3. Demand for the relief sought, prayer for relief

Heightened Pleading Requirement


Is there an allegation of fraud or mistake?
o 9(b): When alleging fraud or mistake, must state the circumstances with particularity
o It is not enough to say he defrauded me- circumstances must be stated with particularity Bower
Is there an allegation of special damages?
o 9(g): If alleging special damages, must allege with specificity. Special damages are those that do not
normally flow from the event.
o Ex. Errection case form car accident
Is there a denial of a condition precedent?
o 9(c): If pleading a condition precedent, it suffices to allege generally that all conditions precedent have
occurred or been performed. But when denying a CP, a party must do so with particularity.

***Unless there is a rule like 9(b) or 9(g) that requires a heightened pleading requirement, the court cannot impose that
requirement on you***

Complaint Cases
Case Issue Takeaway
Notice Pleading Standard
Conley v. Whether After Plaintiffs were fired, they brought a class action against their union
Gibson (1957) petitioners failed representative for violating the Railway Labor Act. D moved to dismiss for failure
to state a claim on to state a claim on which relief can be granted (12(b)(6)).
which relief could
be granted? Is the CONLEY TEST: a complaint may be dismissed under 12(b)(6) when it appears
claim sufficient? beyond a doubt that the plaintiff can prove no set of facts that support his claim
for relief.

Policy Rationales:
Court assumed that most plaintiffs could not provide substantial facts at
the pleading stage and that these facts would be gleaned during the
discovery phase they also believe that this is logic behind FRCPs
design
At pleading stages, the courts should be more concerned with keeping
plaintiffs claims in court rather than keeping out non-meritorious claims.
This function is best served after discovery at the summary judgment
phase.

Plaintiff woncomplaint stated a sufficient circumstance in which there was a


harm done and wherein there was a judicial remedy. Petitioners did not have to
list a set of detailed facts supporting their complaint.
Heightened Pleading Requirement
Bell Atlantic v. What must a Anti-trust claim against a telephone and internet services arranged not to
Twombly plaintiff plead in complete. Claim based on allegation of parallel conduct, which may be evidence of
(2007) order to state a a violation, but is not in itself a violation.
claim? Plaintiff must allege enough facts to state a plausible claim.
Assuming they are true, factual allegations must be enough to raise a right
of relief above speculation
Facts should be sufficient to allow a reasonable expectation that
discovery will reveal evidence of illegal agreement
Pleading sufficient facts requires more than labels and conclusions
more than a formulaic recitation of cause and action elements
Reasoning: Judicial economy; leads to more specific responses, shorter discover
period, less fishing expeditions
Dissent: Judicial opinion that a charge is not plausible should not be grounds to
dismiss; to dismiss, judge must accept all factual allegations as true and that
certainly did not happen here; other means of managing judicial economy and
costs (like 12(e) for a more definite statement, 7(a) permits court to order P to
reply to Ds answer, rule 23 provides rigorous analysis for class certifications.
Dissent: Plaintiff should have their day in court.
Ashcroft v. Does a complaint Iqbal arrested and detailed after 9/11. Says federal officers violated his civil right
Iqbal (2009) need to be while in detention. Sued the government using a Bivens Action.
plausible under Bivens Action implied right of action that allows a P to sue the federal
the circumstances government when one of its employees violates their civil rights, like a
and factually true 1983 suit except for federal actors
to be well- Twombly pleading standard affirmed: To survive a 12(b)(6) motion to
pleaded? dismiss, complaint must state a claim of relief that is plausible on its face.
Plausible on its face when P pleads facts that allow the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged
Facts must show that D acted unlawfully, not just that it is probable or
possible that D acted unlawfully
Legal conclusions do not meet this standard UNLESS they are backed by
facts
o Legal conclusions are disallowed because they do not allow the
court to draw the reasonable reference that D is liable for the
misconduct alleged.
After Twiqbal:
P must plead more facts to survive 12(b)(6) motion later
Liberal pleading standard designed by FRCP drafters has now been
replaced by a heightened pleading standard.
Exception: Courts still allow liberal notice pleading for pro se complaints.
Special Pleading Requirements
Bower v. Whether D makes a promise that he will support P and her daughter. D later reneges and P
Weisman Ds files suit.
(xxx) motion
for 12(e) D filed preliminary motions:
should be 12(e) motion for a more definite statement
granted? o Granted when the complaint is so excessively vague so as to be
Whether unintelligible
Ds 9(b) o Must be filed prior to Ds responsive pleading and must be so
motion vague as to prevent D from preparing a responsible pleading
should be o A complaint that fails to specify which Ds are charged with
granted? what claims will suffice
Whether o Motion must point out the defects that require clarification
any of the o If court grants motion, and P does not submit a new pleading
claims within 14 days of that order, then the court make strike the
should be faulty pleading or issue another remedy
dismissed 9(b) motion to dismiss for failure to state fraud with particularity
on failure 12(b)(6) motion do dismiss for failure to state a claim on which relief
to state a could be granted
claim on o P must plead all necessary elements to survive a motion to
which dismiss and court must view evidence in light most favorable to
relief can D
be A complaint needs to specifically define which defendant is the subject of
granted? each claim and any claims that lack factual allegations to satisfy each
element will be dismissed. Plead elements of your claims with specificity to
defeat a 12(b)(6).
Anonymous Plaintiffs
Doe v. United Whether the P believes the high premium to his insurance was due to his living with another
Services Life plaintiff is man in Greenwich Village and therefore fitting the profile of a homosexual. This
Insurance required under was during the aids epidemic.
Company Rule 10(a) to use
his real name in a 10(a) generally requires parties to proceed under their real names unless there
suit. are severe privacy concerns such as being labeled as a homosexual.

Although, generally litigants must disclose their names, courts have made a few
exceptions:
To protect privacy in a very private manner. (birth control, abortion,
transsexuality, welfare rights of illegitimate children)
Danger of physical harm
Econ / Prof reasons should not permit parties to protect their identity

Pleadings Allowed; Forms of Motions and Other Papers Rule 7


Rule Category Content
7(a) Pleadings Only these pleadings are allowed:
(1) a complaint;
*Note: Only the (2) an answer to a complaint;
complaint needs to be (3) an answer to a counterclaim designated as a counterclaim;
served under Rule 4; (4) an answer to a cross claim;
(5) a third-party complaint;
others may be served (6) an answer to a third-party complaint; and
under Rule 5. (7) if the court orders one, a reply to an answer
(this is one of the options mentioned by the Iqbal dissent)
7(b) Motions and Other In general, a request for a court order must be made by motion a motion must:
Papers (A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the order; and
(C) state the relief sought
7(b)(2) Form The rules governing caption and other matters of form in pleadings apply to
motions and other papers.

General Rules of Pleadings Rule 8


Rule Category Content
8(a) Claim for Relief A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the courts jurisdiction,
unless the court already has jurisdiction and the claim needs no new
jurisdictional support
(2) a short and plain statement of the claim showing that the pleader is
entitled to relief;
(3) a demand for the relief sought, which may include relief in the alternative
of different types of relieve
8(b) Defenses; Admissions
and Denials
8(c) Affirmative Defenses
8(d) Pleading to be concise Allows P to assert as many claims as he wants regardless of their consistency. This
and direct; alternative allows P to plead alternate theories, but rule DOES NOT ALLOW P to plead
statements; inconsistent facts.
inconsistency
8(e) Construing Pleadings. Pleadings must be construed as to do justice.
Pleadings must be
construed so as to do
justice

Pleading Special Matters Rule 9


Rule Category Content
9(a) Capacity or Authority In general. Except when required to show that the court has jurisdiction, a pleading
to Sue; Legal Existence need not allege:
A. partys capacity to sue or be sued
B. a partys authority to sue or be sued in a representative capacity
C. the legal existence of an organized association of persons that is made a party
9(b) Fraud or Mistake; In alleging fraud or mistake, a party must state with particularity the circumstances
Condition of Mind constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a
persons mind may be alleged generally.
9 Conditions Precedent Will be assumed to have occurred or have been performed, but must plead with
particularity if you are denying it has occurred or been performed
9(g) Special Damages If an item of special damage is claimed, it must be specifically stated

Form of Pleadings Rule 10


Rule Category Content
10(a) Caption; Name of the Every pleading must have a caption with the courts name, a title, a file number, and
Parties a Rule 7(a) designation. The title of the complaint must name all the parties; the
title of the other pleadings, after naming the first party on each side, may refer
generally to other parties.
9(b) Paragraphs; Separate A party must state its claims or defenses in numbered paragraphs, each limited as
Statements far as practicable to a single set of circumstances. A later pleading may refer by
number to a paragraph in an earlier pleading. If doing so would promote clarify,
each claim founded on a separate transaction or occurrence and each defense
other than denial, must be stated in a separate count or defense.
9(c) Adoption by A statement in a pleading may be adopted by reference elsewhere in the same
Reference; Exhibits pleading or in any other pleading or motion. A copy of a written instrument that is
an exhibit to a pleading is a party of the pleading for all purposes.

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