TABLE OF CONTENTSSUBJECT MATTER JURISDICTION 2

DIVERSITY OF CITIZENSHIP 3 AMOUNT IN CONTROVERSY 3 REMOVAL 4

PERSONAL JURISDICTION 5 Fair play and substantial justice: 6

Specific Jurisdiction for PJ: 6 Stream of Commerce: 7

General Personal Jurisdiction 8 Tag/Transient general PJ 10

VENUE 11 ROUTES TO VENUE 11 TRANSFER OF VENUE 11 Choice of Law 12 CHOICE OF LAW IN TRANSFERS 13

PLEADING 14 Answering the Complaint -- read rule 12 15 DEFAULT 16 Service of Process: Read Rule 4 17 Joinder 18 SUPPLEMENTAL JURISDICTION 19

Section 1367 Analysis: 3 part Test 20 Rules governing joinder 21

SUMMARY JUDGMENT 21 Checklist of questions for Summary Judgment: 22

Burden of Proof During Summary Judgment 24 DISCOVERY 24

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SUBJECT MATTER JURISDICTION

● There are multiple ways to establish federal court subject matter jurisdiction .○ One is through diversity of jurisdiction.○ Another is federal question jurisdiction, i.e. the complaint must allege some

violation of Constitution or some Federal Statute.■ Well-Pleaded Complaint Rule (Relates to 28 USC 1331)- Federal Question has to be in

the complaint at the beginning of the litigation

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Holmes Test● Well pleaded complaint + Essential federal ingredient (created by).

Grable Test● Well pleaded complaint + Issue “arises out of” federal question. Embedded federal

question (does federal issue need to be discussed to resolve dispute).

1. The state law claim necessarily raises an embedded federal issue (i.e., essential federal ingredient);

2. The federal issue is substantial (i.e., important enough to make federal judicial oversight appropriate)

3. The federal issue is in actual dispute; and 4. The exercise of federal jurisdiction will not disturb “any congressionally approved

balance of federal and state judicial responsibilities.Final Test:Well pleaded complaint + created by/substantial embedded federal issue that will not disturb balance of federal/state responsibilities (28 USC § 1257 -- lists reason for US Supreme Court Appellate Jurisdiction -- can they hear it?)1257 SCOTUS can hear cases across the arrowDiversity is based on the date the complaint is filed

DIVERSITY OF CITIZENSHIP 1. If a US citizen is domiciled abroad he is not a citizen of any state so none of the provisions in the statutes cover it2. DC, Puerto Rico and territories are covered as states3. To give up domicile: present in intended state and intent to remain indefinitely

AMOUNT IN CONTROVERSY 1. Only when the judge, looking at the facts, is convinced to “legal certainty” that the claim is not worth more than 75K will they dismiss for failure to meet required amount2. If questioned by judge, party invoking diversity jurisdiction bears the burden of showing a factual basis (legal certainty) for a recovery over 75k3. a. Single plaintiff can add together separate claims against single defendant to meet requirement, even if claims are unrelated.b. Single plaintiff cannot add together amounts against separate defendants to meet $ requirementc. Separate plaintiffs cannot add together claims to meet requirement d. Cannot aggregate different legal theories pertaining to same situation and add the amounts to reach $ requirement

EXCEPTIONS to 75K+ amount requirement (allow you to satisfy over 75K re’q)a. When there are multiple plaintiffs and one meets the $ requirementb. Common undivided interests. Ex., 2 individuals with equal interest in a trust suing a defendant

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c. When there are multiple defendants and liability is being determined. Ex. 1 Plaintiff sues 3 defendants for 100K, not sure how much each is liable for.

When amount in controversy is met in one case and adding another look at 1367 for supplemental jurisdiction

REMOVAL

Plaintiff’s choice of where to file but defendant has right to remove because of local bias (Even if defendant is wrong, he can still remove)

1. Only remove to Federal Dist Ct. if valid SMJ and Fed Ct. must embrace place where action is pending 1441(a)

a. Exception: Forum defendant rule: If based on diversity, defendant CANNOT remove if D is resident of state in which he would like case removed from 1441(b).2. All defendants must agree to remove to federal court 1446(b)(2)(A)3. Must remove within 30 days once removable. If removable and not removed, chance for removal is waived 1446(b).4. 1-year cutoff for removal for diversity, unless bad faith.

REMAND1. Plaintiff has 30 days to remand or waives ability to object.2. Plaintiff can acquiesce to PJ and waive the right to remand.3. If SMJ is lacking, the case can be remanded at any time.

Example:1. A v B in a FL state court

1. A claims B violated the CRA of 1964, both are citizens of FL2. Plaintiff has made a choice to file this suit in a FL state court3. But Congress has made rules of REMOVAL and this allows the D to remove the

case to a federal court i. This case is removable b/c in most cases a D can remove the case under the authority §1441 (a) if the P could have filed the suit in Federal Court in the first place

1. Thus must go through 1331, 1332, and 1367 to determine if subject matter jurisdiction for the case exists

ii. D does not need to ask anyone’s permission to remove the case, D files a document with the state court (notice of removal), then files the same notice in the Federal Court. The moment D gives the notice of removal to the state court, the state court no longer has jurisdiction over the case, must use word “removal” no synonym

1. Under § 1332 – You have one year to remove based on diversity. You can add any diverse parties to create diversity within the 1-year period. After that time, even if diverse

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parties are added, case is not removable.

PERSONAL JURISDICTION

Personal Jurisdiction sequence:

1. Rule 4(K)(1)(a): serving a summons or filing service establishes PJ over a D who is subject to the jurisdiction of a court of “general subject matter jurisdiction”* in the state where the district court is located. Put simply, a federal court can usually exercise PJ over a D only if the courts of the state in which that federal court sits can do so.

2. Look at the state’s long arm statute: Does it go to the full extent of the 14th A Due Process Clause?

3. Then, look at the flowchart above!

4. Personal Jurisdiction is one defense under rule 12(b)(5) which must be raised in a defendants first response

PennoyerWays to get PJ in Pennoyer era:1. Personal service on Defendant within the state (presence) → PJ2. Defendant’s consent → PJ

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3. Defendant’s domicile (physical presence w/ intent to stay) → PJ4. Attachment of defendant’s property within the state at the beginning of the case → in rem (or quasi in rem) PJInternational ShoeWays to get PJ:1. Minimum contacts; and2. Traditional notions of “fair play and substantial justice”

Minimum contacts definition:1. Definitely sufficient: continuous and systematic activities and these activities give rise to the claim.2. Definitely not sufficient: causal presence of corp. agent, or isolated activities on behalf of corp. and cause of action unconnected with those activities

Fair play and substantial justice:Reasonableness factors: inconvenience to defendant; forum state’s interest; plaintiff’s interest in obtaining relief; efficient judicial resolution; location of witnesses and documents; States’ shared interest in furthering fundamental social policies

Specific Jurisdiction for PJ: A defendant is subject to specific PJ if the D has: 1) contacts with the forum 2)

the claim arises out of those contacts 3) and the exercise of PJ would be fair and reasonable

1. World Wide Volkswagen:Foreseeability alone has never been a sufficient benchmark for PJ under the Due Process clause. Contacts with the forum state are an essential requirement even if PJ would nevertheless be fair and reasonable in that forum. The person or corp. must purposefully avail themselves to the state. Purposeful availment: is satisfied when the D purposefully and voluntarily directs his activities towards the forum so that he should expect by virtue of the benefit he receives to be subject to the court’s jurisdiction based on his contacts with the forum.

2. Burger King:Did the defendant’s “ Purposeful avail” themselves? (Hanson, WWVW); ANDa. Entering into a contract with a party from forum state not necessarily enough to establish minimum contacts. (BK) b. Circumstances — negotiations, terms of the contract, contemplated future circumstances, parties actual course of dealing (BK). c. Some terms to look for: Forum Selection Clause, Choice of Law provision?Forum Selection clause: When parties agree in the contract as to which jurisdiction the

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case will be heard in.

Defamation:1. Keeton: Summary: P, citizen of NY, brought suit in NH against Hustler solely b/c statute of limitations had not expired. Monthly sales of magazines could not be to any stretch of the imagination be categorized random, isolated, or fortuitous. Therefore, it is unquestionable that NH PJ over a complaint based on those contacts would ordinarily satisfy the requirement of the Due Process clause. A state’s assertion of PJ over a nonresident must be predicated on minimum contacts between the defendant and the state. Therefore, there was PJ.

2. Calder: Summary: P brought suit against a writer and editor, both citizens of Fla., claiming they wrote a defamatory article about her. D’s had never visited Calif. in connection w/ the article and it was produced in Fla. Article was published nationwide. SCOTUS upheld jurisdiction b/c the harm was suffered in forum state (CA). Jurisdiction is based on the ―effects of their Florida conduct in California. The D’s should anticipate being haled into court there. Actions from outside the state that has foreseeable tortious effects inside the state can be a basis for asserting PJ.

Stream of Commerce:

1. Asahi: D put goods into the stream of commerce with the knowledge that they were regularly sold in the forum state. D benefited economically from such acts. However, there was no additional conduct such as designing the product for the market in the forum state, advertising in the forum state, establishing channels for providing regular advice in the forum state, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum state. Therefore, No specific PJ.

No precedential value. Argue the opinions.

SOC pertains to parts in wholesale manuf. more so than other actionsJustice O’Connor – DIRECTED STREAM OF COMMERCE (SOC)

· Placing into stream is not enough; you must purposefully or intentionally want it to go there.· The “substantial connection” between the defendant and the forum state necessary fora finding of minimum contacts must come by an action of the defendant purposefullydirected toward the forum state.

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Justice Brennan – AWARENESS STREAM OF COMMERCE· Knowing that your product may end up in a forum state is enough to assert jurisdictionin that state.

Justice Stevens - MIDDLE GROUND MATHWhat is the volume, value, character, regular flow of products?

Additionally:Need to look at the 5 fair play factors (listed above pg. 5)

2. McIntyreSCOTUS granted cert and reversed. No PJ. The SCOTUS did not resolve the stream of commerce issue.Four justices endorsed O'Connor's view in Asahi - that the D must direct some kind of activity to the forum. Hoping your product will sell in NJ is not enough. No evidence that McIntyre directed activity to NJ.Breyer: his opinion mirrored Steven’s in AsahiO’Connor: the defendant must direct some sort of activities toward the forum state

Internet:

Zippo1. If the defendant conducted activities through an interactive website, it could be subject to specific PJ in a distant state. For example, if the defendant sold goods through an interactive website, the defendant could be subject to PJ in a state where someone purchased the goods. 2. At the other end of the spectrum, there are passive websites that convey information but have little interaction with website visitors. Those websites would not subject the defendant to PJ even if many people from the state visit the website. 3. Some interactivity where visitors exchange information. But, the interactivity falls short of an actual purchase. In those cases, the court suggested a close examination of the nature and extent of the site’s interactivity.

Zippo Sliding scale test:

Passive website←------some interactive elements------>repeated contacts or interactive insufficient examine level of activity and sufficient nature of exchanges

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General Personal Jurisdiction

PPB/”At Home” (continuous and systematic)?

1. HelicopterosSummary: SCOTUS ruled that purchases and related trips standing alone, are not a sufficient basis for a forum state’s assertion of general PJ. Even if these purchases happened at regular intervals, they are not enough if the cause of action is not related to these transactions. The brief presence of the D’s employees in Texas for the purpose of attending the training sessions did not meet this requirement.

2. Perkins Carrying on a continuous and systematic but limited part of its general business is reason enough for general PJ.

3. GoodyearMay a consumer sue a foreign manufacturer in a U.S. court when the manufacturer’s only connection with the United States is that another company sells its products in this country? Accident happened in France and killed NC teenagers. Goodyear had foreign subsidiary in Turkey. Plaintiff tried to sue Goodyear and subsidiary in Fed Court in North Carolina. Was there general PJ? Goodyear USA acquiesced general PJ, but Goodyear’s subsidiary in Turkey said there was no general PJ. Was there general PJ? No. The Supreme Court decision by Ginsburg, "a connection so limited between the forum and the foreign corporation, we hold, is an inadequate basis for the exercise of general [PJ] jurisdiction," Ginsburg wrote. "Such a connection does not establish the 'continuous and systematic' affiliation necessary to empower North Carolina courts to entertain claims unrelated to the foreign corporation's contacts with the State." SCOTUS took the International Shoe approach (fair play and substantial justice).

In rem/ Quasi in rem

In personam: against the person

In rem: “against the property” -- to determine the ownership of property as to the whole world

Quasi in rem:Type 1: to determine the ownership of property as between only the litigants.

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Type 2: attaching property to confer upon the court jurisdiction over proceedings not regarding the ownership of the property; limited to the extent of the property

2a. Related to property2b. Completely unrelated to the property

Schaffer:SCOTUS held was no general PJ.The same test used for in personam jurisdiction must be used for in rem or QIR jurisdiction, which is the minimum contacts test of International Shoe. Powell and Stevens agreed with majority in outcome, but they did not agree that all ownership of property must pass through the International Shoe test. They believe that real estate should always give jurisdiction and would not need to be run through International Shoe. When attaching property that is not real estate (type 2 b in rem) you look at international shoe standards.

Tag/Transient general PJ

Burnham:The question is whether Schaffer’s holding that “all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe” should be applied to transient presence for general PJ.

Scalia and 3 other justices concluded that Schaffer’s opinion really meant to say that assertions of in personam, quasi in rem, and in rem had to meet International Shoe standards, however International Shoe should not be applied to other basis for general personal jurisdiction such as transient presence.

Brennan and 3 others thought Schaffer meant what it said “all” assertions of PJ including transient presence had to be analyzed using the International Shoe standard.

Stevens thought there was no need to decide between the two separate opinions.

VENUE READ THE STATUTE

· Venue refers to the particular court within a court system where a plaintiff can file a lawsuit. Venue can be good even when PJ and SMJ is bad but you have to have all 3 to hear a caseAdditional info:

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- Venue does not focus solely on defendant’s interests- Constitution does not restrict plaintiff’s choice of venues- Often requires an examination of plaintiff’s, witnesses’ and court’s connections to the case- Absent consent or waiver, a court cannot hear a case unless it is brought in a proper venue- If case is removed, venue must be to where federal district that encompassed state’s venue. Ex: If case is filed in state court in Tampa, it goes to Middle District of Florida (can’t go to Southern or Northern).

ROUTES TO VENUE 28 U.S.C. §1391PRIMARY: (b)(1):if all defendants are from the same state, pick a district where one resides; or(b)(2): district in which substantial part of events occurred, or substantial part of property is; orFALLBACK:(b)(3): if (b)(1 or 2) doesn’t work, any district where defendant is subject to PJ works

Corporate and Noncorporate Entities (c)(2) Corporations and non-corporate entities: reside in every federal district which its contacts are sufficient enough to subject it to personal jurisdiction at the time the action is commenced.

Venue for defendants: If there is more than one district in the state, venue is proper in the district in any district in which D’s contacts would be sufficient to subject it to PJ if that district were a separate state.

Aliens (c)(3) “may be sued in any judicial district, and joinder of such a D shall be disregarded in determining where the action may be brought with respect to other D’s”

TRANSFER OF VENUE Section 1406: Where transferor court was NOT a proper venue. - Court “shall dismiss, or if it be in the interest of justice, transfer” - Transferee court should apply the choice of law rules of the transferee district. - To district “in which it could have been brought.”

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Cases filed in the wrong venue

Cases filed in the correct venue

Motions to transfer 28 U.S.C. § 1406 1. 28 U.S.C. § 1404 3.

Motions to dismiss 28 U.S.C. § 1406 and Federal Rule 12(b)(3) 2.

Forum non conveniens (a common law doctrine) 4.

1. § 1406: Court shall dismiss, or if in the interest of justice, transfer (IF the court in which the claim is being transferred to is in the same system i.e federal to federal).2. If case is filed in wrong venue and court cannot transfer

3. §1404: Where transferor court was a proper venue. - Transfer in the discretion of the court. - Consider: (1) convenience of parties; (2) convenience of witnesses; and (3) interest of justice. - Transferee court should apply the choice of law rules of the transferor district, but only if transferor court also had PJ. - To district “where it might have been brought” (both venue and PJ) or to district “to which all parties have consented.”

4. When a court has venue, but another venue is more convenient. A power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case when they cannot transfer the case

- Forum Non Coveniens:In Piper provides that unfavorable changes in the law should not ordinarily be given substantial weight in the analysis.

- Reasons why a court may consider unfavorable changes in law from the new forum would be 1) make a remedy for the P clearly inadequate or 2) a remedy that would actually be no remedy at all.

Choice of Law

As each state has laws pertaining to contracts, states have laws relating to choice of law. One state’s Choice of Law rules may say “We apply contract law of where contract was entered” while another says “We apply contract law where it was breached.”Federal Court applies choice of law rules in state where they sit, which will point to a substantive

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law.

Erie RR v Tomkins (1938)· Judge Brandeis delivered the verdict stating that the idea of federal judges disregarding state common law is not valid. He states, “except in matters governed by the Federal Constitution or acts of Congress, the law to be applied in any case is the law of the state. [W]hether declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern. o Overturns Swift v. Tyson ruling Following Erie The Supreme Court subsequently adopted a more flexible view of the federal trial judge’s role in making “Erie Guesses.”· The federal court should follow the rulings of the highest state courts· The federal court, in determining the law of the state (if undecided by the highest state court), should determine how the case would come out if it were decided today by the state supreme court. · If this “guess” is made by the federal court judge, it is binding only on the parties in the suit. The state courts are not bound to follow the federal ruling.

CHOICE OF LAW IN TRANSFERS

Transfer § 1406 (Venue was not proper)

Transfer § 1404 (Venue was proper)

First court has PJ over D transferee court’s choice of law rules 1.

transferor court’s choice of law rules 3.

First court has no PJ over D transferee court’s choice of law rules 2.

transferee court’s choice of law rules 4.

1.2. ???3. Uses transferor’s choice of law to prevent forum shopping4. ???

PLEADING Rule 7: counterclaims and crossclaims

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Rule 8: involves pleadings: Rule 8(a)(2): a 1. short and 2. plain statement of the claim 3. showing that the pleader is entitled to relief; and 8(a)(3) a demand for the relief sought

-Does not require specific facts in sufficient detail, but after SCOTUS decisions in Twombly and Iqbal, it’s a good idea to do so

Rule 9: special exceptions (heightened standards) to pleading standards such as fraud or mistake or special damages

A complaint in federal court must contain: a SMJ statement, short and plain statement claiming entitlement to relief, and a prayer for relief - Heightened pleading is required only for matters in Rule 9(b) or by statute. Courts cannot require heightened pleadings on their own

Twombly-Iqbal standard for pleadings: Rule 8(a)(2)1. Pleading distinguishes between factual allegations and legal conclusions. Legal conclusions can provide the framework, but they are not entitled to an assumption of truth.2. Assume the truth of factual allegations, and then determine using judicial experience and common sense whether they plausibly (the reasonable possibility of truth) give rise to an entitlement to relief.

.0 impossible----conceivable----plausible?-----probable .5-------------------------------certain 1.0

Rule 11: sets out both the standard for care and candor in pleading (and in the filing of other papers before the court) and the sanctions for violations of the standards.

- Objective standard that makes no allowance for the particular circumstances of the individual lawyer- Safe harbor provision: After giving notice of conduct that may fall under Rule 11, the party who alleges poor conduct must serve motion under Rule 5 to opposing party but must not be filed to court. Challenged claim or defense can be corrected within 21 days or service or whatever time the court sets.

- the Safe Harbor rule allows freedom but promotes regulation amongst parties- The court cannot impose monetary sanction for violating 11(b)(2)

Answering the Complaint -- read rule 12 Defense’s options in response1. Nothing — default P asks clerk to enter default plaintiff then moves for default judgment and court looks at Rule 55(c)

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2. Answer — (responsive pleading) Rule 8(b) 1. Admit allegations 2. Deny allegations — rule 11: deny for lack of info or based on evidence or

reasonably based on belief 3. State that you have a lack knowledge or information sufficient to form a belief about the truth of an allegation (works as a denial).

3. Rule 12 motion: If motion to dismiss is successful, court can dismiss without prejudice and P can file a new pleading. If court dismisses with prejudice, P cannot refile · If pre-answer fails, an answer must be filed within 14 days after notice of the court’s action on the motion Rule 12(a)(4)(A)· Defendant can then assert any leftover defenses that party has not waived by omitting in pre-answer motion· Next, it must admit or deny the factual allegations of the complaint· Third, even if defendant admits facts, it can assert affirmative defenses· Fourth, defendant can present counterclaims· Finally, it may incorporate all these options in its answer Defendant can make a general denial, but a general denial denies all claims. General denials are rarely used for this reason. Affirmative defenses: must admit the plaintiff’s claims and state why “even if the claims are true, the plaintiff must still lose” In FIRST response by defendant, the defendant must include Rule 12(b) defenses or else D cannot raise those defenses at a later time. These defenses include: PJ, improper venue, insufficient process, and insufficient service of process.

Rule 15: amended and supplemental pleadingsBEFORE TRIAL:As a “matter of course” under Rule 15(a)(1): • amend pleading only one time • Three situations:

1. within 21 days after serving it; or2. if it is a pleading to which responsive pleading is required (see FRCP 7(a)), then within 21 days after service of responsive pleading; or 3. if it is a pleading to which responsive pleading is required, and opponent files Rule 12(b), (e), or (f) motion, within 21 days after service of such motion

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Under Rule 15(a)(2): • With opponent’s written consent, or • With leave of court, freely given “when justice so requires.”

DURING OR AFTER TRIAL:If Opponent Objects, under 15(b)(1):

• Court may permit amendment of pleading• Court should freely permit when doing so aids in presenting merits and the objecting opponent fails to show prejudice

If Opponent Expressly or Impliedly Consents, under 15(b)(2): • Must be treated as if raised in the pleadings • Party may move to amend pleadings to conform to the evidence, but failure to amend does not affect the result of the trial

DEFAULT Rule 55· The court enters a default. The plaintiff must then apply to the court for a default judgment.· Default is just a one-line entry· Court holds a hearing to determine what damages might be.o You have to prove to the court your damages; the court doesn’t just award what you ask for. · When someone defaults, they merely admit the claims are true. This does not mean the plaintiff automatically wins.· Default does not equal automatic default judgment

Rule 55. Only need to notify party of default judgment within 7 days if they or a representative have made an appearance.

Reasons to default:● No assets to give up● The lawsuit was a bluff -- plaintiff won’t be awarded relief● Improper Service (better be sure of that shit)● No jurisdiction

Rule 55(b)(2): When the court enters a default judgment against a party that has appeared (or by a representative), the party against whom the default judgment is being sought must be served with written notice of application of judgment at least seven days before the hearing.

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Reasons a court may set aside a default judgment:1. 55(c): for good cause; and2. under Rule 60 (b)

Rule 60:60(b) explains in what circumstances default should be relieved:

1. Mistake, inadvertence, surprise or excusable neglect (Court must decide if default was wilful, would prejudice the plaintiff and if defendant has meritorious defenses)

2. newly discovered evidence that could not have been discovered in time for a new trial

3. fraud, misrepresentation4. Void judgment5. Judgment is satisfied or released6. Any other reason that justifies relief

60(c) states motions under rule 60(b) must be made in reasonable amount of time. For (1), (2) and (3), it must be within a year of entry of default.

Default Judgment:- A default judgment is usually made after a hearing on the merit by the judge- The court cannot enter a default judgment unless it finds, as a matter of law, that the complaint states a claim for relief

Service of Process: Read Rule 4

Service is effective upon filing the waiver with the court, along with the complaint, not when the D signs it. [NOTE: Statute of limitations can be impacted if D doesn't return the waiver in time -- it depends on whether the clock starts when the complaint is filed or service is made… So if it’s service, you may not want a waiver.]D have a duty to avoid cost of service, so if a P wants to save money, P must:1. Ask the D to waive formal service by sending: 2 copies of waiver, complaint and a prepaid envelope for returning.2. D must pay all costs of formal service (atty's fees for any motion to collect costs) if D does not waive.3. D has 30 days to return the waiver and can be sent via first-class mail - 4(d)(1)(F)4. D has 60 days to answer the complaint from the date it was sent from P to D- almost 3 times as long as the normal 21 days; (If service is waived)

If you serve someone out of state, you can look at either state’s service requirements to comply with to rules

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If the plaintiff shows good cause for the failure to make a service, the court must grant an extension of the time to make service “for an appropriate period”

· Rule 4(m) provides that the court must dismiss an action if service is not made on the defendant within 120 days after filing, or order service to be made within a specified time.

Two pieces that must be given to defendant· Complaint· Summons

Service of process’ two purposes:· formally asserts the court’s authority over defendant· informs D of the case so D can prepare to defend it

Rules for service are found in FRCP 4 (335 in CP book)· Rules for service of process of the state where the federal court sits or of the state in which service of process is made. FRCP 4(e)(1)

Waiver of service process:· Defendant is responsible for the fees associated with service of process, if they deny waiver· Defendant can waive service to avoid the fee and extend the amount of time to file their answer from 21 to 60 days

Service of a Corporation and other entities- Can serve a managing agent or an appointed officer who receives summons. Can also look at 4(e)(1) under individuals and apply the service requirements of the state in which the court sits or the requirements in which the defendant is located

Joinder Questions to answer when assessing joinder 1. Is joinder of this claim (against this party) permitted by the FRCP joinder rules? 2. Is there personal jurisdiction over the defendant for this claim? 3. Is this supported by subject matter jurisdiction?· Federal Q?; or· Diversity?; or

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· If not… then Supplemental Jurisdiction?

Rules for Joinder:Rule 13: Counterclaims and Crossclaims Rule 14: Joining 3rd partiesRule 18: Joinder of Claims (1P and 1D. Any claims between parties can be heard)Rule 19: Joinder that is requiredRule 20: Joinder that is permitted (but not required)

Claim preclusion: bars a party who has sued a D on a claim from suing that D again on the same claim if the first case was decided after a full opportunity to reach the merits. can’t take two bites at the same apple. Cannot litigate additional case if the first and second cases:1. involve the same claim; and2. the parties of the two cases are identical and in the same configuration; and3. the first case ended in a valid, final judgment on the merits.

Issue preclusion: precludes parties from relitigating issues that were:1) litigated; and2) decided; and3) necessary to the judgment in a prior action between the two parties

SUPPLEMENTAL JURISDICTION

1. If the original claim is a federal issue or a diversity case, the federal court can hear the state claims (ones in which there is no diversity or federal issue) if the state claim is satisfied under §1367

Section 1367 Analysis: 3 part Test 1. Does §1367(a) give supplemental jurisdiction? ((a) gives Supp J)

Common nucleus of facts between original case and 2nd case? (Gibbs test). If no → no SJ. Stop here. If yes → go to q 2

2. Does §1367(b) take it away? If yes to all 3 then (b) takes it awaya. Is original jurisdiction founded solely on diversity? (§1332) If yes → go to b. If

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no→ go to q 3b. Is it a claim by original PLAINTIFF against person made party under Rule 14, 19, 20, 24? -Or- Is it a claim by a person to be joined as plaintiff under Rule 19 or intervene as plaintiff under Rule 24 -- Don’t worry about the second half of this question? If yes → go to c. If no → go to q 3c. Would supplemental jurisdiction be inconsistent with complete diversity requirement?

3. Should the court exercise discretion to decline under §1367(c)?§1367(c): Federal court may decline to exercise supplemental jurisdiction because:

a. Claim raises novel or complex issue of state lawb. State claim substantially predominatesc.The court has dismissed all claims in which it had original jurisdictiond. In “exceptional circumstances,” there are “other compelling reasons” for declining

Rules governing joinder

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*For #6, 14 should actually be 14(a)(1)

SUMMARY JUDGMENT Device to dispose of a claim or defense on the merits without trial.

Summary judgment is only available when there is no GDMF and the movant shows that on the undisputed facts, he is entitled to judgment as a matter of law.

The court is the one to ascertain as to whether there is a GDMF. Court does not weigh evidence or decide disputes, and must resolve doubts in favor of the non-moving party.

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Rule 56(a)Moving party must show BOTH:

1. There is no genuine dispute as to any material fact; and2. Moving party is entitled to judgment as a matter of law

Material Fact: Facts on which the trial can turn, important as to the result of the trial. Facts that matter

Checklist of questions for Summary Judgment: 1. What is the rule of substantive law applicable to the motion?2. Which facts matter (are material)?3. What is the proper record for summary judgment? What evidence may the court

consider in ruling for Motion for Summary Judgment? -”Rule 56(c)(1)(A) lists materials that may be considered in deciding SJ. But all discovery materials do not automatically qualify for consideration on SJ; they must be admissible under the rules of evidence before they are properly considered as part of the record for SJ.”

4. Has the moving party met its burden of showing there is no GDMF (genuine dispute of material fact) in that record AND that movant entitled to judgment under the applicable rule of law?

5. If the movant has met that burden, has the non-movant met its burden of showing specific facts in that record that create a GDMF under the applicable rule of law?

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Object for plaintiff is to get it above (or as close to) .5 to avoid summary judgment against, Defendant want to get it below .5 for it to win summary judgment.

The burden of proof at summary judgment follows the burden of proof set for that trial. Ex. if the trial calls for preponderance of the evidence, then the SJ standard will be the same. If trial calls for clear and convincing evidence, SJ will depend on if that standard is met.

Motion Seeking Decision as a Matter of Law

12(b)(6) 12(c) 56 50(a)(1) after P’s case

50(a)(1) after P’s & D’s case

facts in complaint

facts in complaint and answer (after pleadings)

undisputed facts in movant’s and non-movant’s materials (full or partial SJ)

facts in record after P’s case

facts in full trial record

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Burden of Proof During Summary Judgment

If moving party does have burden of proof on a claim or defense at trial, movant must present undisputed facts supporting each and every element of claim or defense to achieve summary judgment. This is called a proof-of-the-elements motion.

When the moving party does not have the burden of proof at trial -- typically the D -- this is called a disproof-of-an-element motion for summary judgment. This is when they present undisputed facts negating, proving the nonexistence of, an essential element of the non-moving party’s claim.

The absence-of-evidence motion for summary judgment is when the moving party does not have the burden of proof at trial they could demonstrate that there is no evidence whatsoever in the record by which the non-moving party could establish the existence of an essential element of its claim.

DISCOVERY

Attorney-Client Privilege1. A communication2. Between persons covered by the privilege (attorneys and clients)3. Made in confidence4. For the purpose of obtaining or providing legal assistance for the client5. Privilege can be waived by disclosure to third parties

Work Product Doctrine -- Rule 26(b)(3)1. Prepared in anticipation of litigations2. Prepared by or for a party or its representatives3. Ordinary Work Product may be discoverable upon showing (facts and such, but

not stuff mentioned in 4), and only if:a. “Substantial need” for materials to prepare the case; orb. cannot otherwise obtain their substantial equivalent without “unique

hardship” (like somebody dies)4. Mental impressions, conclusions, opinions, or legal theories generally not

discoverable.

Rule 30: Depositions by Oral Examination: Limited to 10 depositions per party unless agreed upon or permission given by court.

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● Testimony is taken under oath as if it were a trial, and court will only receive a transcript (so everything must be said verbally)

● Strategy: Start with questions you know the answers to before ones you don’t.● Defending lawyer can

a. make objectionsb. object to irrelevant questions (but don’t have to)c. Can instruct witness not to answer if question calls for privileged

information, can enforce court order about what questions can’t be asked, or to stop deposition via court order

d. May ask opposing attorney to delay questions until end● 30(b)(6) Non-human entities: must disclose topics of deposition so representative

human can be educated to bind company to deposition.

Rule 33: Deals with interrogatories and limits number of them to 25 as consistent under Rule 26(b)(2), unless the parties specifically agree to more.

● Usually used to get very specific information● Not too useful for broad questions● Can use them to find out how documents are maintained (paper or electronic)● Responding party has 30 days to respond after served with interrogatories.

Shorter time may be stipulated under Rule 29 or by court.● Objections must be stated with specificity. Any ground not stated in a timely

objection is waived unless the court excuses it.● The person who answers the interrogatories must sign them.

Rule 34: Deals with document requests and electronically stored information within the scope of Rule 26(b).

● Basically, is it client-attorney privilege or work product?

Rule 36: Requests for admission -- A party may serve on any other party in written form to admit, for purposes of pending action, the truth of any matters within scope of Rule 26(b)(1) relating to:

A. Facts, the application of law to fact or opinions about eitherB. the genuineness of any described documents

Basically…. Useful for taking basic contentions out, but probably not used often

Rule 37: Failure to make disclosures or cooperate in discoveryA. Party must respond or object to relevant questions, document requests,

depositions, etc. If not, the court may issue sanctionsB. Court can sanction party for not complying with court order compelling discovery

or disclosure. Sanctions may limit evidence (which could lead to a case to be lost) or hold a party in contempt

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Rules Enabling Act:

When a federal rule comes in conflict with a state rule, the federal rule applies if it is granted the ability to do so under the REA. The REA states that the FRCP can supercede the state rules only if the federal rule covers an issue that congress has the constitutional power to regulate. If the rule is not regulated by some federal power, the state rule will govern.

Statute of Limitations:

Rule 15 relates to the statute of limitations and “relating back” to the original claim. Look to the rule for your answer

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