Civil Procedure class notes Ruescher 2014

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  • 5/26/2018 Civil Procedure class notes Ruescher 2014

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    Civ ProRuescher

    Class notesspring 2014

    1/6/14

    What is civil procedure?

    - This classFederal civil procedure

    - Rules of the game of civil litigation

    How do you start a lawsuit?

    - File a complaint

    -

    Serve the summons and complaint

    o According to the rule of federal procedure

    First three topics

    - Personal jurisdiction

    o Power of a court to require/make a defendant participate in a lawsuit

    Ex.You fall in Kansas, want to sue the supermarket and file for the claim in NY

    o Basic concept is based on fairness should the defendant have to travel all this way?

    o Federalism

    Idea of state sovereignty behind federalismNot fair to make someone from one

    state to appear in court in another state

    That state doesnt have power over person

    Two court systemsState and Federal

    One court system for each state

    One whole federal court system

    o 94 district courts

    o United states courts of appeals intermediate court

    13 courts

    12 are divided geographically

    1 for specialized matters

    o Supreme Court

    In the federal rules, federal district courts voluntarily agree to be subject to

    the same restrictions on personal jurisdiction of the state in which that

    court is sitting

    - Subject matter jurisdiction

    o Refers to the typeof civil case a federal court can hear / adjudicate

    o Any civil case can be heard in state court

    http://lawschool.westlaw.com/twen/sendcourseemail.asp?task=courseemail&courseid=168107&emailtype=1http://lawschool.westlaw.com/twen/sendcourseemail.asp?task=courseemail&courseid=168107&emailtype=1http://lawschool.westlaw.com/twen/sendcourseemail.asp?task=courseemail&courseid=168107&emailtype=1
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    o Federal courtLimited SMJ

    Only two types (for now)

    Diversity of citizenship

    o Between parties from two different states

    o Amt of $$$ exceeds $75,000

    Federal question

    o A case where a plaintiff is enforcing a right granted to him under

    the US constitution or a federal statute

    o Section 1983 says you can sue the state for violating your

    constitutional right

    o Common law claim

    Based on law made by judges

    o Statutory claim

    Based on a law passed by legislature

    Federal claimsAlways statutory (for this class)

    Either statutory or constitutional

    - Venue

    o Limits you to which district court you can bring your action in

    o District Court is determined by Personal jurisdiction over defendant and proper under the

    rules of venue

    - Pennoyer v. Neff

    o First case that sets up the law for personal jurisdiction (yr. 1878)

    o Citations U.S.US reporter (official)

    L.Ed.Lawyers edition (unofficial)

    o Majority of supreme court5 people

    o Facts

    MDue itchell sues Neff for $253.14 for legal services

    Mitchell sued him in Oregon state court

    Neff is apparently in California and owns property in Oregon

    Mitchell publishes the notice of suit in Pacific Christian Advocate

    Neff doesnt submit an answerCourt enters default judgment

    Service is valid if within the state

    Cant find the person and isnt a resident of the state

    attachedtaking control of property

    o Real propertyLien

    Only good for value of property (if property value is less

    than liens, tough luck)

    o Personal PropertySherriff seizes it

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    Mitchell gets property, sells to Pennoyer

    Neff trys to evict Pennoyer

    o Issue: Did the court properly exercised jurisdiction b/c there was property in the state?

    In rem jurisdictionoutside resident owns property in that state

    o HoldingNo.

    o Reasoning

    Mitchell did not attach the property at the beginning of the lawsuit

    He did it after he received the default judgment No bueno

    o Rationale

    The attachment of the property gives the court the power to decide the case

    B/c the state court has no other power over the outside resident

    o Pg 27 last paragraphgeneral gist of case

    o Court concludes that it violates the constitution to allow Oregon to enforce this judgment in

    this case

    Due process clause of the 14thamendment of the constitution

    Person is being told what to do by a state who doesnt have power over

    them

    First time its a considered a constitutional issue

    - Personal jurisdiction

    o Ability of a state court to pull somebody into a court

    State sovereignty or state power

    Pennoyer makes it so that one state cannot exert more power over another state

    o

    o States can only exercise in rem jurisdiction over a persons property if the property is

    located in that state. If the property is in that state, it must be attached before the law suit.

    The defendant must be served by publication. Judgment is limited and can only be enforced

    to the extent of property itself

    - When things go right

    o Case where state has personal jurisdiction over defendant

    Served or hes a resident, etc.

    Served with summons and complaint in NY

    o Proceeds and gets a judgment

    o Once plaintiff win, has to enforce the judgment Levies on propertyBank accounts, real property, personal property, etc.

    Can enforce judgments in other states

    Full faith and credit clause in constitution

    o Means states must enforce judgments made in other states

    - Another scenario

    o Plaintiff wants to sue out of state resident

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    o Attached to properties and commences law suitgets judgment

    Can only receive money for property in that state

    o Rationale is that you owned got judgment on defendant to the capacity of his ownership in

    that state

    - Pg 30, note 5

    o A) Not valid, Oregon has no power/jurisdiction over California person

    o B) Arizona state court can hear any case, so its okay. Arizona has jurisdiction because he

    was within the borders of the state.

    o C) No

    - Pg 31, note 8

    o 14thamendment is the basis for challenges to state court jurisdiction

    o Judgment entered without jurisdiction, violates due processjudgment is not entitled to

    full faith and credit

    - Rule 4 of federal procedure (4K1A)

    o Territorial limits and effects from service

    o Every federal court will follow the same personal jurisdiction rules as the state court it

    resides in

    o Courts of general subject matter jurisdiction has the power to hear the most cases

    - How do we figure if the federal court violates the federal rules?

    o Check to see if the state court can do it

    1/8/14

    Good supplements to have

    - Freers commentary on civ pro

    - Crunchtime for civil procedure

    - Glannon on civil procedure

    - Questions and answers on civil procedure

    Pennoyer tells us that a state court cannot exercise personal jurisdiction over a defendant unless it has a

    legitimate basis to do so.

    - 2 ways to exercise authority/jurisdiction/control

    o Person

    Presenceof defendant in the forum

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    Defendant in the state when served (within the boundaries)

    Appearanceof defendant

    When the defendant voluntarily submits to the authority of the court and

    agrees to participate in the lawsuit

    Domicile(residence)

    If our defendant is a resident of the state then the court has authority over

    him

    o Property

    Three types of property suits

    True in rem

    o Condemnation proceedingeminent domain

    o All about the property

    Quasi in rem 1foreclosure proceeding

    o Owner of property isnt paying his mortgage

    o Bank is trying to get the property backtrying to close its liens

    o All about the property

    Quasi in rem 2Do not adjudicate rights to the property

    o Pennoyer v. neff

    Attach the property to give court the power to decide the

    lawsuit (had to be attached before the proceeding)

    Domicile tangent

    - Person has to be personally served- What if person is a resident of NY but always living and traveling in NJ?

    o Under pennoyer, a state has no real authority outside of its borders

    o Courts change this view in later cases

    Pennoyer was also a constitutional issue

    - Personal jurisdiction always has two common issues for the defendant

    o Fairness to the defendant

    o Federalism Violating a states sovereignty?

    Violates the due process clause of the 14thamendment?

    Only applies to states

    - When a state does have the right/jurisdiction over D and P gets a judgment

    o Judgment is enforceable by the P in ANY state

    Made constitutionally available by the full faith and credit clause of the constitution

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    Long arm statutes

    - Legislature tells the court authority/power it has over an out of state defendant

    o Legislature is sensitive in creating long arm statute to not violate constitution/sovereignty

    For NYNYCPLR ss 302

    302. Personal jurisdiction by acts of non-domiciliaries

    (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts

    enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or

    his executor or administrator, who in person or through an agent:

    1. transacts any business within the state or contracts anywhere to supply goods or services in the

    state; oro NJ farmer brings tomatoes to NY and its rotten, you can sue him. If you are in NJ and farmer

    kills your dog?Subject to Jersey law. Cant sue person in NY for every reason

    2. commits a tortious act within the state, except as to a cause of action for defamation of character

    arising from the act; or

    3. commits a tortious act without the state causing injury to person or property within the state,

    except as to a cause of action for defamation of character arising from the act, if he

    o Plumes (nuisance), machine made negligently from Ohio and injury is in NY

    (i) regularly does or solicits business, or engages in any other persistent course of conduct, or

    derives substantial revenue from goods used or consumed or services rendered, in the state, or

    (ii) expects or should reasonably expect the act to have consequences in the state and derives

    substantial revenue from interstate or international commerce; or

    4. owns, uses or possesses any real property situated within the state.

    HYPOdiversity actionPNY, DNJ and amt is over $75K, P wants to sue in the federal southern

    district of NY

    STEPS for fed court

    1. Federal court has same jurisdiction as that state court

    a. Federal rule frcp 4k1a

    2. Consult the long arm statute of NY

    a. CLPR NY ss 302

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    3. Determine whether the statutes violates the due process clause of the 14 thamendment of the

    constitution of the USA

    Personal jurisdiction in federal courts recap

    Question: Under 4K1A, the federal courts agree to be bound by the personal jurisdiction rules of the

    states in which they are located. Are the federal courts constitutionally required to do so?

    NO, they can hear any federal case

    As life in America started to modernize, transportation and technology advanced, and personal

    jurisdiction according to pennoyer is starting to be amended

    Hess v. Pawloski

    - Pnot a resident of Massachusetts, but Pennsylvania

    - Car accident occurred between P and D

    - No personal service and no property attached was made to P

    - special appearance is when defendant comes to court to contest personal jurisdiction

    o When you appear specially

    You cannot be served

    You are not agreeing to the lawsuit

    You are only there for a limit circumstance

    No special appearance in the federal rules today

    Modern methodmotion to dismiss for lack of jurisdiction

    - Court buys into the concept of the Massachusetts statute which allows Massachusetts to serve an

    agent of the state who then sends notice to the out of state resident

    - Does Hess violate Pennoyer?

    o No, because the court says P is considered served within the forum of the state by having

    an agent served

    o Bullshit way the court gives lip service to the court but changes the law

    International Shoe v. Washington

    - Does not change or replace Pennoyer, but expands

    o Gives new criteria of when to bring in people

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    - International claims Washington doesnt have jurisdictionover them bc internationals business is

    not in Washington

    - Issue: Can Washington exercise jurisdiction of an out of state corporation to pay for unemployment

    taxes

    - F.O.Bfree on board shipping. International shoe is liable for shipping item only to the border of

    the state it is based in

    - In personampersonal jurisdiction

    - Capias ad respondendumthat you may capture [him] in order for him to reply

    - If he be not present within the territory of the forum, he has certain minimum contacts with it

    such that the maintenance of the suit does not offend traditional notions of fair play and

    substantial justice.

    - Pg 39Where international shoebox comes from

    - International shoe box looks at two things

    o Looks at degree or amount of activity in that forum

    o If claim is related to activity being done in forumo Factors / scenarios

    No brainer presencecorporation activities that are systematic and

    continuous and claim is related to that activity, then you have jurisdiction over

    them

    No BrainerCant sue for Casual/limited/isolated conduct and if claim is not

    related (opposite end of spectrum)

    Undue burden on defendantFairness

    The gray areaclaim is unrelated to the activity in the forum but activity is

    continuous and systematic

    If activity is so substantialyou can sueo Ex.resident of cali slips on banana in Roosevelt field in Apple

    Store. Can prob sue apple in cali if they want

    o Corporation that can be sued in that state for almost anything

    would be considered general jurisdiction

    Very little activity but the claim is related to that activity

    Can sue, sometimes

    - International Shoe Box

    Systematic and continuous

    activity PLUSclaim relates to activity YES ALWAYS

    Isolated or casual activity

    PLUSclaim related to activity SOMETIMES

    Systematic and continuous

    PLUSclaim unrelated to activity

    YesIf activity is

    substantial

    NOIf not substantial

    Isolated or casual activity

    PLUSclaim unrelated to activity

    NO ALWAYS

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    Notes

    4. International shoe test

    a. Isolated plus relatedSOMETIMES (Hess v. Pawloski)

    b. NoState courts can hear ANY claim, but the activity in Washington is not substantial

    c. YesSubstantial systematic and continuous activityd. NoWe dont know if there is systematic and continuous activity

    e. YesSystematic and continuous and its related

    f. NoInternational has no dealings in Oregon

    Make sure to look at note on Mc Gee, Hanson, and Gray on page 44

    1/13/14

    International shoeboxis it systematic? Is it continuous? Is it substantial?Factors to determine if

    there is personal jurisdiction

    Purposeful availment

    - Advertising?

    - Ship products?

    - Any dealings or connection at all?

    Did the defendant purposefully avail itself of the benefits of the forum?

    Pg 44note on mcgee, hanson and gray

    - Mcgeetexas insurance company has isolated incident in California but the activity is related

    o Harder case than international shoe bc there is was nobody from Texas that were actually

    there

    TrustSeparate entity which separates your money from you

    - Interest goes to person, rest of the money goes to beneficiary

    Key to an Ahighlight all the facts you talked about in your exam, and look at the ones you

    dont use and ask why did the professor put that there. Its the facts stupid!

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    - Hanson different from McGee

    o Beneficiaries want to bring the bank to Florida

    o Different bc the trustee moved to Florida NOT the bank

    o Court holds theres no personal jurisdiction over the Bank, no purposeful availment

    The unilateral activity of Donna cannot require the contact of forum in the state

    Bank did not reach out to Florida

    Once you purposefully avail yourself of the privilege of the forum of that state, you

    are now invoke the benefits and protections of that laws

    - Gray

    o Stream of commercethe flow of goods

    Component manuProduct manuwholesalerretailerConsumer

    Component manu can reasonably infer that the consumer may be in a different

    state than that of the manuo If a corporation elects to sell its products for ultimate use in another state, it is not unjust to

    hold it answerable there for any damage caused by defects in those products

    Delivered the opinion of the court5 or more judges agree

    Plurality of courtless than 5 judges agree

    - Worldwide Volkswagen

    o Can an Oklahoma court exercise jurisdiction over worldwide and seaway?

    No

    o Long arm statute on pg 48, footnote 7

    Sometimes gives long arm statute on exams

    Point out the part of the staute that proves why the long arm statute

    applies

    o Is it constitutional?

    o minimum contacts

    Fairness and sovereignty

    Protection of D against burdens of distance with litigating

    State courts dont overstep their boundaries

    o Fairness factors

    Burden on defendant

    The forums interest in adjudicating the dispute

    The Ps interest in obtaining convenient and effective relief

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    The interstate judicial systems interest in obtaining the most efficient resolution of

    controversies

    The shared interest of the several states in furthering fundamental substantive

    social policies

    o Questions to ask

    Does D have minimum contacts with forum?

    Purposeful availed himself of forum

    Assuming minimum contactsis it fair to exercise jurisdiction in light of the 5

    factors set out in VW?

    o Two ways to see personal jurisdiction

    Is it fair?

    Does federalism apply to this instance?

    o Foreseeability argument?Parade of horribles response

    o Justice Brennan

    Doesnt buy thesovereignty thing

    Wants there to be based on reasonableness and fairness

    Oklahoma wants to make sure ppl who gets hits by a drunk driver on their

    highways to be compensated (Oklahomas interest)

    Family has to be in Oklahoma hospital (Ps interest)

    o Notes4 on pg 57

    A) Doesnt change anything

    B) An argument can be made

    C) Doing businessGot em!

    o Notes9 on pg 58

    Personal jurisdiction in federal court

    - Federal courts are not constitutionally bound in the same way that the states are

    - If congress says so, federal courts can exercise jurisdiction over anyone

    - The federal courts power is restricted under the 5 thamendment

    - 4k1afed courts voluntarily that fed courts are usually restricted by state court

    Note on Keeton and Calder

    - Calder is more important

    o Calder effects test

    Only applies to intentional torts

    Even if you dont purposefully avail yourself of a particular forum, if you knowingly

    inflict a wrong on a person in the forum, they can sue you there

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    ExTwo reporters in NY write an article about Shirley jones who lives in CA sells it

    to national enquirer and defamed her. Shirley jones can sue the reporters and the

    magazine.

    - Keeton

    o P had no connection with new Hampshire

    P doesnt have to have connection to the forum, only defendant has to

    o She can sue in New Hampshire for the whole defamation in the U.S.

    - Burger king case

    o Choice of law provisionProvision in a K that provides that if theres a dispute regarding

    the contract, the K will be interpreted in accordance with the law of blank state

    Is the body of law that the state uses to determine which law applies

    Exif a NY P sues a NJ D in NY court for injuries cause by an accident in

    Conn., the NY court will consult its choice of law rules to determine whichstates law will apply.

    o NY court would choose Conn.

    Most courts will honor choice of law provision as long as its reasonable

    o Question is whether there is enough to make Rudzewicz go to Florida?

    Yep

    o Personal jurisdiction

    GeneralCan sue D for anything in the state. D is substantially in State

    SpecificSpecific issue in that state to bring suit

    o Minimum contacts testLooking for purposeful availment

    Random, Fortuitous, Attenuated contacts Unilateral activity of another party or a third person

    o Steps

    4K1A

    Long arm statute

    Constitutionality

    GeneralSystematic and continuous and substantial

    Specific

    o Minimum contacts test (purposeful availment)

    o Fairness contacts

    Pg 69 first full paragraph

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    1/15/14

    Overview

    - International shoe adds onto pennoyer case doesnt replace it

    - Mcgee, Hanson and gray

    Important caseso First two casespurposeful availment and minimum contacts

    o Gray introduces stream of commerce

    - VolkswagenPuts a brake on stream of commerce

    o SOC stops at the last sale

    Foreseeability isnt enough

    - Burger KingRefines some Volkswagen points

    o Gives us personal jurisdiction in terms of contracts (the above cases were torts)

    - All of these cases deal with specific jurisdiction , NOT general

    o GeneralD is so present you can sue anywhere (ex. APPLE)

    o Specific

    Back to burger king case

    - Case started in federal court of south florida

    o Diversity of citizenshipdetermined by domicile

    RudzewiczMichigan

    CorporationsDomiciled by 2 places

    State theyre incorporated in

    State where principle office is

    -

    Starts with long arm statute

    o See if Florida has authority to bring rudzewicz to florida court

    o Fed court follows state court jurisdiction4k1a

    - Special appearancenot submitting to jurisdiction but just to resolve dispute

    o Nowrule 12 (B) motion to dismiss complaint

    - Court gives jurisdiction

    - Bench trialjudge makes decision not jury

    - Goes to circuit court of appeals11thcircuit for this case

    o Reversed the decision of trial level court

    - Nature of claim

    o Breach of contract case- Why is it that the court feels comfortable that rudzewicz is able to come down to florida to litigate

    this case?

    o Rudzewicz dealt with Michigan and Florida offices negotiating the contract

    Minimum contacts

    o Rudzewicz sent payments to Florida

    Performance of the contract

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    o Choice of law provision

    D had some idea that Florida is playing some role in this contract

    - Rationale for holding

    o Minimum contacts test

    Where a state seeks to assert specific jurisdiction (footnote 15, pg 67)

    D has purposefully directed his activities at residents of the forum

    Litigation results from those activities

    o Fairness

    Footnote 13 pg 67

    Factors pg 69

    J. McIntyre Machinery, LTD v. Nicastro

    Facts

    - Nicastro hurts hand in machine manufactured in England (McIntyre)

    - Owner of business Nicastro worked for bought machine from Ohio distributor

    - McIntyre told Ohio distributor to sell machine anywhere in U.S.

    o No specific state

    - Gray v. Volkswagen case difference

    o Stream of commerce

    - Nicastro is more like Gray

    Judgment of court

    - No jurisdiction

    How do they decide?

    o Opinion of the court5 or more justices agree

    NO opinion of the court

    o Plurality of courtLess than 5 agree but its the most

    Kennedy, Roberts, Scalia, Thomas

    o ConcurringAgree with judgment but not opinion Breyer and Alito

    o DissentingDisagree

    Ginsburg, Sotomayor, Kagen

    Oral arguments

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    Pg 78

    Facts are in 1

    Decision

    - The defendants need to aim their activity specifically at something

    - Need some sort of purposeful availment

    - Pg 82need to get something specifically out of that state

    Breyer

    1/22/14

    - Calder effects formula for jurisdiction

    - Stream of commerce

    - Personal jurisdiction in a K setting

    o McGee and Burger King

    o Burger King Case

    Court looked at K provisions

    Choice of Law provision

    Prior negotiations

    Continuing business relationship with Florida

    - Couple of things here

    o Pennoyer basis

    Quasi In Rem

    Personal

    Domicile

    Transient presence (found / served in the forum)

    Consent (appearance/ general appearance)

    o Specific JurisdictionD is outside of the state but has done something inside the forum

    Long arm statuteauthorizes courts to exercise jurisdiction over non resident

    CPLR 302

    Purposeful availment

    Constitutional basis Minimum contacts with the state (90% of constitutional analysis)

    Fairness factors (VW; Burger king)

    o Burden on D

    o The forum state has an interest in case

    o The Ps interest in obtaining convenient and effective relief

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    o The interstate judicial systems interest in obtaining the most

    efficient resolution of controversies

    o The shared interest of the several states in furthering fundamental

    substantive social policies

    Asahi Case

    - Bob is driving a motorcycle

    o Fell off and tire exploded

    - Sues tire manufacturerManufacturer is from JapanBrings in valve manufacturer from Taiwan

    - Bob serve summons and complaint to tire manufacturer

    - Tire manufacturer sends answer to Bob and 3rdparty summons and complaint to Valve

    Manufacturer

    - Valve sends 3rd

    party answer- Bob and tire manufacturer settled (not mentioned)

    - Now tire manufacturer v. valve manufacturer

    o Valve manu motion to dismiss on lack of jurisdiction

    Says valves get to California via Japan mfr & through stream of commerce to

    California

    - Court4 says yes, 4 says No, all 9 says the case should be dismissed based on fairness factors

    o Burden on D was severe

    o Interest of forum not great bc the person involved (Bob) was already compensated

    o Shared interest of the states

    Shouldnt have two foreign manufacturers arguing with foreign law in California

    courts

    General Jurisdiction

    - What is it? Can sue the D in the forum for anything because the activity in the forum is so great that

    the D is almost at home

    o Ex.Apple computers

    Goodyear case

    - Two 13 North Carolina boys died in a Bus accident in Paris

    o Try to sue Goodyear and their subsidiaries (3) in NC

    - Specific jurisdiction? No

    o Accident in Paris tire has no bearing on NC

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    - North Carolina lower court grants general jurisdiction

    o Says tires made its way into NC

    - Post international shoe

    o Perkins CaseSystematic and continuous (general jurisdiction) activity was so great that a

    mining company in the Philippines can sue an Ohio company in Ohio

    o Helicopteros No general jurisdiction

    - HoldingNo general jurisdiction

    - No gray area

    - Ruchser likes the notes to goodyear better than the case itself

    - Note 7relatedness

    o Is it sufficient that contacts related to the cause of action, or must the cause of action

    arise out of the contacts

    o Corporation from NJ sells a lot of cars in Oklahoma and NY. I buy a car from that

    manufacturer in NY. I drive the car from NY to Oklahoma where it blows up. Can I sue the

    manufacturer in Oklahoma? Most courts would say that Corp would be held to specific jurisdiction bc that corp

    sold that exact product in that jurisdiction, and that product is sufficiently related

    Brilmayer says noif its not a fact related to your case is doesnt work

    Jurisdiction

    - International shoeboxearlier verison

    o Now we got purposeful availment (related)

    o Fairness

    Systematic and continuous

    activity PLUSclaim relates to activity

    YES ALWAYS

    o Now we got purposeful

    availment (related)

    o Fairness

    o Now we got purposeful

    availment (related) Goodyear

    Quasi in RemShaffer v. Heitner

    Personal

    - Pennoyero 1) Bernham

    o 2) The earlier cases

    o 3

    - Specific

    - General

    o Goodyear

    o perkins

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    Shaffer v. Heitner

    - Small lecture on Corporations

    o Government created entity

    Owned by shareholders

    Board of directors (usually appointed by shareholders) make the important

    decisions

    Officers run company on day to day basis

    Employees bottom of the power chain

    o Shareholders bare the brunt of any wrong done by directors and officers

    o When shareholder decides that the directors/officers have done wrong, he brings an actionagainst them

    o When a shareholder sues officers or directors of a company alleging they breach their

    fiduciary duty, its called a shareholders derivative action

    - Shareholder brings shareholders derivative action

    o Wants to sue the officers and directors in Delaware

    - Greyhound incorporated in Delaware, principal place of business in Arizona

    o Not very likely to be able to sue in Delaware

    - Shareholder attaches to stock

    o Stock is deemed to be held in Delaware

    - D says its not fair to make them come to Delaware

    o Insufficient contacts and property is not related to the lawsuit

    Status as shareholder has nothing to do with cause of action as directors / officers

    - SUP CT questionDo we need to update the rules regarding quasi in rem to account for the

    notions of fair play and substantial justice that were established in international shoe?

    o Court says yes

    - Holding

    o You cannot attach to the property unless the property relates to the claim

    - Need the term of relatedness

    - Most important pg of case pg 110- Notes pg 118

    o #2

    (a) Yesquasi in rem okay

    (b) YesPI that relates to the property

    (c) YesFull faith and credit clause

    o Fairness

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    A judgment that is rendered in a quasi in rem action is only enforceable

    against property

    o Once that property is sold, thats it

    Or attach to another state and sue him again

    - Burnham case

    - Should the transient presence basis of jurisdiction established under pennoyer be updated to

    comport with notions of fair play and substantial justice in international shoe?

    o 4 justices say yes, 4 say no, and 1 says what the hell is going on?

    o Nosays tradition! You get served in the jurisdiction

    o Yesmodern standards! Once you step into jurisdiction you purposefully avail yourself to

    it

    o Stevensthis is nonsense

    - Take awayif you serve someone in the jurisdiction, you got him

    Notice

    - Have to give defendant adequate notice of a lawsuit

    o Summons and complaint is served to defendant

    - Rule 4 will show us how to properly serve a defendant

    - If you serve someone in the forum who happens to be there on business. Jurisdiction? Yes

    o You also fulfill notice bc you serve him summons and complaint

    2 fer

    Effective notice

    Effective jurisdiction

    - Can serve someone outside of the forum but will not have jurisdiction over him

    o Effective notice

    o Non effective jurisdiction

    - Defendant ABC Inc.Want to sue on a K in Cali and wants to bring it in NY. Corporate officer

    served in NY. Jurisdiction? NO

    o Can get jurisdiction over natural person in the jurisdiction

    o Cannot get jurisdiction over a corporate entity in the jurisdiction

    o Notice? Yes its proper service

    Rule 4 (pg 5) SummonsOrder from court to participate from lawsuit (typically respond with an

    answer)

    - (1) Summons must contain

    o Name of court and party

    - Issuance

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    - Summons must be served with the complaint

    - Rule 4(e) serving an individual within a judicial district of the US

    o NY action in SDNY and want to serve the guy in NJ? Yes you can

    (1) Look for rules for service

    In NY

    In NJ

    o (2)

    Deliver a copy of the summons to the person individual

    Leaving a copy at the individuals dwelling w/ someone of suitable age

    Just old enough to appreciate the nature of the importance of a paper

    o Like 7 or 8? Okay

    o In diapers? No

    - HYPO

    o Wanna serve Joe joe. Go to his summer home and serve the mans sister. Three reasons

    why it may be ineffective service: Might be his little tiny sister

    Not his domicile

    The sister might not live there

    National dev co v. triad holding corp

    - Super rich guy moving all over the place, court gives jurisdiction in NY

    - If he wasnt living there at the time, the court doesnt have any opinion

    Subject Matter Jurisdiction

    - 3 topics we are going over in SMJ

    o Diversity

    For natural person

    Complete diversityAll Ps must be diverse from all Ds

    o Determine by domicile

    Same rule if Corporation is involved

    Determine by principle place of business

    Amt in controversy has to be over $75,000

    o Federal Question

    When the Ps claim is based on the violation of a federal law

    o Supplemental (talk about later in course)

    For extra people that maybe be brought into the lawsuit

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    Diversity

    - Why are federal courts limited in diversity?

    o ConstitutionDivides power

    So theres no state biased

    - 28 USC (1331 & 1332)pg (252)- What is original jurisdiction?

    o Trial court jurisdiction. The other jurisdiction is appellate

    - Citizenship 3 rules

    o There must be complete diversity of citizenship

    Strawbridge v. curtiss

    Requirement for complete diversity comes from section 1332 of 28 USC

    (statutory requirement)

    The constitutional requirement for diversity only requires minimal diversity

    o At least a person from 1 state on one side and a different state on

    the other side

    o Pg 183 note 3

    To illustrate that congress can make legislation to change

    the diversity requirements to minimal diversity in certain

    special cases

    When do we determine diversity?

    The day the lawsuit starts / date of the commencement / institution of the

    action

    o Date of the filing the complaint

    Determine the citizenship of the parties

    Natural personDomicile

    o Where you are born

    o To change domicile

    Physically take up residence in a new state

    Intent to remain there for the indefinite future

    Subjective based on factors

    Corporation

    o Citizen of two places

    Place of incorporation Place of where its principal in business

    Mas v. Perry

    - Married in Mississippi and moved to Louisiana to work at LSU

    - Landlord in Louisiana had two way mirror, couple leaves

    - Commences action in Louisiana

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    -

    - Mas leaves and has new permanent residence in Illinois

    Landlord argumentthey lived in Louisiana so no diversity in citizenship

    - Court said NOo Mere residence is not domicile

    o A change of domicile may only be affected by two elements

    Taking up residence in a different domicile

    With intention to remain there

    o Wife saying shell never go back to Mississippi doesnt change her domicile

    Intention to not go back is not leaving domicile until new permanent residence has

    been established

    o Pg 187, note 2

    o Pg 188, note 4

    (a) Yes, she is not physically in the place she intended to live in (b) She loses because we determine diversity at the date of commencement

    (d) Certain places outside US are considered states (District of Columbia, Puerto

    Rico, etc.)

    Citizenship of corporations

    28 USC 1332 (c)(1)

    Randazzo v. Eagle-Picher Industries

    - Have to allege diversity in the complaint

    o Fed rule procedureRule 8 (a)

    Forms pg 132Statement of jurisdiction

    - Lawyer didnt allege didnt allege diversity of the corporation

    - Dismiss with prejudiceThe plaintiff cannot bring up the claim again

    Hertz Corporation v. Friend

    - Removal jurisdictionIf you are the defendant in the case and there is diversity there are special

    circumstances where you can remove it from a state court and bring it to the fed circuit

    - Hertz has to prove diversity

    o Hertz argues that its corporate headquarters is in New Jersey

    Small percentage of business in Cali

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    o Lower court district Cali says Hertz is a citizen of Cali

    9thcircuit precedent

    Determine business activity from state to state and Hertz was

    predominantly in Cali

    - Supreme Court holds thats Hertz is not in Cali

    o Nerve Center test determines its New Jersey

    Where is it headquartered?

    - Supreme Courts rationale

    o Its easier to administer

    o Statutory language of the principal place of business

    o Pg 202 Mid paragraph is supreme courts problem that theyre expecting

    Overall center of control, direction and coordination

    o Anomalies will arisetoo bad says Sup Ct.

    Representative Suits and Assignments of Claims

    - Representative suitClass action, Parent represents children, Administrator of the Estate

    o Rule

    Child, incompetent and estates

    We look at the citizenship of the person represented

    Class action and Shareholder derivative claim

    We look at the representatives claim

    - Assignment of Claims

    o If someone buys a note from someone else in full Diversity of citizenship

    o If someone is assigned a partial of the note from another state No diversity

    - Domestic Relations and Probate exceptions

    o Domestic relationsFed wont hear it

    o Probate / willsFeds wont hear it

    Amount in Controversey Requirement

    Pg 213, note 5Part (a) and (b)MEMORIZE!

    a) One P v. One D

    a. P can bring two separate claims against the same D to make it to fed court

    b. P cannot bring together two separate claims against 2 separate Ds for fed court

    c. 2 ps cannot aggregate their claims against one defendant

    d. Joint several liability

    b) Multiple parties on either sides (joint and severally liable)

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    a. As long as theres one claim, you can bring to fed court as long as its over 75K

    i. Makes multiple Ds one D for this instance

    c) Suing for equitable reliefHow to sue for amt in controversy?

    a. Injunction isnt grantedhow much is the P affected?

    b. How much will it cost the D?

    Woody Allen Complaint

    Mottley Case

    - Mr and Mrs Mottley given lifetime passes to ride on the railroad

    - Congress passes a statute that prevents railroads from giving free passes- Mottley sue the railroad over denial of free service

    - Bring up constitutional argument

    o Unconstitutional for congress to assert that much power

    - Is this a federal question case? NO

    - Barebones / Well pleaded complaint rule

    o Mottley alleges

    (1) P and D entered into a contract

    (2) D breached contract

    (3) P wants damages

    Wherefore clauseo Railroad answer

    Railroad admits (1) and denies (2) and (3)

    As and for 1staffirmative defenseCongress passed statute

    o Federal question in answer therefore not a federal question case

    - Grable caseKnow 1stparagraph memorized

    2/10/14

    Federal question jurisdiction

    - How do we determine if its a federal question?

    o Federal statute or constitution

    Statute examplePatent law

    Violation of a statute based on federal law

    For this classNo such thing as federal common law

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    Constitution

    - Does all federal statute create a right to sue? No

    o Where you can sue

    Right to sue provision put in by Congress

    o Why you cant sue over some statues

    Use governmental authorities to enforce rights upon businesses instead of letting

    consumers sue

    - Employment questionFederal law under civil rights act

    Mottley case continued

    - What should the motleys put in their case?

    o Cause of actionBreach of contract by RR for not fulfilling its K obligations

    o As a result of breach, Mottleys suffered damages

    - RRs answer / response to the complaint

    o DefenseUses statute made by congress as a defense

    - Mottleys turn around and make it a constitutional issue

    o 5thamendment issue

    - Why isnt it a federal question?

    o Original complaint arose from contract law

    Plaintiff must allege federal issue

    - Section 1331

    o Limits the types of questions that can be brought in federal court

    Only if the plaintiff alleges it on the complaint

    o Court interprets this section, NOT the constitution

    - If something is mandated by congress, it can be changed

    - Notes

    o (1) Well pleaded complaintdoes the federal question have to appear in the plaintiffs

    complaint to make a valid cause of action?

    o (2)

    P had claim against D

    D has his own claim against Pcounterclaim D1 sues D2 who are both sued by P Cross claim

    Suit by a defendant by another defendant

    Holmes group case

    Constitution enables congress to change a rule in a case

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    Well pleaded complaint problems raised by declaratory judgments

    - Declaratory judgments allots rights to parties but no monetary damages

    o Basically before the shit hits the fan

    o Asking the court for advice before you undertake to do a particular thing

    o Hard to figure out whether its a federal question claim or not

    What is the thing that nobody is doing yet?

    Make believe the action is taken

    o Who is going to sue whom?

    What does that complaint look like? Whos the P and D?

    Is there a federal question in it?

    Centrality of the issue of federal court

    - Think nesting dolls

    - State law claim, where one of the claims involves the interpretation of a federal statuteo Grable case

    Quiet title actionseeks a declaration from the court to determine who is the

    owner of the property

    Grable v. Darue

    - 5 years later Grable brings quitclaim title action on the grounds that personal service was

    required not by mail

    o Grable says he still owns the property because the IRS didnt do service properly

    - Complaint (nested within this state law claim is a federal claim centrality of issue!)

    o I am Grable, I Allege

    1. Grable is the owner of the property

    2. The IRS foreclosed on property because there was a tax lien

    3. Service was given properly under 26 USC 6335

    4. Resale is anullity and I own the property

    - First paragraph

    o Action brought in state court and removed to federal court

    o Citizens are non-diverse

    o Statutory issue is whether section 6335, is if personal service was done properly

    - Merrell Dow case

    o Whether Merrell violated federal misbranding

    o In state court because federal law didnt let you have personal suit

    State court claim was as negligence per se instead

    Draft complaint!

    (1) I am Thompson

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    (2) I bought a drug from Merrell Dow

    (3) Merrell Dow has duty to provide me with a safe drug

    (4) Merrell Dow breach duty by failing to label drug in violation of

    federal labeling law

    (5) I got hurt

    o Court said that there is no federal question jurisdiction

    (4) the embedded federal issue was a law that could not be sued in

    Pg. 227congress had not provided a private federal cause of action

    for violation of the federal branding requirement, and the court found it

    would flout or at least undermine congressional intent to conclude that

    fed courts might nerveless exercise fed jurisdiction and provide

    remedies for violations of that federal statute solely because the

    violation

    o Merrell v Grable

    Merell would open the flood gates

    And undermine congressional legislation

    Grable issue would solve the issue with a one shot deal

    - Pg. 228Court points out that it would open the flood gates to a tremendous amount of cases

    - Pg 229

    o Court distinguish between Merrell and Grable

    Quiet title over federal issuerare instance

    Mislabeling of a drugCommon

    - **Look for the nesting egg in issues!**

    - Notes

    o

    (4) Only congress can make the determination of who goes into federal court

    Supplemental jurisdiction

    - Plaintiff might have a couple of claims

    Employment agreement w. employer and cant be fired without a good cause. Think youre getting fired

    because of your religion

    - State law and federal claim

    - If state law claim is sufficiently close to federal claim, state law claim can piggyback a federalclaim

    Removal jurisdiction

    - **Read the relevant statute**

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    -

    - Read 28 USC ss 1441

    o If defendant is from state where action is brought, cant remove

    o Pg 234

    (1) a. No. Yes.

    (1) b. No1446 (2)C

    (2)(a) Yes. He has 30 days. File notice of removal in federal court. The court can

    deny permit or remand action to state court

    (2) (b) Its the state he lives in. It makes sense because theres not gunna be a

    biased in the state he lives in.

    For next class

    2c.

    3

    4

    Venue questions on page 246

    Pg 235

    2(c)

    3(a) initial pleading

    (b) Notice of removal

    (c) Preponderance of evidence

    (d)

    4(a) 1447(c)

    (b) Remanded 1447(c)

    (c) Federal question

    (d) common law breach of contract not federal question

    (e)

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    Some things about removal

    - The relevant statutes 1441, 1446,1447

    - Who can remove

    o D only

    Must get consent of all Ds served- Can you always remove if fed question?

    o Yes

    - Can also remove if diverse?

    o No, if you P is citizen in state

    - Time limit?

    o 30 days for the day of the action

    - Does it apply to defendants late in the game?

    o 30 days from when they are made parties

    Must get unmemitity

    - What happens if subject matter jurisdiction is created later?o If D is dropped from case maybe if can be removed

    P voluntarily drops D1 from case (includes settlement)

    Can remove to fed court

    D1 moves to dismiss claim and court grants motion to dismiss

    Cant remove

    - Is there a limit on when you remove

    o Can remove within 1 year

    Exception is bad faithCan remove at any time

    - Changing citizenship of the parties

    o Date of commence of the action

    - Where do you remove?

    o The corresponding federal district court

    Venue rules do not apply in this situation

    - Case was improperly removed?

    o Motion to remand

    30 days

    o Lack of subject matter jurisdiction

    Forever and a day

    Venue

    - Ven you pick the federal court

    o 94 district court

    - Things to think about with federal court

    o SMJ

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    o Which district court I can bring the case in?

    - Similar to PMJ

    o Similar policy where it needs some connection to defendant

    - Ex.In SDNY

    o Can I exercise PMJ over D in NY?

    o Is venue proper in SDNY?

    - Initial venue question

    o Relevant statute section

    1391Generally

    (b) 1

    o Only for all D residing in the same state

    Can bring in any district in that state

    (b) 2

    o Ex.Car accident

    o Under this claim, venue is in district of car accident

    (b) 3

    o D1NY, D2NY, D3NJ, AccidentCT

    Can P bring action in VT if a def. is sub. to pass

    jurisdiction these?

    o This section is only if B1 and B2 cant be done

    HYPO changed, AccidentToronto

    Now (b) 3 lets us sue in VT

    How do you figure out residency? 1391

    o Domicile

    c(1) Born or moved there with the intention of living

    there (SMJ rules)

    c(2) Corporation (not SMJ matters)

    Personal jurisdiction test

    (d) D doesnt like district P uses and changes it

    o Gives you a choice of which courts you can use

    Pg 246

    1. A. ss1391(b1) EDNY, (b2) Maine

    B. No because Doug doesnt intend on staying in Vermont

    C. No, because just because you have pmj doesnt mean you have venue under (b1) and (b2)

    3. A. In any place we have personal jurisdiction over the corporation

    - Goodyear case says general jurisdiction makes venue proper in Delaware, and western district

    of Michigan, Maine. Venue would only be proper in Tennessee and Georgia if they:

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    - Relatedness

    - Have activity in that jurisdiction

    5 possible places under personal jurisdiction

    - Where the corporation has its residence

    o Delaware and Michigan

    - Where the corporation is doing business

    o Tennessee and Georgia

    Cantget general jurisdictionnot Inc. there or principal place of business

    See if theres specific jurisdiction

    Relatedness to case

    o i.e.defect was designed in one of those factories

    - Where substantial portion of the events

    o So Maine as well

    3. B. Maybe (depends on relatedness). No.

    C. No. Yes.

    Two tricks for venue

    - Dont go to b(3) if there are any states available unless b(1) and b(2)

    - Figuring out the residence for venue, for a person its his domicile

    o For corporationpersonal jurisdiction

    Where its principal location and state of inc is definite

    The rest is part of specific jurisdiction

    Bates case

    - D did not engage in any business in NY(b)1 is no good

    - Venue is where the substantial amount of event occurs

    o Event happened when letter was opened

    - If ambiguity happens that is critical to Ps claim it satisfies B(2)

    SS 1404Transfer of Venue

    - Where venue is right in one place and is changed to another place

    - Up to the judge to decide basically

    - Burger King Case

    o Rudiewitz has to go to Florida from Michigan

    Brennan says if Rudiewitz could make a motion to transfer under 1404

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    Brennan is a big proponent of letting district court judge to decide

    - Only to other places where venue are proper

    - Argumenttheres another court that has venue thats better

    SS 1406 Cure or waiver of defects

    - If filing is in wrong district, court can transfer it to appropriate place

    Goldlawr Transfer

    - Motion to dismiss based on

    o Court doesnt have PMJ

    o Venue is improper

    - If court determines there is no jurisdiction and lack venue- If court dismisses case, the person would have to go through the whole process again (lose a lot

    of time)

    - Gives power to transfer case even if they lack proper venue and PMJ

    Forum selection causes

    - Even if provision in contract states a certain state to litigate in, a court is not required to follow

    the contacts wishes if the claim is filed in their state

    o Courts generally follow them

    Piper case

    Where the action is originally brought?

    - Superior court of California

    Where was it transferred to?

    - To fedCentral district of CaliforniaUS district for the Middle District of Penn.

    Why are the defendants trying to dismiss the case under forum non conveniens?

    - Said an alternative and better forum existed in Scotland- Respondent argued that its unfair bc Scottish law is less favorable (thrown out)

    What are the standards to dismiss under the forum non conviens?

    - Pg 259 combined two cases synethized rule

    o When alternative forum has jurisdiction to hear case plus

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    o Chosen forum would establish oppressiveness and vexation to the defendant, out of all

    proportion to the plaintiffs convenience or when

    o chosen forum is inappropriate bc of considerations affecting courts own administrative

    and legal problems

    - Standards

    o Alternative forum to hear case?

    o Private interests?

    o Public interests?

    o Can third parties be impleaded?

    o Is there a risk of inconsistent verdicts?

    Who got it right? Trial or Appellate?

    - Trial

    What are private interests?

    - Towards the litigants, where is the most appropriate forum?

    - Relative ease of access to source of proof

    - Availability of compulsory process for attendance of unwilling

    - Cost of obtaining attendance of willing, witnesses

    - Possibility of view of premises

    - If view would be appropriate to the action

    - All other practical problems that make trial of a case easy, expeditious and inexpensive

    What are public interests?

    - Bearing on the question included the administrative difficulties flowing from court congestion

    - Local interestHaving localized controversies decided at home

    - The interest in having the trial of diversity case in a forum that is at home with the law that must

    govern the action

    - The avoidance of unnecessary problems in conflict of laws

    - Application of foreign law

    - The unfairness of burdening citizens in an unrelated forum with jury duty

    2/19/14

    ss1441(a) If diversity or federal questioncan remove to fed. court of corresponding district

    ss1441(b)(2) removal based on diversity cannot be removed if D is citizen of that state

    ss1446(a) fed court of corresponding state court, need notice for removal, copy of process, pleadings,

    orders, motions, etc.

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    ss1446(b)(1) 30 days to remove

    Choice of law rulesfigure out the most logical law to try the case

    - When changing venue, you take the choice of law of the area of the where the event occurred

    Rule 12

    - Procedure that you undertake to bring a matter to the court

    - Pleadings v. motions

    o PleadingComplaint and answer, maybe reply too

    Blueprint / outline for what the parties intend to prove at trial

    Between parties

    o Motions

    When you go to the judge (referee for relief)

    Request for an order

    Notice of motion

    o Tells other side whats going on

    Evidence that you need to convince judge (affidavit in support of

    motion)

    Memo of law in support of the motion

    o Discovery phase

    - 12(b) motions

    o Grounds for motion in 12(b)

    - Rule 12(a)o Time to serve an answer

    - 12(b)

    o Every defense for a claim of relief for a cause of action

    o (b) when to raise defenses

    o (h) Waiver of certain defenses

    Cannot waive SMJ

    (1) if you make a 12(b) motion and you do not raise a defense in (2),(3) ,(4),(5)

    that ground is forever waived (easily waivable)

    If you choose not to use a 12(b) motion, you better put it in your answer

    or else its waived (2) Can be raised at any time (harder to waive)

    (3) can never be waived

    2/24/14

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    Subject matter jurisdiction

    Step 1: Diversity or federal question? Or both?

    Step 2: Is there complete diversity between the parties?

    - No duplicate states on either sides of the v.

    - Are the parties completely diverse as the date of the commencement of the action?

    - How do we consider the citizenship of a person?

    o Domicile

    Place you originally start/born

    How to change

    Physical relocation in the state with intent to stay

    o Even if temporarily located in state, as long as you plan on

    staying there

    Second home?

    Looks at taxes, voter registration, mailing address, etc.

    Corporation

    Place of incorporation

    Principle place of business / headquarters

    o 1331federal question

    o 1332diversity

    Executor of intestate of an estate

    intestate

    Minor/incompetent or guardian

    Minor / incompetent Class actions?

    Citizenship of class representative

    Assignee or collector?

    Assignees

    - DiversityAmount in controversy

    o More than $75,000

    o Equitable reliefi.e. injunction?

    What is it worth to the plaintiff?

    How much will he be benefitted?

    How much is it gunna cost the defendant to comply? Over $75,000 = good

    o Aggregation rules

    Two plaintiffs cannot aggregate their claims against D

    Plaintiff suing two joint tortfeasors?

    Yes

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    Plaintiff can add up all of his claims against an defendant even if they arent

    related

    - What if the defendant is B.S.ing him over the amount in controversy?

    Federal question

    - ss 1331

    - two rules to remember

    o well pleaded complaint rule (misnamed)

    What is the plaintiffs claim?

    What are the basic minimum allegations needed to set out his claim?

    o Did we mention a federal questionstatute or constitution?

    o Embedded federal issue

    Federal question hidden inside of a state law claim

    Step 1: is it embedded in the complaint?

    Step 2: Does this embedded issue bring up a substantial issue of federal law?

    Step 3: Does bringing this case into federal court override congress intent to

    prevent it from federal court?

    Merrel dow

    Grabble

    Removal

    - Defendant say this case could have been brought in a federal court

    - 1441,1446, 1447

    - Defendant can only remove

    o Must get consent from all defendants served

    - Can you always remove if theres a federal question?

    o Yes generally

    - Can you always remove if theres diversity

    o No. When D is domiciled there

    - Time limit30 days

    - How do we figure it out if its removalo Soon as we know its removal30 days

    30 days from the day a plaintiff is added

    30 days from the day a defendant is added

    Needs consent of everyone

    - Is the removal of a defendant

    o If the plaintiff voluntarily leaves a defendant out, than theres diversity

    - 1446(b)diversity theres a one year cut off

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    o You cant remove for diversity created a year after the lawsuit begins

    o Exception if one year delay is caused by plaintiffs bad faith

    - If one of the parties moves = does not make it removable

    o Starts at the date of the commencement

    - Where do you remove to?

    o The federal district court of the location of the state court

    - What happens is the plaintiff thinks it was removed improperly?

    o 144730 day limit if defective is other than subject matter jurisdiction

    - Unless its SMJ than removable anytime!

    Venueven you chose the court

    - ss 1391

    o distinct in any state

    o substantial amount of events

    o where any defendant resides

    only if the others arent present

    defendants are all in different states and claim is outside of US

    - Residence of a defendant

    o Person

    Domicile

    o Corporation

    Where that corporation would be subject to personal jurisdiction

    - Ss 1404transfer of venue

    o Venue is proper where brought but we think there is a more convenient venue available

    - ss 1406

    o Venue is not proper aka transfer to the right place

    - Goldlawr transfer

    - How to choice of law rules effect venue?

    Question 1

    - Corporationdo you sue person in charge or corporation?

    - Sole proprietorshipconsidered as people

    Question 2

    - If someone brings the product into a state no purposeful availment

    - Stream of commerce ends at the last sale

    Question 3

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    Venue

    - X brings case in Y, and Z says for inproper venue?

    o 1406

    - X brings case in Y, and Z says non confiems

    o 1404

    12(b) motionhow to present defenses

    - Assert grounds (2), (3),(4) AND (5)

    - Lack of a necessary party

    o Person should be there but cant get him so need to dismiss

    o Failure to cause an action

    - Timing

    - Or can be in an answer or amended answer that you can amend as a right

    Collateral and direct attacks on personal jurisdiction

    - Collateral

    o Ignore process from the jurisdiction and enforce rights after plaintiff attempts to

    enforce judgment in a binding jurisdiction

    Not entitled to full faith and credit bc X didnt have jurisdiction on you

    14thamendment

    o Only allows you to raise issue on jurisdiction Default judgment prevents you from raising any other defenses

    Loses ability to contest on the merits but still have the chance to

    challenge the jurisdiction

    o If you win, most likely will drop the claim

    Bc you would have to re-litigate in a distant forum

    - Direct attack

    o Make an appearance in the jurisdiction and fight jurisdiction

    o Cons

    Need to find a licensed attorney in that jurisdiction

    If you lose on jurisdiction, need to litigate whole trial before appealing

    jurisdiction

    Who is more likely to hold that there is no jurisdiction in X? X or Y?

    What if you do a direct attack and that court says they have jurisdiction, can you just leave? No

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    - But you can still transfer

    Baldwin case

    - D doesnt think there is jurisdiction in Missouri and goes home

    o Federal district thinks they dorendered judgment

    o P goes to enforce in Iowa

    D claims collateral attack disputing decision of first court

    P claims judgment is already rendered

    o Federal questionres judicata + 14thamendment issue

    Res judicatathe court has already decided

    Challenging federal SMJ

    - Generallymove to dismiss SMJ under rule 12(b)(1)

    - P challenging jurisdiction of removed case?28 USC 1447(c)

    - So important that it can be raised at any time and if true, case must be dismissed

    o Leads to potential bad faith by holding information back

    - Does not work with collateral attacks

    o Only in limited instances such as bankruptcy

    - Once the case is over, you cant collaterally attack on SMJ

    o All appeals exhausted and basically nothing left

    Pleadings

    - Motionrequest for an order from the court

    - What needs to be in a pleading?

    o Look at rule 7(a)

    Complaint

    Rule 8(a)o Needs basis of SMJ

    o Statement of the claim

    ElementsStatute, form on westlaw, PJI

    Claim for relief at the end

    Answer

    Reply

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    Counterclaim

    Cross claim

    Third party claimPlaintiff sues Defendant and D brings in a joint tortfeasor

    Lawsuit within a lawsuit

    2/26/14

    Pleadings

    - Answer

    o Each number sentence (allegation) in a complaint must be addressed

    Can respond 3 ways in answer

    Admit

    Deny

    DKIDeny knowledge or informationo Assert defenses

    Reasons why you dont think youre liable for ___, other than allegations in

    complaint

    Statute of frauds, statute of limitations, etc.

    Things that would normally surprise a P

    We put in the answer so it doesnt surprise P

    Federal rules 8c

    o Affirmative defenses

    o Assert counterclaims against Plaintiff

    - Point of pleading

    o First threshold P has to do to start the lawsuit

    o Once goodDiscovery phase

    - Discovery phaseDefendant bears the brunt

    o Depositions

    o interrogatories

    o Notice to produce documents / production of documents

    o Physical and mental exams

    o Admissions

    Twombly case

    - 12(b) motion

    - What was missing, the P must prove they agreed not to compete

    - Federal rule 8(a)

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    - Issuewhether the allegation made on pg 299 satisfies the requirement of fed rule 8a of a

    short and plain statement of the claim showing that the pleader is entitled to relief?

    - Holding: motion dismissed

    - Rationale:

    o Conclusory allegation is not enough, need some factual statements to fulfill claim

    - RULE: Strip out all legal conclusions, just facts. Then see if the facts are there to show culpability

    - Dissent

    o Idea of pleading rules is to keep parties in the court system

    Iqbal Case

    - Needs to prove that AG and FBI director just tossed him into jail because hes an Arab Muslim

    o Facts

    Thrown in jail

    Confined on account of race and religion

    AG and FBI responsible bc they adopted these policies

    o More people in this case as opposed to Twombly

    - Court still throws out complaint

    o More plausible reason

    To protect Americans

    - Souter dissents

    o Twombly is not the same

    - Pg 307two working principles

    Twombal reasoning

    - Court is concerned with the expensive discovery and settlements

    - Against itPeople want their day in court

    o People dont always have the means to get access to certain information

    Swanson case

    - Suit for discrimination due to the fact that the appraisal company conspired with bank to lowerthe value of homes

    - Go forward and proceed with the case

    - Point of court to weed out ridiculous cases

    - Dissent

    o Posner gives great way to defend an allegation

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    Leathermen

    - 1993

    - Case brought against officials

    - 1983 action against municipality against what employees did

    o Municipality is not going to be liable unless a municipal policy or custom caused theconstitutional injury

    - Heightened pleading standardgeneral allegations no bueno, we want more facts if you want

    to sue a municipality

    - Fed rule 9(b)

    o Means we want more facts than whats required

    Pg 324

    Pleading inconsistent facts and alternative theories

    - Allowed to plead inconsistent facts and alternative theories- Cites McCormick case

    o Sues for death of her husband

    o Allege husband was drunk and causes the accident

    Wife denies him being drunk

    But if he was drunk, bar owner should bear liability

    - Shes allowed to do this because she doesnt really know

    Defendants options in response

    - 2 choices in responding to a complaint

    o Motion

    12(a) and 12(b)

    12(b) before answer bc 12(b) is motion to dismiss

    Changes answer timing 12(a)(4)

    o Complaint

    Pg330

    The answer

    - Admissions

    - Denials

    - DKI

    - Afffirmative defenses

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    Pg 333 notes

    1. a. Actual reason 8(c)so it doesnt surprise plaintiff

    b. Motion to strike the defense

    3. Failure to state a claim bc the particular K has to be in writing

    Claims by the defendant

    -

    3/10/14

    Practice exam on Wednesday

    - One hour

    - PMJ, SMJ, Venue

    - M/C and an essay

    Voluntary dismissalPlaintiff voluntarily dismisses his case

    - Settlement, doesnt like lawyer, etc.

    - Rule 41dismissal of actions

    o (a)(1)(A)(i)voluntaryjust fill out form and serve it (P wants out)

    o Involuntary dismissalw/ prejudice (D wants out)

    W/o prejudiceyou have a right to bring back trial

    - OppositeW/ prejudice (adjudication on the merits)

    Default judgment

    - Rule 55

    - Defendant doesnt appear or serve an answer

    - 1ststepentry of default

    o Notation that you failed to respond (rule 55a)

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    - 2ndstepgetting entry of default turned into a default judgment

    o Motion to the judgeClerk or court can enter judgment

    (1)Clerk can do it

    (2)Court does it

    A dismissal on the lack of SMJ or PMJ is not based on the merits

    Res Judicata/claim preclusionApplies to claims you should have raised as well

    Amended pleadings

    - Rule 15

    - Pleadings complaint and answer

    - Amend complaintPlaintiff got it wrong and is changing it a little bit

    o May want to add some claims

    o May want to beef up some of the allegations

    - Amend answerDefendant forgot something

    o Add an affirmative defense

    - Pleadings before are important be they are meant to prepare us what to expect at trial

    - Amendment as a matter as course

    o Amendment with motion for acceptance by court

    Motionrequest for an order

    - Movantperson making motion

    - Nonmovant person not making motion

    - First documentNotice of motion

    o Date

    o Ground

    - Second documentevidence in support of motion

    o Affidavits, deposition, interrogatories

    - How about getting a letter?

    o An exhibit

    - Third documento Memorandum of law

    - Once movant serves papers, nonmovant serves answer of motion

    o Serves

    His evidence in opposition to the motion

    Memo in opposition to the motion

    Pg 337read rule 15(a)

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    1. A. Yes because the answer was served under 21 days

    B. Yes, motion is responsive

    C. Yes bc its within 21 days 15(a)(1)

    - Is a the answer required? Rule 7only if court says so

    D. Amend it unless there prejudice

    E. May 24th

    15(b)Plaintiff suddenly starts bring in other claims or information

    - Objectionnot within the

    - Very liberal not a big deal

    15(c)

    - If claim Y arises from the same set of facts as claim X and claim Y would have been timely if

    served in original complaint, then we are going to allow plaintiff to assert claim Y

    - (C)if you serve correctly but name is wrong

    Marsh v. Coleman Company

    - Marsh wants to allege a fraud claim bc the company misled him

    - Issue: Can the fraud claim be time barred if it would have been in the original complaint?

    - Court says no because claim was time barred before the claim was made

    - Judge in this case has a very strict idea for relation back

    - If judge was more liberal, would probably allow relation back

    Rector

    - Sold stock from one bank to another bank

    o Felt he was swindled and sue for billions

    - Amended complaint for infinite amount

    - Rule 11When we sign a piece of paper, we are certifying we are honest and profession

    o When signing, you are saying that the arguing on good faith and its not a frivolous claim

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    - Rule 11 motion for sanctions

    o Serve that motion to opposition

    If now answered or corrected in 21 days, submit the motion to the court

    o In rectors situation, he waived right for motion by not raising motion

    ERIE DOCTRINE

    - Diversity action in federal court

    - Common law claim with no statutory basis

    - For common law claims before Erie, on a diversity actions, the federal courts would disregard

    state law and make their own federal common law

    - Supreme Court stops federal judges from making common law

    o Rules of decisions act

    Federal courts should use the law of the state

    o Federalism

    Federal government has limited powers, and doesnt have the power to govern

    negligence actions, etc.

    o We can apply the laws of the state, but we can still use federal procedure rules

    LawState substantive law

    ProcedureFederal civil procedure

    - In a diversity action in federal court

    Hanna rule

    In a diversity action in a federal court, the fed ct does not have to apply a sub rule, even if its outcome

    determinative, if that rule conflicts with a rule of federal procedure.

    11/17/14

    - Principles we need to get down to understand ERIE

    o Congress has limited powers on what it could do Constitution article 1, section 8 (enumerated powers)

    How about civil rights act? Not under section 8

    Congress went under commerce clause

    Congress has to have the power in order to pass legislature

    o State legislatures have power to legislate in almost any field

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    o If a federal law is valid (congress legislates and is enumerated) than that law takes

    priority over any conflicting state law

    This is because of the supremacy clausearticle 6, clause 2

    - What law is applied in federal courts?

    o Step 1look at the rules and decision act ( 28 USC 1652)

    Unless there is a provision of the constitution or a federal statute that controls,

    the federal courts should apply state law

    For diversity cases

    - Swift v Tyson (preceded Erie)

    o Decided in 1842interpreted the rules and decision act

    o Question was whether state common law decisions were law within the meaning of

    the rules and decisions act

    o If its a common law matter, they didnt have to follow it

    o Diversity action, claim is common law negligence claim, they applied federal common

    law of negligence

    No federal law for negligencecourts would make it up

    o Exception Some state common law matters known as local matters and these were

    laws thats were very particular to that state

    o Take away from this case

    If you have a claim arising out of a federal statute or constitutionfederal

    claim federal law applies

    Diversity claimarises from state statute, court applies state statute

    Diversity actionarises from common law claim, court applies its own version

    of common law unless the common law is a local common law (very particular

    to the area)

    o You can argue that the rule of swift is inconsistent with the idea of a federal government

    of limited powers bc under swift the federal courts are making law in areas in where

    congress wouldnt be able to make law

    - ERIE case

    o Conflict of laws issueevery state has conflict of law principles, it tells the court whichstate law to apply

    o LCdetermines that this is a question of state common law, disregards it and gives

    $30,000 to plaintiff

    Defendant tries to argue that this is a local common law claim penn law

    applies

    Fed court says its general law

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    o Comes up to supreme courtthey overrule swift v Tyson

    o Rule: Diversity casestate law

    o Question arises where state procedural rules need to be applied in federal court?

    State rule on burden of proof will be applied in a federal diversity action or else

    it would result in forum shopping

    State rule says the answer had to be answered in 14 days and federal rule is 21

    days. D answers on day 18. P moves for default judgment

    Procedural thing doesnt promote forum shopping

    - Pg 548549

    o Guaranty Trust Co. v York

    Should state statute of limitation should apply? Yes

    Outcome determinative test

    Not applying the state rule will change the outcome of the case

    If its X happens in one court, and Y happens in another court, the result

    would be forum shopping

    o If we applied the federal rule of latches in this proceeding, P

    would be able to bring his lawsuit

    o If we apply state SOL, P will lose

    o Ragan v. Merchants

    Filed in fed court on Monday

    Claim expires on Tuesdays

    Serves defendant on Wednesday

    Fed rule saysaction commenced when its filed

    State rule saysaction commence when D is served

    D moves to dismissoutside of SOL

    Court makes this outcome determinative problem

    Everything is outcome determinative!

    - Blue ridge case

    o Workers comp issue

    o SC corp wants Byrd to be considered statutory employee so hes under workers comp

    o Byrdindependent contractor and wants to be that way to recover outside of workers

    comp

    o This is what SC does to determine

    In SC the issue of whether a plaintiff is a statutory employee or contractor isdetermined by the judge not by the jury

    o State rule that this issue is determined by the judge and not the judge

    Look at Erie

    o What brennan does is what we are going to do for erie issues

    2 categories (pg 551)

    Substance state created rights and obligations

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    o We must apply the state rule, its required by the constitution

    Bound up in substance

    o If policy is not intimately related to statute, its not bound up in

    substance

    o We must apply the state rule, its required by the constitution

    Form and modeProcedural / outcome determinative

    o If its procedural and outcome determinative we should apply

    unless there is a countervailing federal interest

    Form and mode not outcome determinative

    o Of course not!

    o Let the jury decide

    o Ask yourself

    Substance or bound up in substance?state rule in federal court bc

    constitution demands it

    Form in modeis it outcome determinative? Countervailing federal interest?

    Like: Forum shopping v. jury determining

    - In Hanna

    o State rule that executor of an estate has to be served personally in a certain way

    o Fed rule says differently

    o In fed diversity action, executor served with fed rule and not state, SOL runs out

    o New rule: If congress makes a federal rule and it conflicts with state rule, the state rule

    is preempted

    3/19/14

    Jist of Eriesubstance state common law important and feds cant make it up

    Basis of Erie

    - Limits on fed. authority in constitution (Art 1, sec 8)

    - Tenth amendment

    - Rules of decision

    o In diversity casesapply the law of the states

    - Court has to grapple with question of state procedural rules

    o Guaranty trust case

    Outcome determinate

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    Type of state rule that looks procedure but changes case / forum shopping /

    bound in substance so have to hear

    o Ragan case

    Service rule: state v fed

    State rule wins

    o Cohen v. beneficial

    Federal rule for when you can bring a shareholders derivative action

    State rulebring shareholder action, representative has to carry a bond

    Prevent frivolous suits

    Fed rule doesnt mentioned bond requirement

    Court brings in state rule

    o Byrd case

    Brennanwhether a state custom from case law that judges would decide

    particular issue of fact would apply in federal diversity action

    Fact being whether an independent contractor was an independent

    contractor under SC law

    Is it substantive or bound up in substance?

    Bound up in substance

    o SOL

    o Burden of proof

    o Choice/conflict of law principles

    Procedural (form in mode) rule? Is it outcome determinative?

    YesShould probably bring it in unless federal countervailing interest

    No?Dont bring itin

    Custom of law in SC wasnt substantive or bound up in substance

    Proceduralis it outcome determinative?

    o Pretends it wasbut countervailing federal interest (forum

    shopping) overrides procedure

    o Not outcome determinative in a full sense

    Jury only has so much power

    Judge can override it

    - Hanna case

    o Service of process rule

    State rule: Sue an executor, have to serve personally

    Fed served differently

    o D serves P to fed court

    Doing that SOL expired within state law

    In fed courts it would be okay

    o Is it outcome determinative? Yes

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    State ruleP wins

    Fed ruleD wins

    Have to bring in state rule

    LC and appellate affirm this

    o How do we know if a rule is valid? Pg 557 (2 step process)

    Can congress make these federal rules of procedural? (do they have the power)

    Art 1, sec 8, cl 9 & 18

    Does it fall in the delegated authority?supreme courtrules enabling act

    Cant infringe on state law

    o Start talking about the purpose of Erie

    Purpose is to reduce forum shopping not outcome determinative

    o Modified outcome determinative test pg 559

    Have to look at the outcome before the case commences to see if the outcome

    will send plaintiffs flocking to fed court

    Ex ante effect (before the event)

    Generally speaking is it outcome determinative?

    Serving an executor at his house is not going to be outcome determinative

    generally speaking

    o If feds are satisfied that the fed rule is valid, we dont care about state rule because

    federal law trumps state law.

    o Pg 560Erie says fed courts cannot make up law

    If it looks and sort of smells like procedure, its probably valid

    o Test for Hanna

    Look at state rule and compare to fed rule

    Ask: is there a conflict between state and fed rule?

    If theres a conflictlook at federal rule itself

    Is it valid?

    o Congress has a power to do it?

    o Supreme court enacted the rule within the authority granted to

    it by the rules enabling act

    Whether this rule is rationally classifiable as procedure

    If yes, its probably valid

    If everything passes, federal rule applies

    o The real question after Hanna is to figure out whether there is a conflict between the

    federal rule of civ pro and the competing state rule

    - Shady grove case summarizes everything you need to know about Erie

    o Scalia concludes that there is a conflictapplies federal rule

    o Ginsburg concludes no conflictErie analysis

    - Facts

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    o 2 competing rules

    Fed rule 23when you can bring a class action

    State rule CPLR 901b

    All requirement exactly the same

    Legislature copied rule 23 verbatim

    o Added additional wording

    If theres a statute that says if you dont receive

    insurance benefits in time, you received the money plus

    interest and penalty

    o Class action statute for NY says you cant recover and fed

    statute doesnt say anything about it

    Test

    Conflict between state and fed?

    o Scalia says yes

    Both laws looking to classify what acts as a class

    o Ginsburg says no

    Should try to reconcile fed and state competing claims

    No conflict, just an extra requirement

    Do an Erie analysis

    o She says its bound up in substance

    Is the federal rule valid?

    o Scalia says yesbrings in federal rule

    o ScaliaHanna analysis

    o Dissent

    Bc she doesnt find any conflict

    Erie Analysis

    3/24/14

    Erie/Hanna analysis

    - We are in SDNY

    - PNYer , DNJer

    - Diversity action

    - Choice of lawNY common law bc it happened there

    - Rules of decision act16 USC 1652

    o Fed courts gotta use law of the states

    - Policyprevent forum shopping / unfair administration of justice

    - Something I bound up in substance if it has a substantive aim, if it exists to influence substantive

    outcome

    Purpose of the legislature in an Erie analysisbound of substance

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    - Form in mode rules

    o Anything thats not substance or bound up in substance

    o Apply in federal law proceeding when its outcome determinative

    - Erierules of decision act question

    - Hannarules enabling act question

    Shady Grove

    - Justice Scalia

    o Says theres a conflictHanna analysisfederal rule

    o Acknowledges concurrent opinion but its too hard to administer

    - Justice Ginsburg

    o No conflictErie analysis

    Outcome determinative

    Forum shopping

    o State rule applies

    - Justice Stevens

    o Wants to change Hanna and add a third step

    Is the federal rule and state rule on point?

    Is the federal rule valid? (in sense that it covers procedure)

    Does the rule as applied in this particular case abridge, enlarge, or modify a

    substantive right?

    Chapter 8Discovery

    - Ways of getting information from people under the federal rules

    - Trying to get evidence together on off chance that theres a trial

    - Rule 26

    o Initial disclosure

    In fed court system, parties are required to hand over certain/basic things

    before discovery starts

    Name, address, phone numbers of people to likely to have information

    Copy of documents / electronically stored information

    Computation of damages

    o Events that precede the judges issuance of a scheduling order

    Schedu