Civil Procedure I - Abramowitcz - 2009_4.doc

8/20/2019 Civil Procedure I - Abramowitcz - 2009_4.doc

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PERSONAL JURISDICTION

• Constitutional basis: Due Process Clause (14th Amendment)

• Individual’s presence within the forum state

o Burnham v. Superior Court (US SC, 1990) Holding: tag jurisdiction service can be made on out of state resident

while voluntaril! in state "olic!: upholding traditional constitutional notions

#ervice on an airplane o$a! (Grace v. MacArthur )

• %omicile

o Milliken v. Meyer (US SC, 190)

Holding: %omicile is sufficient to assert &urisdiction

• Domicile= current delling !lace " intent to remain

inde#initel$

"olic!: % owes reci!rocal duties for privileges and protectionafforded b! state

• Consent

o "reviousl! filed suit

"' over individual who asserted a counterclaim in a previous lawsuit in

that forum

• A!am v. Saen"er (US SC, 19#$)

iling a lawsuit does not provide a sufficient basis for &urisdiction in a

later lawsuit against the original " concerning the same set of factsGi%%on& v. Bro'n (, 199$)

o orum selection clauses

Carnival Crui&e ine&, *nc. v. Shute (US, 1991)

• Holding: #orum%selection clauses will be upheld sub&ect to

&udicial scrutin! for *fundamental fairness+

• "olic!: cuts court costs for ever!one conserves resources b!

dispelling confusion,logical& negotia'le& con(enient (limiting fora)

o Are parties sophisticated-

.ot a contract of adhesion

o Rule )* +',+-,

If discoveree persists in his refusal to grant discover! then Rule )* +',

+-, allows the court a choice of coercive sanctions among others:• acts established: it ma! order that *the matters regarding

which the order was made or an! other designated facts shall be ta$en as established for the purposes of the action inaccordance with the claim of the part! obtaining the order+

o *n&urance Corp. o+ *relan! v. Compa"nie !e&

Bauite& !e Guinee (US, 19$-)

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Holding: even personal &urisdiction over % ma!

be ta$en to be established if % refuses tocompl! with a court order re/uiring him tofurnish discover! of facts related to thee0istence of such &urisdiction

o Cognovit "art! can waive right of notice and appearance

nl! granted when part! has read and understood it and received

something in e0change for signing ito Implied consent

o 2eneral appearance

• .on3resident motorist statutes

o .on3resident motorists involved in accidents are usuall! sub&ect to &urisdiction

b! act of operating vehicle within state

• ortuous acts committed within the state

• 5inimum Contacts est

• *nternational Shoe Co. v. a&hin"ton (US SC, 19/)

• Holding: in order to sub&ect % to &urisdiction if he is not present in

forum he must have certain minimum contacts with it such that themaintenance of the suit does not o##end traditional notions o# #air!la$ and su'stantial justice

• Contacts: sales solicitors in state

• A""6ICA768 I.%I9I%A6#

• "olic!: re&ects territorialit! re/uirement of Pennoyer in favor of

reasonableness recogni;es growing interstate commerce recogni;esreciprocal duties of companies to states

• 6imiting the 5C

• Mc"ee v. *nternational i+e *n&urance Co. (US SC, 19/)

• Insurance polic! written b! < compan! for CA resident

• Contacts: mailing of premiums assumption of obligation deceased

and " were CA residents witnesses offices and solicitation

• Holding: contacts sufficient for 5C

• % reac.ed into CA for business

o least contacts in #C histor!,none in3state

• "olic!: CA !rotecting its citi/ens• an&on v. 2enckla (US SC, 19/$)

• Holding: unilateral acti(it$ is not su##icient #or 0CT

o here was no purposeful availment

o nli$e McGee claims contacts were initiated b! settlor not %

• Absorbing =I>

• Sha++er v. eitner (US SC, 19)

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• ULTI0ATE CURTAIL0ENT O1 2UASI IN RE0

JURISDICTION

• ATTAC3ED PROPERT4 +PRECEDENT5

INTAN6I7LE, IS JUST ANOT3ER CONTACT

o STILL 0UST 7E ATTAC3ED T3OU63

• In rem &urisdiction still e0istso I> suits do not see$ to impose personal liabilit! on

an!one but instead see$ to affect the interests of persons in a specific thing

• S3OE APPLIES TO INDI8UALS AS 9ELL AS

CORPORTATIONS

• Holding: /uasi in rem &urisdiction over % could not be e0ercised

unless % had such minimum contacts with the forum state that in personam &urisdiction could be e0ercised over him under Shoe

• Attac.ed stoc:s onl$ ser(e as a contact

• 5C in domestic relations cases

• 3ulko v. Superior Court (US SC, 19$)

• Holding: !ermission to let children move to CA was not sufficient for

father to past 5C in CAo Contacts: nilateral activit! (daughter @A.8% to go)

temporar! visits or marriage in3state,not sufficient

• "olic!: even though CA had strong interest there was a statute

providing other methods for the wife to get pa!ment

• 8stablishing 5C via the Internet

• Coa&tal 4i!eo Communication& Corp. v. 5he Stay'ell Corp. (4A, 1999)

• Holding: remanded

• Contacts to consider: ;store #ront< ca!a'ilit$ o# e'site (advertising

soliciting sales customer service interaction,li$e having a sales repthere) maintenance of traditional business contacts in forum websiteinfo (sales to the state Bdollars percentage of total profit number of products customers number of sales) accessibilit! to forum state(hits etc)

• 8stablishing 5C in claims unrelated to in3state activit!

• 6erkin& v. Ben"uet Con&oli!ate! Minin" Co. (US, 19/-)

• Holding: president’s activities were continuous and s$stematic

enough as to e0ercise &urisdiction

• Contacts: office files board meetings salar! chec$s transactions

correspondence supervision polic!ma$ing ban$ accounts,discharged duties as president from H

• "olic!: fairness

• 8stablishing 5C for claims involving in3state purchases

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• elicoptero& 7actionale& !e Colom%ia, S.A. v. all (US SC, 19$)

• 3olding: wrongful death claims did not ;arise out o#ather it

is that %’s conduct and connection with the forum state are such that he shouldreasona'l$ antici!ate 'eing .ailed to court t.ere

• Ds !ur!osel$ a(ailed t.emsel(es o# no 'ene#its o# t.e #orum state

o .o cars were in&ected into that stream o# commerce

• if % made efforts to serve directl! or indirectl! the mar$et for its

products &urisdiction is o$a! but if it was an isolated and unilateraloccurrence then &urisdiction cannot be e0ercised

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o if user ta$es production into forum state it is not enough to

confer &urisdiction over manufacturer even if this wasforeseeable

• Awareness of sales in a foreign state

• A&ahi Metal *n!u&try Co. v. Superior Court (US SC, 19$)

• Holding: des!ite minimum contacts& it ould 'e unreasona'le and

un#air #or CA to .ear t.e case because of: the burden to Asahi ofdefending in a foreign legal s!stem the slenderness of CA’s and Cheng#hin’s interests in having the indemnit! claim heard in CA and thestrong federal and state interest in not creating foreign relations problems b! deciding an indemnit! claims between two foreign %s

• Reasona'leness: sufficient minimum contacts defeated b! violation of

traditional notions of fair pla! and substantial &usticeo Reasona'leness #actors 'urden on D& interests o# t.e

#orum state& P>s interest in o'taining relie#& interstate

judicial s$stem>s interest in o'taining t.e most e##icientresolution o# contro(ersies& and t.e s.ared interest o#se(eral States in #urt.ering su'stanti(e social !olicies

80ceptional case

• Court s!lit i# it is #oreseea'le t.at a gi(en !roduct ill 'e se!t in

t.e stream o# commerce into a s!eci#ic #orum does t.at satis#$

0CT in t.at state #or D?

• #uits based on a contractual relationship

• Bur"er 3in" Corp. v. :u!;e'ic; (US SC, 19$/)

• Holding: although the mere fact that one part! to the contract is a

resident of the forum state does not b! itself mean that the other part!has minimum contacts with that state t.e .ole contractualrelations.i! ma$ ell& in a !articular case& 'e su##icient to con#er

jurisdiction

• Choice3of3law clause: % signed contract with 7E to use 6 law,thus

he has availed himself of the benefits of that state’s lawo % was not surprised

o % was not sub&ect to fraud undue influence or overweening

bargaining power o >easonable anticipation of out3of3state litigation

• E@!licit endorsement o# aggregation o# contacts

• Creates to%!rong test 0CT 1P " SJ

• "olic!: predictabilit! fair warning

LON6%AR0 STATUTES

• hese limits are not re/uired b! the Constitution

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• 1RCP B+:,+,+A, in 'ot. di(ersit$ actions and #ederal uestion cases&

ser(ice o# !rocess ma$ 'e made onl$

o @ithin the territorial limits of the state in which the %istrict Court sits

>

o An!where else that the long3arm of the state where the %istrict Court

sits permits• #ervice out of state

o 1RCP B+:,+,+A, service outside the state where the %istrict Court

sits ma! be made if the law of that state so permits

• 1GG3mile bulge

o 1RCP B+:,+,+7, a special %mile 'ulge allows for out3of3state

services sometimes even if local law does not permit it @hen the provision applies it allows service an!where (even across a state boundar!) within a 1GG3mile radius of the federal courthouse wheresuit is pending he bulge provision applies onl! where out3of staterswill be brought in as additional parties to an alread! pending action

"ossible parties:

• T.ird%!art$ de#endants

• Necessar$ !arties

most federal courts seem to hold that % ma! be re/uired to

defend so long as he is reachable b! the long3arm of the statewhere service is made (ie *the bulge state+) even if he couldnot be reached according to the law of the state where thefederal suit is pending

• @here authori;ed b! federal statute

o 1RCP B+:,+,+C, provides for certain cases a nationwide service of

process ie parties sub&ect to interpleader &urisdiction

• oreign defendant not servable in an! state

o 1RCP B+:,+-, or a claim that arises under federal law,serving a

summons establishes personal &urisdiction over % if: +A, % is not sub&ect to &urisdiction in an! state court of general

&urisdiction A.% +7, 80ercising &urisdiction is consistent with # constitution

and laws aggregation o# contacts

•

if there is enough contacts within # as a whole then &urisdiction can be held in ever! state as long as itsconstitutionall! permissible

• In rem &urisdiction possible if allowed b! state 1RCP B+n,

• 2aps possible

o @hen personal service within the state the state long3arm 1GG mile

bulge special nationwide3service provision or 4($)(?) do not appl! 8ven if % has constitutionall!3re/uired minimum contacts


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NOTICE

• After determining that the part! has "',!ou must determine if notice was

constitutional and authori;ed b! statute

o >easonableness test (reasonable calculation) % does not actuall! have to learn of the suit what matters is that the

method used is reasonabl! li$el! to inform him Mullane v. Central anover Bank (US SC, 19/0)

• Holding:

o Notice is limited '$ considerations o# econom$ and

reasona'leness

"ublication is insufficient for those whose

names and addresses are $now

• 6ennoyer

"ublication is sufficient for those who are

un$nown or unlocatableo 6eneral reasona'leness in (ie o# all t.e

circumstances

Cost& im!ortance o# !roceedings& a(aila'ilit$

o# ot.er& 'etter noti#ication met.ods& etc

o Individual

#ummons and complaint included 1RCP B+c,+,

#ervice must be b! a non3part! over 1 1RCP B+c,+-,

"ersonal

• 7! serving him personall! 1RCP B+e,+-,+A, #ubstitute

• ften allowed b! mail

• 7! leaving summons and complaint at %’s residence with a

person of *suitable age and discretion+ residing there 1RCP B+e,+-,+7,

o Green v. in!&ey (US, 19$-)

Holding: eviction notices posted on doors of

tenant was not sufficient service because of thesubstantial ris$s of children tearing themdown,mail service should have been used,wasn’t reasonabl! calculated

Agent

• 7! serving a state official appointed or designated b! law to

receive process 1RCP B+e,+-,+C, 6ocal state law 1RCP B+e,+,

• b! serving % in the manner provided b! either

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1 the law of the state where the %istrict court sits if thatstate has such a provision >

? in the manner provided b! the law of the state where the person is being served

• oreign defendants 1RCP B+#,

o An! method allowed b! a particular international treat! (theHague Convention) or an! method allowed b! the countr!where service occurs can be used

o Corporation

o 5anner provided b! state where action is pending or where service is

made 1RCP B+.,+,+A,o #ervice on a corporation ma! be made b! leaving the papers with an

officer a managing or general agent or an! other agent authori;ed b!appointment or law to receive process for the corporation 1RCPB+.,+,+7,

o 5anner provided b! law of the state where action is pending or the

law of the state where service is made 1RCP B +.,+,+A,o #pecial rules for serving foreign corporations 1RCP B +.,

+-,

o @aiver of service

• 1RCP B +d,: allows " to in effect serve the summons and complaint

b! mail provided that the % cooperates Actuall! what " does is mail% a *re/uest for waiver of service+ if % agrees no actual in personservice is needed

"olic!: the rule gives % financial and other incentives to grant

to waiver re/uest "rocedure

• " sends notice that action is being commenced two

copies of waiver3of3service form a cop! of complaintand a prepaid return envelope 1RCP B +d,+,+C,

• he documents ma! be sent *b! first3class mail or other

reliable means+ 1RCP B +d,+,+6, %ate must be stated 1RCP B +d,+,+E,

ime to respond

• % has DG da!s to respond to re/uest for waiver (G for

foreign %) 1RCP B +d,+,+1, Incentives

• Additional time to answer o % gets G da!s following the date on which the

re/uest for waiver was sent in which to answerthe complaint (compared with ?G da!s fromservice process provided b! 1RCP -+a,F oreign %s get KG da!s

• % must pa! costs of service if he does not waive


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o he court must impose on % the e0penses later

incurred in ma$ing service and the costs of an!motion to collect those service e0penses1RCP B+d,+-,

Appl! onl! to # %s

@aiver of service does not waive personal &urisdiction or venue

1RCP B+d,+G,

o ime for service

• #ervice must be made within 1?G da!s after the filing of the complaint

1RCP B+m,

OPPORTUNIT4 TO 7E 3EARD

• 7efore propert! is ta$en % must be given a chance to defend against the claim

"re3&udgment remedies (protect " from % s/uandering assets before litigation

is over)

• ie attachment

hree part balancing test to determine whether due process was violated when

%’s propert! was interfered with through a pre3&udgment remed!1 Harm to %’s interest from pre3&udgment remed!? >is$s of erroneous deprivation of %’s propert! rights

o 8speciall! if additional procedural safeguards were not used

D #trength of interest of "o Connecticut v. 2oehr (US SC, 1991)

DE1ENSES TO CLAI0S O1 JURISDICTION

• #pecial appearance

o .ow 1RCP -+',+-, which allows % to ma$e a motion to dismiss for lac$ of

&urisdiction over the parties ma$ing this motion does not sub&ect % to the &urisdiction that he is protesting

• Collateral attac$

o If % defaults in an action in #tate 1 she ma! collaterall! attac$ the default

&udgment when it is sued upon in #tate ? 5ost commonl! % collaterall!attac$s the earlier &udgment on grounds that #tate 1 did not have personal &urisdiction over her or did not have valid sub&ect matter &urisdiction

8ENUE

• CONSIDER A1TER PJ AND SER8ICE

o 9enue locates &urisdiction within a particular district of a state

• 9enue in #tate action

o In state trials venue is determined b! statute

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9enue is generall! authori;ed based on where % resides or where the

cause of action arose orum non conveniens

• #tate ma! use its discretion not to hear the case in a count!

where there is statutor! venue

o It is the % who often moves to have a case dismissed ortransferred under .C

hree factors: (1) if " is a state resident (?) if

witnesses are more available elsewhere (D)whether forum’s own state laws will govern(transfer is more li$el! if the! do not)

6iper Aircra+t Co. v. :eyno (US SC, 19$1)

• Holding: the mere fact that the law of the

alternative forum is less favorable to " isordinaril! not b! itself grounds forden!ing %’s .C motion

o However if alt forum was *soclearl! inade/uate orunsatisfactor! that it is noremed! at all+ then theunfavorable change in law could be given substantial weight in.C decision

• 8enue in #ederal actions

o -H USC )+a,5DJ& +',512J

1 If an! % resides in that district and all %s reside in the state containingthat district

• >esidenceLdomicile

? If a *substantial part of the events or omissions giving rise to the claimoccurred or substantial parts of propert! that is the sub&ect of the action issituated,+ in the district

D If nowhere else where an! % can be found (sufficient 5C),catch allescape hatch

• 5ain utilit! of these escape hatches are for events where %s reside

in different states and the events occurred mostl! abroad

• Cor!orations (not businesses)

a!!l$ -H USC )+a,5DJ& +',512J

• -H USC ) +c, a corporation is a resident of an! district as to

which it would have minimum contacts necessar! to support "' if thatdistrict were a separate state

corporation will be a resident of at least where:

• it has its principle place of business

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• an! district where it has substantial operations

• probabl! an! district in its state of incorporation

corporation ma! be resident of more than one district

• interesting twist: if corp has residence in two districts

in two states and %? is resident in one of those statesthen %? could be brought in the out3of3state district inwhich %1 resides

• -H USC ) +d,5aliens

• an! alien ma! be sued in an! district of the nited #tates where he has

&urisdiction alien can be used to defeat subsection (1)

• forum selection clauses

• -H USC BB +a,federal venue transfer

• &udge has discretion

• burden is on the movant

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there or because venue would not have been proper there even the consent b! all %s wouldnot authori;e the action to be transferred to thatdistrict

• -H USC BB +c,

!ou can transfer divisions within a district• Choice of law

T.e state la o# t.e trans#eror court is to 'e a!!lied to t.e

trans#eree court

• 4an 2u&en v. Barrack (US SC, 19=)

• If % moves to transfer

• Polic$ % does not get bonus change of law for

changing courtrooms (forum3shopping) "maintains state law advantages from forum3selection privilege ma! indirectl! create forumshopping in "s ma! cause &udges to bedishonest when "’s abilit! to recover changes

• eren& v. >ohn 2eere Co. (US SC, 1990)

• If " moves to transfer

• -H USC BK+a,

• transfer to a district where it could have been brought when a suit is

brought in a district where venue is improper also if the court appl!ing BK decides it lac$s not onl! venue

but also personal &urisdiction the court ma! probabl!

nonetheless order the transfer here law of transferor court does not appl!

• above precedent is related to BB onl!

SU7JECT 0ATTER JURISDICTION

ALL 4OU NEED IS 1EDERAL 2UESTION JURISIDICTION OR DI8ERSIT4

JURISIDICTION TO 7RIN6 A 0ATTER INTO 1EDERAL COURT

• states have broader #5'

• concurrent &urisdiction,when states and federal courts can hear the same case

• Article III o# t.e Constitution,&udicial powers should e0tend too,

1 Arising under

• 8%8>A6 =8#I.

? AmbassadorsD Admiralt!4 # as a part!

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F ? states between a state and citi;ens of another stateJ between citi;ens of different states

• %I98>#IM

land grants

K alienage

:uhr"a&, AG v. Marathon


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• If state law creates the cause of action,no federal /uestion

&urisdictiono Smith e0ception ( Smith v. 3an&a& City 5itle ? 5ru&t

Co.) nless state law necessaril! implicates federal

law,federal /uestion &urisdiction 3olding Court held that the claim satisfied

arising3under &urisdiction since *thecontrovers! concerns the constitutional validit!of an act of Congress which is directl! drawn in/uestion his decision depends upon thedetermination of this issue+

• Merill 2o' e0ception to the e0ception

o nless Congress has a clear

intent not to create a federalcause of action (when state law

necessaril! implicates federallaw),no federal /uestion &urisdiction

o Antici!ation o# de#ense insu##icient

he federal /uestion must be part of a ;ell !leaded com!laint<

(minimum complaint)

• oui&ville ? 7a&hville :.:. v. Mottley

o #C held no =' e0isted because the federal statute was

not essential to "’s cause of action It is not sufficientthat the complaint mentions some anticipated defenseand asserts that the validit! of the defense is governed b! federal law

o 7ecause the constitutional meaning of *arising under+

is broader than its statutor! meaning the #C (operatingunder the broader constitutional definition) had &urisdiction to hear and decide Mottley the second timearound even though it previousl! decided that thedistrict court (operating under the narrower statutor!definition) did not have &urisdiction

o Claim 'ased on t.e merits

If "’s claim is clearl! based upon federal law it /ualifies for =' evenif it is invalid on the merits In this situation the federal court willdismiss for failure to state a claim on which relief ma! be granted(Rule -+',+K,) not for lac$ of #5'

• Insu'stantial claim: however if the *federal claim+ is clearl!

made solel! for the purpose of obtaining &urisdiction or is*wholl! insubstantial and frivolous+ the court will dismiss forlac$ of ='

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• Su!!lemental claims5signi#icance o# t$!e o# dismissal

selected #rom t.e - listed a'o(e

o As a matter of #5' the federal court can (though need

not) hear the state3created supplemental claim even if itdismisses the federal3law claim for failure under Rule

-+',+K, but it cant hear the supplemental claim if ithas no #5' over what is falsel! alleged to be the =claim

DI8ERSIT4 JURISDICTION

• Controversies between citi;ens of different states Article III& -H USC

))-+a,+,

o >ationale: attempting to defeat local pre&udice

• Amount in contro(ers$

o Onl$ in di(ersit$ cases

o 5ore than NJFGGG .ot based on &udgment but "’s good faith pleading that he could get

more than NJFGGG

• Interest not included

8ventual amount of recover! irrelevant

• 7ut federal court has discretion to den! costs to " and even to

impose costs on him if he recovers less than NJFGGG ))-+',o Aggregation of claims

Mou can aggregate claims of plaintiffs against one % in a cause of

action

• .o claim must e0ceed NJFGGG,&ust the aggregate does• Cannot aggregate claims against multiple %s

Aggregation b! multiple "s

• At least one " meets amount,o$a!

o #upplemental &urisdiction, @on

• .o single claim meets the amount,usuall! not o$a!

o 80ception: two or more "s unite to enforce a single title

or right in which the! have a common and undividedinterest

• #pecial rule for class actions

o

As long as one class rep meets the NJFGGGre/uirement the others do not have to,#' ( @on)o > class actions with NF million or more can forward

even if no individual meets the NJFGGG re/uirement))- +d,+-,

Counterclaims

• If " sues in federal court for less than the &urisdictional amount

and % counterclaims for an amount which (either b! itself or

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added to "’s claim) e0ceeds the &urisdictional amount probabl!the amount in controvers! re/uirement is not met

• >emoval b! %: if " originall! sues in state court for less than

NJFGGG and % tries to remove to federal court amount incontrovers! problems wor$ out as follows

o " removal: " ma! never remove even if %counterclaims against him for more than NJFGGG

o % removal: if % counterclaims for more than NJFGGG

but "’s original claim was for less than NJFGGG theresult depends on the t!pe of counterclaim If %’scounterclaim was permissive (under state law) allcourts agree that % ma! not remove If %’s claim wascompulsor! under state law courts are split aboutwhether % ma! remove

• %ate for determining

o At the time lawsuit is filed

o .o later change cannot create or defeat diversit!• Com!lete di(ersit$ is re/uired

o no plaintiff is a citi;en of the same state as an! defendant

Stra'%ri!"e v. Curti&& (Cranch, 1$0)

o 80ceptions not re/uiring complete &urisdiction Article III

Interpleader statute ))G+a,+,

High3sta$es class actions ))-+d,+-,+A,

• 5ore than NF million is involved

• "leadings not dispositive

o Court loo$s past pleadings and arranges parties to their real interests

.ominal parties ignored• Court ma! dismiss nominal parties

>epresentatives and administrators will generall! be treated as having

the citi;enship of the part! the! represent ))-+c,+-,

• >efusal to e0ercise &urisdiction

o Improper or collusive &oinder of parties

o %omestic relations is the main sub&ect matter

Anken%ran!t v. :ichar!& (US SC, 199-)

o @here probate matters are the essence of the suit

o @here *abstention doctrine+ is invo$ed,court’s doc$et is too congested

•

%omicile not residence is what countso 6ast place one has lived with an intent to remain

%omicile does not change unless one moves to a place in which he

intends to reside in indefinitel!,thus creating an anomal! in whichone ma! be domiciled in a place he no longer resides nor plans toreside in the future

• Ma& v. 6erry

o >esident alien,citi;en of whatever state domiciled ))-+a,

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• Alienage &urisdiction ))-+a,+-,

Citi;en of a state v alien,diversit! &urisdiction ))-+a,+-,

• # citi;ens domiciled abroad cannot sue on or be sued under

%',the! retain # citi;enship but lose state citi;enshipo @li;a%eth 5aylor

Alien v alien,no diversit! &urisdiction• oreign O # v oreign,no diversit! &urisdiction

>esident alien v non3resident alien,split courts

• 6iteral reading sa!s *!es+ ))-+a,& ))-+a,+-,

• 5ost courts sa! *no+,constitutional problems

o Congress did not intend to grant %' for suits in which

all parties are alien,probabl! unconstitutionalo Saa!eh v. arouki

3olding legislative intent,))-+a, limits %'

it does not e0pand %'

• # &udicial power does not e0tend under Art III to suits involving two aliens (b!constitutional definition not that of1DD?)

aliens and # citi;ens present on each side does not destro! %' as long

as # citi;ens from different states are in opposition ))-+a,+),

• %iversit! involving partnerships and corporations

o "artnerships unincorporated associations do not have a single state of

citi;enship ever! member counts Car!en v. Arkoma A&&ociate&

o Corporation is deemed a citi;en of an! state where it is incorporated and of

the state where it has its principle place of business ))-+c, .o adversar! in %' can be a citi;en of the state where it is

incorporated > where it has its principle place of business

• "rinciple place of business: (1) corporate head/uarters home

office > (?) where bul$ of activit! is

• %evices to create or destro! &urisdiction

o Improperl! or collusivel! &oined parties not allowed %' )G

Assignment of claims

• 3ramer v. Cari%%ean Mill&

o 3olding: assignment claim made solel! for the purpose

of creating &urisdiction thus ma$ing it improper andcollusive under )G and therefore %' was void

ailure to name indispensible parties

• %evices to defeat removal to federal court

o .o federal statute prohibiting improper or collusive &oinder to defeat

&urisdiction Assignment of part of claim

1J


18/70

• Courts are split on handling this

>emoval ma! not be defeated b! "’s &oinder of % as a part! against

whom no bonafide claim e0ists

• :o&e v. Giamatti

o 3olding removal to federal court is proper because %s

&oined b! " to defeat it are irrelevant 6ow dollar claim usuall! wor$s

• 5a$e the claim less than NJFGGG

SUPPLE0ENTAL JURISDICTION

• Additional claims and parties ma! be brought into a federal case without

independentl! satisf!ing sub&ect matter &urisdictional re/uirements once there is a basic controvers! as to which there is sub&ect matter &urisdiction

• 1KKG amendments added -H USC )K* which established the doctrine of

supplemental &urisdiction b! rewor$ing and combining two older &udge3madedoctrines ancillar! &urisdiction and pendent &urisdiction

o !endent jurisdiction

if a federal court had &urisdiction over a federal /uestion claim

between two parties it could sometimes ad&udicate a state3createdclaim between those same parties even though it would not have &urisdiction if the claim were brought separatel!

• used in situations .ere !arties ere citi/ens o# t.e same

state& so t.at di(ersit$ did not e@istF In such a situation "could gain a federal forum for her state3created claim b!lin$ing it to a federal /uestion claim provided that the twoclaims were sufficientl! closel! related to &ustif! use of the

pendant doctrine• 5ust be similar:

o Unite! Mine orker& v. Gi%%& (US SC, 19==)

3olding state and federal claims must *derive

from a common nucleus o# o!erati(e #act+and must be so closel! related that usuall! a "*would be e0pected to tr! them all in one &udicial proceeding+

• Initiall! perceived to mean that both

claims must arise out o# t.e same e(entor transaction

• Constitutional 'asiso ;common nucleus o# o!erati(e

#act<

o de#ining limitation #rom Article

III

• 1ederal common la5doctrine o#

discretion5district court ;ma$

1


19/70

dismiss< +a!!ellate court can still

re(ie #or a'use%o#%discretion,

o I# state%claim !redominates&

dismissing t.e state claim is

a!!ro!riate

o ;Predominates< "roof,facts

6aw,issues raised state

law is to be resolved b!state law

>emed!,if remed! is

much greater for state lawclaim

• I# #ederal claim is dismissed 'e#ore

trial& t.en t.e state claim must 'e

dismissed as ell

o 7ut if &ur! finds for " on stateclaim and % on federal claim,we do not dismiss state claim

@e don’t need to do the

trial again

• I# e .a(e a #ederal claim and a ;state

claim t.atM is closel$ tied to #ederal

!olic$< e must :ee! t.e claims

toget.er in #ederal court +e(en i# t.estate la claim is !reem!ti(e o# t.e

de#ense,

Pendent !art$ jurisdiction

Additional part! against whom the state3law claim was

brought but who was not a % to the federal3law claim could be made to defend the state3law claim in federal court eventhough she was not a % to an! federal3law and thus was not a% to an! claim for which there was independent federal #'5

• riginall! restricted b! case law in inlay

• Additional parties to the state3law claim could

onl! be brought in if Congress affirmativel!indicated that it wanted those parties brought in

• However #' reversed this 33 new parties ma! be

brought in to defend against the state3law claims eventhough the! don’t independentl! satisf! #'5re/uirements

• Ancillar$ jurisdiction

• 6ine between this and pendent &urisdiction as alwa!s somewhat blurr!

1K


20/70

• sed in cases where there was di(ersit$ jurisdiction for at least one

claim between one " and one % and additional !arties or additionalclaims were sought to be &oined to that *core+ claim 5ostl! A' has been used to give the federal courts &urisdiction over certain t!pes ofclaims made b! !arties ot.er t.an t.e !lainti## claims as to which

there would not be independent federal #'5 because of either lac$ ofdiversit! or failure to meet the amount in controvers!

ie cross%claims between defendants

note: AJ eliminates amount in contro(ers$ reuirement

generall$ not alloed #or Ps

•


21/70

7asicall! codifies pendent &urisdiction concept

3oe(er& o(erturns restrictions im!osed '$ inley

• e$ !art o# t.e rule

• 7roader jurisdiction no restrictions

•;joinder5additional !arties<

'F e0cludes claims and parties in di(ersit$%onl$ matters

• 9E 0UST 3A8E CO0PLETE DI8ERSIT4 1OR ALL CLAI0S

INITIALL4 1ILIN6 TO6ET3ER ))-

• T3E SU7TRACTIONS5t.e test #or alloing SJ

Su'tract i# +must meet ALL reuirements to NOT 'e

alloed SJ,:

• %iversit!3onl! case

• Claim b! "

• Against third3part! % under >C" 141K?G?4

• Claim against someone added after beginning

and not as a "

• inconsistent with diversit! re/uirements

• Citi;enship and amount in controvers!

• corresponds to A'

• essentiall$ codi#ies


22/70

• #' also does not appl! in diversit!3onl! cases for claims

b! "s against parties *permissivel!+ &oined as %s pursuant to >ule ?G

• Claims '$ Rule - Ps not e@cluded

•

Here 1DJ does not bar #' Inter(ention

• Claims b! prospective "s who tr! to intervene under

>ule ?4 do no get the benefit of #'

• Claims still alloed

Com!ulsor$ counterclaims

• >ule 1D compulsor! counterclaims

Additional !arties to com!ulsor$ counterclaims

• >ule 1D (h) &oinder of additional parties to compulsor!

counterclaims

0ulti!le Ps joined under Rule -

• 5ultiple "s who &oin together under >ule ?G’s

*permissive &oinder+ provision

• #' applies for amount3in3controvers! purposes

(the sum of the claim must be over NJFGGG noteach %’s claim) but does not appl! so as toremove the re/uirement of complete diversit!

Class action Ps

• 'oinder of "s for >ule ?D class actions based on

diversit!

• If one or more "s meet diversit! and amount in

controvers! re/uirements the unnamed "s don’tneed to meet these re/uirements because the!fall within the court’s #'

Cross%claims

• >ule 1D(g) cross claims

• ie claims b! one % against another

Im!leader

• >ule 14 impleader of third3part! %s (for claims b! and

against third part! "s and claims b! third3part! %s butnot claims b! the original " against third3part! %s)

• Aggregation to satis#$ t.e amount in contro(ers$ +t.e Allapattah

case5US SC,

=uestion:

• @hether in a diversit! case "s who did not

individuall! meet the amount in controvers!

??


23/70

re/uirement could use #' to &oin together permissivel!with one or more "s who did not meet the re/uirement

• #C answered this /uestion affirmativel! b! a F34 vote

in @on Mo%ile Corp. v. Allapattah Service&, *nc.

• Court held that one " could ride another’s coattails as to

amount3in controvers! in two scenarios:1 he "s &oin permissivel! under >C" ?G? "s are members of a " class action under >C"

?D

• @on Mo%ile Corp. v. Allapattah Service&, *nc.

• 3olding when the well3pleaded complaint contains at least one claim

b! a re!resentati(e o# t.e class that satisfies the amount3in3controvers! re/uirement and there are no other relevant &urisdictionaldefects the district court has original &urisdiction over that claim

• .o other &urisdictional defects: complete diversit! present

single *case or controvers!+• *if court has original &urisdiction over a single claim in the

complaint it has original &urisdiction over a Pcivil action’within the meaning 1DJ(a) even if the civil action over whichit has &urisdiction comprises fewer claims than were includedin the complaint

0ajorit$

1DJ re&ected Zahn

• Zahn

• 8ach class member has to meet the amount in

controvers!• #econd rule

• nl! class rep must meet diversit! of citi;en

re/uirement

• >e&ected:

• Indi(isi'ilit$ t.eor$,under which the district court would be

deemed to have ' over a CA onl! if the court had ' overever! claim in the complaint 5a&orit! felt as though this wasinconsistent with #'

• Contamination t.eor$,b! which the inclusion of a claim or

part! falling outside the district court’s original &urisdiction(destro!s complete diversit!) somehow contaminates ever!other claim in the complaint depriving the court of original &urisdiction over an! of these claims

• 0ig.t .a(e merit .en used to justi#$ t.e reuirement

o# com!lete di(ersit$

• " (5d),state 1GG$,% (9a)

= (9a),state 1GG$,% (9a)

?D


24/70

o .o &urisdiction over either claim because there is

not com!lete di(ersit$

• >e/uirement is designed to ensure that the dispute

is sufficientl! important to justi#$ a #ederal%court#orum5#airness

• However ;t.e !resence o# a claim t.at #allss.ort o# t.e minimum amount in contro(ers$

does not.ing to reduce t.e im!ortance o# t.e

claims t.at do meet t.is reuirement<

• Does not .a(e merit .en used to justi#$ t.e reuirement

o# amount in contro(ers$5onl$ named mem'er .as to

meet t.e amount in contro(ers$

• Class rep (esolved in favor of continuit!

o 5a&orit! read statute too broadl!

• Signi#icance

?4


25/70

o Narro !iece o# statutor$ inter!retationF It esta'lis.es merel$ t.at Rule

- co%Ps and Rule -) unnamed P class mem'ers can use SJ to get around

amount%in%contro(ers$ !ro'lems in di(ersit$%onl$ cases& as long as one

Rule - co%P or one Rule -) named class mem'er +o#ten t.e class re!F,

does meet t.e jurisdictional amountF

o Does not dis!ense it. com!lete di(ersit$• Discretionar$ rejection o# SJ )K*+c,

• 8ssentiall! codifies Gi%%&,giving district courts discretion o(er t.e state

claim

F he claim raises a no(el or com!le@ issue o# State la

-F he claim su'stantiall$ !redominates over the claim or claims overwhich Bthe district court has original &urisdiction >

• #tate claim ma! be dismissed

)F he district court has dismissed all claims o(er .ic. it .as original jurisdiction

• ne especiall! important factor here is time,the later the

dismissal the better the chance of the court $eeping the claim

• H!potheticall! the district court could still hear a state claim even

though a federal claim was dismissed before trial

• "olic!: &udicial econom! fairness to "

o .o reason to start all over in state court

BF In e0ceptional circumstances there are other compelling reasons fordeclining &urisdiction

• rare

o 0ust #all into o# t.e B classes in order #or t.e court to dismiss

o he *e0ceptional circumstances+ catch3all

"rovides some fle0ibilit! but the court has to carefull!

&ustif! a dismissal based on the catch3all

o No e##ect on !ersonal jurisdiction

o PJ and ser(ice still reuired5SJ s!ea:s onl$ to SJ0

RE0O8AL JURISDICTION

• Mou can onl! remove from state to federal . federal to state• 6enerall$& an$ action 'roug.t in state court o# .ic. #ederal courts ould .a(e

.ad original jurisdiction ma$ 'e remo(ed '$ D to #ederal district court

o E@ce!tion

In di(ersit$%onl$ cases the action is removable onl$ i# no D is a

citi/en o# t.e state in .ic. t.e action as 'roug.t

BB+',

?F


26/70

• Rationale:

o %' concerns out3of3state 'ias here removal would not

defeat out3of3state bias

• Remo(al statute BB

o @hen a case is removed it passes to t.e district court o# t.e US #or t.e

district and di(ision o# t.e !lace .ere t.e stateM action is !endingF onl!cases which could originall$ .a(e 'een 'roug.t in t.e #ederal courts ma! be removed BB+a,

Mou must anal!;e original jurisdiction

= cases ma! be removed regardless o# citi/ens.i! or residence o#

t.e !arties BB+',

In di(ersit$%onl$ cases& i# D is a citi/en o# #orum state& t.en

remo(al is im!ro!er BB+',

• therwise it is fine

• 80ception

o

Class actions >emoval is allowed even if one or more %s are

citi;ens of the state where the action wasoriginall! filed BG)+',

@henever a se!arate and inde!endent claim or cause of action

within the Bcourt’s federal /uestion &urisdiction, is &oined with oneor more otherwise non3removable claims the entire case ma! beremoved and the district court ma! determine all issues thereinBB+c,

• Rules o# original jurisdiction a!!l$ to remo(al jurisdiction

o 12J

= must be in ell%!leaded com!laint

• Caterpillar, *nc. v. illiam& (US SC)

o "’s claim contained a state law claim and the defense

would contain a federal claim Court held that casecould not be removed to federal court on claim not in"’s well3pleaded complaint

o E@ce!tion to t.e ;ell%!leaded com!laint< rule

Com!lete !re%em!tion

• If pre3emption is so clear that court will

interpret the complaint according tofederal law (as opposed to the state law being put forth)

• Le(els o# !re%em!tion

o No !reem!tion

#ta!s in state court

o Pre%em!tion

#ta!s in state court might

be heard to federal court

?


27/70

o Com!lete !reem!tion

Can be heard in federal

courto DJ

Com!lete di(ersit$ o# citi/ens.i!

• 80cept in interpleader suits and class actions involving morethan NF million

Amount in contro(ers$

o Caterpillar, *nc. v. e'i& (US SC)

Claim wrongl! removed to federal court because it did not have

complete diversit! Complete diversit! established b! the time of &udgment Court held that the case &udgment stands despite the defecton pragmatic considerations (general efficienc! will sometimes trumpfairness) of &udicial econom! and the fact this mista$e of removal willnot happen to often (&udges are smart and honest)

federal &urisdiction predicated on diversit! of citi;enship can be

sustained even if there does not e0ist complete diversit! at the time ofremoval to federal court so long as complete diversit! e0ists at thetime the district court enters &udgment

• Remo(al not alloed '$ P BB+a,

o onl$ D+s, can remove

• S!ecial alloances #or remo(al BB-

o ederal officers or agencies sued or prosecuted BB-

o Class Action airness Act BG)

o #ecurities 6itigation niform #tandards Act of 1KK **!+',

• Certain :inds o# cases not remo(a'leo 6imitation reflects Congress’ desire to give certain $inds of "s an a'solute

c.oice o# #orum which cannot be frustrated b! %’s removal ie ederal 8mplo!ers’ 6iabilit! Act and suits under state wor$ers’

compensation laws BBG all other claims listed in BBG

• A #oreign state can remo(e to #ederal court BB+d,

• T.e #act t.at t.e state court did not .a(e jurisdiction does not !re(ent D #rom

remo(ing to #ederal court BB+e,

• Pleadings not !ierced

o

he right of removal is generall! decided #rom t.e #ace o# t.e !leadingshe &urisdictional allegations of !lainti##>s com!laint control 'urisdictional allegations are viewed as o# t.e time t.e notice o#

remo(al is #iled

• C.ange in status

o If " amends complaint later and creates the opportunit!

for removal it can be removed

?J


28/70

o However " cannot ta$e later action in order to defeat

removalo E@ce!tion #or di(ersit$ cases

%iversit! cases present an e0ception to the rule

that removabilit! is determined as of the time

when the notice of removal is filed Indi(ersit$ cases& di(ersit$ must e@ist at t.e

time o# #iling t.e original action AND at t.e

time o# notice remo(al +unless P .as dro!!ed

a !art$ .o .ad destro$ed di(ersit$,

• Rationale: prevent % from ac/uiring a

new domicile after commencement ofthe suit and then removing on the basisof diversit! 7ut as noted above if "drops a non3diverse part! And diversit!e0ists with respect to the remaining

parties the action ma! be removed• " is the ;master o# .is claim&< if he chooses not to assert a

federal claim even though one is available to him % ma! notremove

• Remo(al o# multi!le claims

o BB+c,5!arallels )K*+c, some.at +not same on relatedness,

*whenever a se!arate and inde!endent claim or cause of action

within the #ederal uestionM jurisdiction,is joined it. one ormore ot.erise non%remo(a'le claims or causes o# action& t.e

entire case ma$ 'e remo(ed and t.e district court ma$ determine

all issues t.erein& or& in its discretion& ma$ remanded all matters in

.ic. State la !redominatesF<

• NOT a(aila'le in di(ersit$ cases

o Tactic #or P

" who wants to defeat diversit! has a potential

weapon: as long as some additional claim can befound that will bring in a non3diverse part! andthe &oinder rules of the state are liberal enoughto allow that claim to be &oined " can defeatdiversit!

• 1ederal uestion cases

o

>emoval does appl! where one of the *separate andindependent+ claims is based on #ederal uestion jurisdiction

Pro'a'l$ unnecessar$

• However 1441(c) is probabl!

unnecessar! in most of the ver! =situations where it is usable It willalmost alwa!s be the case that the

?


29/70

court’s 1DJ #' will appl! if so 1441(c)does not need to be used at all

Com!letel$ unrelated claims

• f course if the state3law claim was

com!letel$ unrelated to the = claim

then there would not be #' and 1441(c)might seem to be both applicable anduseful 7ut in this situation it is notclear that as a constitutional matter thecourt could hear the state3law casean!wa! (since the constitutional basisfor supplemental &urisdiction is that thetwo claims arise from a *commonnucleus of operative fact+)

• Remand

o In the relativel! rare instance where % actuall! relies on

BB+c,& " ma$ score a partial victor! b! getting thestate claim sent bac$ to state court

OR .e ma$ not5de!ending on one>s reading

• ;all matters<

o %istrict court ;ma$ determine all issues t.erein& or in

its discretion& ma$ remand all matters in .ic. State

la !redominates<

o Some courts e(en .old t.at judges can remand

#ederal claim i# state la dominates t.e matter

• Remand

o If federal &udge concludes that the removal did not satisf! the statutor!

re/uirements he must remand the case (all claims) to the state court fromwhich it came BB*+c,

o Case ma$ 'e remanded at an$ time during t.e trial #or a lac: o# S0J

BB*+c,

o Cases can be remanded for defects in removal procedure within DG da!s of

receipt in district court BB*+c,

• Discretion to remand

o ederal court also has discretion to remand to the state courts if a

federal trial case would be &urisdictionall! proper but unwiseo his is most li$el! to happen if a = claim and a supplemental state

claim are both removed and the federal claim is dismissed before trial Carne"ieMellon Univ. v. Cohill

o Codified under )K*+c,+),

o %ecision to remand is not a!!eala'le BB*+d,

Rationale prevent frivolous removal "revent dela!

T.ere are some e@treme circumstances .ere t.e district

court ma$ re(ie it on rit o# mandamus

• 9ai(er

?K


30/70

o % ma! be held to have ai(ed his right of removal if he ta$es e0tensive

action on the merits in state court 7ut federal &udges have usuall! beenreluctant to find such a waiver even in cases where % did such things asta$ing depositions in the state suit

• 0ec.anics o# remo(al USC BBK%BG

o 1iling

• % must usuall! filed for removal within ) da$s of the time he

receives service of the summons and complaintBBK+',

• Amended com!laints BBK+',

• % must usuall! filed for removal within ) da$s of the time he

receives of receipt of an amended com!laint t.at #irstre(eals t.e !ossi'ilit$ o# #ederal jurisdiction

• Di(ersit$%onl$ cases BBK+',

• 5ust ta$e place within one !ear from filing of lawsuit

(commencement)o #o % does not get a new residence

o 9.ere #iled

• % files b! submitting to the district court a ;notice o# remo(al


31/70

• Permissi(e counterclaim )+',

o Allows assertion as a counterclaim at %’s discretion of *an! claim that is not

com!ulsor$+o .o claim is far too removed from the sub&ect of "’s claim to be allowed as a

counterclaim here are e0ceptions,listed below

• Com!ulsor$ counterclaim )+a,

o wo re/uirements

F It *arises out o# t.e transaction or occurrence t.at is t.e su'jectmatter o# t.e o!!osing !art$>s claim5


32/70

• If % has asserted a counterclaim (whether compulsor! or

permissive) and " neglects either to serve a repl! or to move againstthe counterclaim a de#ault judgment ma! be entered against " onthe counterclaim Rule GG+d,

o Polic$

• A(oid multi!le litigations• Allo #or consolidation

• ;Transaction or occurrence<

o no defined meaning in the courts

o if claim is logicall$ related

• same aggregate of operative facts

o rule o# t.um'

• man! courts are especiall! interested in whether there is a substantial

amount of e(idence that bears upon both the claim and thecounterclaim and which would therefore have to be considered

twice if the counterclaim were not allowedo Polic$ &udicial econom!

• Counterclaims '$ t.ird !arties

o An$ !art$ ma$ ma:e a claim against ;an o!!osing !art$< Rule )+a,&

)+',

• T.ird%!art$ D

hird3part! % ma! counterclaim against either the original %

or against the original " (In the latter case a claim b! "against the third3part! % must first have been made)

• P>s counterclaim

" could have a compulsor! *counter3counterclaim+o >egardless of whether %’s claim was compulsor! or

permissive

• Ne !arties

.ew parties to a counterclaim can be brought into a suit as

long as the &oinder test of either >ule 1K or >ule ?G is satisfiedRule )+.,

• Cross%claims

• Are not counterclaims,cross3claims are never compulsor!

•1ailure to raise a com!ulsor$ counterclaim

o 2enerall! #ore(er 'arred #rom suing on t.at claim in anot.er #ederal

action

7asis for rule unclear

6enienc!

• In cases of hardship where part! was not at the time of the

first suit aware that he had a compulsor! counterclaim the

D?


33/70

federal courts have been lenient in waiving the bar againstsubse/uent assertion of the claim in a new action

o .eed for lenienc! is less pressing because of

amendment Amendment Rule )+#,

• Court ma! grant leave to a part! who has overloo$ed acompulsor! counterclaim to assert that counterclaim b!amendment during the original action after the trial has begun

• Jurisdictional reuirements #or counterclaims

o SJ

A com!ulsor$ counterclaim to a federal action is o#ten times

within the federal court’s SJ )K*+a,

• I# claim is in t.e ;same transaction or occurrence< it is

in t.e same ;common nucleus o# o!erati(e #act<

Permissi(e counterclaims not su!!lemental

• A PC ill !ro'a'l$ NOT 'e it.in a court>s SJ& and

must t.ere#ore satis#$ t.e reuirements o# #ederal SJ0hus a "C ma! not be used to &oin a third3part! who is ofthe same citi;enship as the part! asserting the counterclaimagainst him #imilarl! it is generall! held that a "C mustindependentl! e0ceed the amount in controvers!re/uirement

• Pleading o# counterclaims

o "art! raising a counterclaim is a plaintiff and his opponent a defendant for

the purposes of that claim >ule of pleading correspond to those for

ordinar! "’s claim and an ordinar! %’s claim Rule H+a,• Statutes o# limitations #or counterclaims

o If "’s complaint is timel! but %’s counterclaim would be barred b! the

statute of limitations ma! % assert the counterclaim-o State rule

Common law precedent: counterclaims arising from the same

transaction as "’s claim ma! be asserted as defenses against an!timel! claim but ma! not !ield an affirmative recover! Acounterclaim not arising from the transaction on which " suesmust generall! be timel! on its own

o 1ederal di(ersit$ cases

@here the case is a #ederal one based on di(ersit$ %’s right to bring an arguabl! time3barred counterclaim will depend in part onwhether the statute of limitations ran before or after " brought thecase

• Time 'arred .en P sued

o % not allowed to assert counterclaim as a means of

affirmative recover! but might be able to use it as adefense

DD


34/70

6imited use is far more li$el! if CC is

compulsor! rather than permissiveo 1ederal uestion cases

#tate law become irrelevant

#ame as diversit!

• 6lant v. Bla;er inancial Service& (/th Cir.)

o " suing % on a truth3in3lending cause of action Court held that an action

on the underl!ing debt in fault is a compulsor! counterclaim that must beasserted b! % Court concluded that the obvious interrelationship of claimsand rights of parties coupled with the common factual basis of the claimsdemonstrates a logical relationship between the claim and counterclaim

Strategies #or D +in general,

• Cost,&udicial econom!

• Higher costs for ",drop case-

•

6owered "’s &udgment• &ur! ma! be more s!mpathetic

P is arguing t.at t.is is not and D is arguing t.at is a

com!ulsor$5'ecause i# it ere com!ulsor$ t.ere ould 'e

it.in ancillar$ jurisdiction

• 7ad for %,use it or lose it

• 2ood for %s,#' if compulsor!

;Transaction or occurrence<

• factors leading to broad definition,ma$e it compulsor!

o &udicial econom!,rele(ant toda$

concerning all &udges

o fairness

!ou should be able to sue bac$ to reduce

• factors leading to narrow definition,ma$e it permissive

o #ederal courts s.ould not .a(e role in state

claimsQ #ederal or:load5rele(ant toda$

o private enforcement scheme

JOINDER

• first e0amine the parties being &oined to the suit

• then e0amine the claims being added to the suit

• Relations.i! 'eteen joinder and jurisdiction

o T3E4 ARE SEPARATE

JOINDER O1 CLAI0S

• Rule H+a,

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• *a part! asserting a claim counter3claim cross3claim or third3part! claim

ma! &oin as independent or alternative claims as man! claims as it hasagainst an opposing part!+

• once a !art$ .as made a claim against some ot.er !art$& .e ma$ t.en

ma:e an$ ot.er claim .e is.es against t.at !art$

• Ne(er reuired

o 'oinder of claims is never re/uired b! >ule 1(a) but is left at the claimant’s

option However the rules of res &udicata particularl! the rule againstsplitting a cause of action will often as a practical matter induce the claimantto &oin claims

• Su'ject 0atter jurisdiction is not a##ected

o Rule H+a, does not a##ect t.e reuirements o# S0J& .ic. must 'e

inde!endentl$ satis#ied '$ t.e joined claimF T.at is& SJ ill generall$ not.a(e to 'e a!!lied to a claim joined it. anot.er under Rule H+a,F

• Not usuall$ restricti(e

o As a practical matter the #'5 re/uirements will not usuall! impede the use of

Rule H+a,

Di(ersit$

• %iversit! is not affected generall! b! >ule 1(a) &oinder of

claims because no new parties are added when >ule is used Amount in contro(ers$

• Aggregation of claims is possible to satisf! &urisdictional

amount aggregation of all claims b! a given plaintiff against agiven defendant is allowed

SJ

• However if the initial claim against a particular % is itself possible onl! because of the court’s #' there ma! be &urisdictional problems with &oinder of other claims

o Ie: suppose %’s claim against < is worth less than

NJFGGG and is allowed onl! because the counterclaimwas compulsor! and therefore within the court’s &urisdiction An additional claim against ule 1(a)

1ederal uestion claim

• If the original claim against a particular % was a = claim a

non%#ederal claim could not 'e joined under H+a,& unlesseit.er di(ersit$ e@ists& or t.e to claims are closel$ related

so t.at t.e doctrine o# SJ +#ormerl$ called !endent

jurisdiction in t.is conte@t, a!!lies

JOINDER O1 PARTIES

• Rationale &udicial econom!

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o "romote trial convenience prevent multiple trials

Permissi(e joinder

• Rule -

o Allows " in certain circumstances to

+a, &oin other "s with himself or +', to ma$e several parties co3defendants to his claim

• If the option e0ists " ma! use it but does not have to

o Reuirements Rule -+a,

F he claims #or relie# must arise #rom a single& ;transaction&occurrence& or series o# transactions or occurrences+ AND

-F here must be a /uestion o# la or #act common to all !arties whichwill arise in action

o Polic$

5a! have to anticipate merits,what evidence will be brought

Individuali;ed evaluation

o Test

Logical relation or common e(idence

o Common uestion must 'e o# su'stantial im!ortance to all Ps

o Eac. P must 'e (oluntar$

o Joinder o# Ds

#ame two3prong test

At "’s option

o Judicial Discretion Rule -+',

Court has considerable discretion in arranging proceedings so as not to

causes undue inconvenience or pre&udice to an! part! (eg separate

trials)

• Jurisdiction in !ermissi(e joinder cases

o All "' re/uirements must be met for all %s

o All #'5 re/uirements must be met for all "s and %s

SJ generall$ does not a!!l$ to Rule - joinder o# multi!le Ds

SJ !artiall$ a!!lies to Rule - joinder o# multi!le Ps

• ften prove fatal to >ule ?G &oinder

o Complete diversit! must be met

o 5ultiple "s are permitted to aggregate their claims to meet the &urisdictional

amount if at least one name named " meets the amount @on

8ach % must have claims against him e/ual to the &urisdictional

amounto 9enue must be met

8asier wa! to do this is bring suit in a district where substantial part of

the events occurred

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• Mo&ley v. General Motor& Corp. ($th Cir.)

o "s (females men and women minorities) suing % (25) on discrimination

claims Claims for relief arise of out the same transactionToccurrence andthere is a common /uestion of lawTfact herefore the court reverseddisallowance of &oinder b! lower court and remanded

Strateg$ #or P +in general,• 5a$es 25 loo$ bad

• 7roaden claim as *emplo!ment discrimination+ rather than

*race discrimination+ and *se0 discrimination+o Common law or fact

CO0PULSOR4 JOINDER

• Rule

o In certain cases must be &oined if it would prevent uneconomical or unfair

litigation

5emple v. Synthe& (US SC)• Court held that patient (") did not have to &oin negligence

claim against doctor when suing manufacturer in negligencecase Court reasoned that a tortfeasor with the usual &oint3and3several liabilit! is merel! a permissive part! to an actionagainst another with li$e liabilit!

o To categories

;Necessar$< !arties

• parties whose &oinder if possible is re/uired b! Rule +a,

;Indis!ensa'le< !arties

• parties who are so vital that if their &oinder is impossible the

court will consider factors to determine if the whole actionmust be dropped Rule +',

o Necessar$ !arties +a,

5ust be &oined if #easi'le (1) service can be validl! made on them

and (?) their &oinder would not destro! diversit! o be a necessar! part! a person must meet .8 of the following two tests:

• Incom!lete relie#

o *in that person’s absence the court cannot accord

complete relief among e0isting parties++a,+,+A,

•

Im!aired interesto A &udgment in the person’s absence will either

(1) as a practical matter impair an interest the person has or

• A'sent !art$>s rig.ts

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(?) impose on some of the e0isting parties*double multiple or otherwise inconsistentobligations+ +a,+,+7,

• Inconsistent o'ligation #or de#endant

!art$5inconsistent judgments

• 2enerall! comes up when there is ?in&unctions

o ",%1 A.% ",%?

o Indis!ensi'le !arties

o Assuming absentee meets t.e to tests a'o(e +incom!lete relie#&

a'sentee !art$>s rig.tsQinconsistent judgments, the court considersadditional #actors to determine whether the claim should bediscontinued if &oinder is not possible +',

Prejudice

• 80tent of pre&udice to the absentee or to those alread!

parties 1raming o# judgment

• the possibilit! of framing the &udgment so as to mitigate

such pre&udice adeuac$ o# remed$

• the ade/uac! of remed! that can be granted in his

absence result o# dismissal

• whether " will have an ade/uate remed! if the action is

dismissed alternati(e #orums

o el;%er" v. 4alley e&t ($th Cir.) H (") sued 9@ (%) for breach of contract in bringing in

another &ewelr! store to mall Court held that cases could not be dismissed on grounds that new store was indispensable andnot sub&ect to "' Court reasoned that a person does not become indispensible to an action to determine right under acontract simpl! because that person’s rights or obligationsunder an entirel$ se!arate contract will be affected b! theresult of the action 8ssentiall! it is 9@’s fault for enteringinto two conflicting contracts

• #ome ma! argue it is a wrong decision because:

o Inconsistent &udgmento Alternative forums

o Jurisdictional o'stacles

o "' #5' and venue must all be e0amined

mile 'ulge

o (ariet$ o# di##iculties

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his presence would destro! diversit! since he is a citi;en of the

same state as one " and there is no federal /uestion the claim against him does not meet the amount in controvers!

re/uirement he is be!ond the personal &urisdiction of the court because the

local long3arm would not reach him (since the local long3arm iswhat is relied on in diversit! suits)

o SJ

If person who is sought to be &oined as % under >ule 1K(a) is

not diverse with all "s or if the claim against him does notmeet the amount in controvers! re/uirement the doctrine of #'does NOT appl! to overcome these defects herefore &oinedr will not be allowed in this situation )K*+',

T3IRD%PART4 PRACTICE +I0PLEADER,

Rule B+a,

• % alleging that a third person is lia'le to .im for all or part of "’s claim against %

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o Assuming that the state law claim provides for

indemnification etc

• Lea(e o# court not needed if original % serves third3part! summons and complaint

upon the third3part! % within da$s of the time the original % served his answer to"’s claim

o A#ter da$s !ermission to im!lead it necessar$• 1actors considered in granting im!leader

o 'udicial econom!

o @hether part! see$ing to implead deliberatel! dela!ed or was derelict in filing

the impleader motiono @hether impleading would undul! dela! or complicate the trial

o @hether impleading would pre&udice the third3part! %

• Im!leader '$ P

o " against whom a counterclaim is filed ma! implead a third person who is

liable to him for the counterclaim Rule B+',

•

Jurisdictional reuirements rela@edo 7oth "' and #'5

o "'

%mile 'ulge Rule B+:,+,+7,

o #'

A third3part! claim falls within the court’s SJ

• As long as there is %' or =' between the original parties

o 9enue

As long as proper between original parties

.68## great inconvenience to third3part! % the court ma! refuse

impleader

• Claims in(ol(ing t.ird%!art$ D

o Rule B+a,+-, allos t.ird%!art$ D to ma:e certain claims

Counterclaims against third3part! "

Cross3claims against third3part! "

An! claim against original " or third3part! " *arising out of the

transaction or occurrence that is the sub&ect matter of "’s claim againstthe third3part! "

An! counterclaim against original " if original " has made a claim

against third3part! %

B+a,+G, Impleader claims against persons not previousl! part of thesuit if these persons ma! be liable to the third3part! % for all or part of the third3part! "’s claim against him

o All a'o(e claims #all it.in SJ

no #ear o# collusion

o De#enses

%efenses against both the original " B+a,+-,+A,

• and third3part! " can be made B+a,+-,+7,

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o Claims '$ original P

original " ma! *assert against the third3part! % an! claim arising out

of the transaction or occurrence that is the sub&ect matter of the "’sclaim against the third3part "+ Rule B+a,+),

• does NOT #all it.in SJ and t.us must inde!endentl$

satis#$ jurisdictional reuirementso disallowing collusion

• not re/uired to meet venue as if it were a separate action

• Joinder o# claims

o riginal % ma! &oin to his third3part! claim an$ ot.er claims he has against

the third3part! %o #uch &oinder falls within Rule H+a, which allows a part! to &oin *as man!

claims as it has against an opposing part!+

• Dismissal o# main claim

o If main claim is dismissed before or during trial the court still has the

authorit! to hear the third3part! claims based on it if these are applicable andare within #' @hether to e0ercise this authorit! is generall! left to the trialcourt’s discretion )K*+c,+),

6rice v. C5B, *nc. ($th Cir.)

• " sued % for ma$ing fault! chic$en coup %1 impleaded %? for producing fault!

screws If the claim is deri(ati(e o# t.e original claim and there is at least a possibilit! for factualTlegal theor! for impleading there e0ists grounds for impleaderunder >ule 14 Here %1 properl! impleaded %?

CROSSCLAI0S

Rule )+g,

o allows a part! to ma$e in certain situations a claim against a co%!art$

• Reuirements

1 5ust have risen out of ;t.e transaction or occurrence that is the sub&ectmatter of the original action or of a counterclaim therein+ or else relate to propert! that is the sub&ect matter of the original action

? 5ust as$ for actual relie# from the co3part! against whom it is directed

• @here one % claims he is blameless and other % is liable no cross3

claim can be made

• Indemnit! claims are o$a!

• Cross claims are ne(er com!ulsor$

• Cross claims are it.in SJ

o ransaction or occurrence,common nucleus

airvie' 6ark @cavatin" Co. v. Al Mon;o Con&truction Co. (#r! Cir.)

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• Crossclaim between %1 and %? Court found that cross3claim can be dismissed if the

original "’s claim is dismissed for lac$ of #'5 However as was the case here across3claim properl! permitted under >ule 1D(g) under ancillar! &urisdiction shouldnot be defeated b! a decision on the merits adverse to the " on the "’s primar! claim

o Crossclaim can 'e dismissed i# t.e original P>s claim is dismissed #or lac:

o# jurisdiction .oe(er& crossclaim ma$ continue ot.erise i# originalclaim is dismissed on non%jurisdictional grounds +court .as discretion to

dismiss t.e crossclaim,F

INTER8ENTION

• Rule -B allows certain persons who are not initiall! part of a lawsuit to enter the suit

on their own initiative as intevenorso Is reall$ a'out $our interest in a case and .o i# t.e case as decided

it.out $ou in it stare decisis ould im!ede $our interest

o Intervention allows !ou full status as a part! in the courtroom

Alternative,amicus brief (friend of the court brief)• To #orms

o Inter(ention o# rig.t Rule -B+a,

o Permissi(e inter(ention Rule -B+',

o @here the intervenor is permitted to intervene *of right+ no leave of court is

re/uired for his entr! into the case @here the facts are such that onl!*permissive+ intervention is possible it is left to the court’s discretion whether to allow intervention

• Inter(ention as o# rig.t -B+a,+-,5similarit$ to +a,+-,+i,

o An!one meeting following criteria:

Inter(ention must 'e timel$ Interest in t.e legal su'ject matter

• >elated to !ro!ert$ or transaction that is the sub&ect of the

action Im!aired interest

• %isposing of action ma! as a !ractical matter impair or

im!ede the movant’s abilit! to protect its interest AND Inadeuate re!resentation

• his interest is not ade/uatel! represented b! all parties

OR Statute

• If outside cannot meet above criteria he ma! nonetheless

automaticall! intervene under Rule -B+a, if a federal statutegives him such right

o Stare decisis e##ect

Rule -B has occasionall! even been stretched to the point of re/uiring

the intervention of right of a part! who is interested in the litigation

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onl! because it ma! set an adverse precedent whose stare decisis effectma! later hamper him

o Jurisdiction

5ust meet #5'

.o #'

• Permissi(e inter(ention

o A person who has a claim or defense involving a common uestion o# la or

#act with a pending action ma! be allowed to intervene at the discretion of thecourt Rule -B+',

>arel! appeals due to discretionar! nature

5ust meet #5'

Martin v. ilke& (US SC)

• 7lac$ firefighters recentl! won a consent decree against discrimination against the

cit! of 7irmingham @hite firefighters brought a cause of action based on theirdiscrimination due to the decree 7lac$ firefighters petitioned that this is not allowed because the! had there chance to interveneT&oin and failed to do so However thecourt held that the white firefighter’s case could proceed he! reasoned that it isthose in the suit that share with the court the responsibilit! for &oining the absenteeshe penalt! for failing to locate and &oin all absentee interests is that one must facethe prospect of subse/uent litigation when the absentees do assert their interests

o Parties do not #or#eit t.eir a'ilit$ to !arta:e in later litigation i# t.e$

#ailed to inter(ene in t.e !rior suitF

o Indi(iduals are not .eld to a judgment o# .ic. t.e$ ere not a !art$F

3oe(er& t.e$ ma$ 'e su'ject to !recedent o# t.e courto "ublic law litigation often ends in consent decrees

Consent decrees ma! affect other parties

Consent decrees create legislative effects without going through

legislation

Atlanti& 2evelopment Corp. v. Unite! State&

• " (#) and % (Acme) are litigating over coral reefs off the coast of 6 Atlantis (I)

had interest in reef that government (") sought to claim as government propert!Court granted intervention under >ule ?4 because "’s claim to and interest in the ver! propert! and ver! transaction which is the sub&ect of the main action Also Atlantisdid not have ade/uate representation because it had no friend in the litigation And

lastl! " has a right to advance his interest where the &udgment of proceedings ma!impede his abilit! to later protect that interesto S.ould e allo inter(ention?FFF4ES

imel!,!es

Ade/uate representation,no Atlantis has no friend in the litigation

Interest,!es Atlantis is tr!ing to claim propert!

Impede Atlantis’s interest,!es court will follow precedence,stare

decisis

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• nli$el! #C or en banc decision would have to overturn it

INTERPLEADER

• echni/ue whereb! a part! who owes something to one of two or more other persons

but isn’t sure which ma! force them to argue out their claims among themselves before coming to sue him It is designed to !re(ent t.e !art$ #rom 'eing made to!a$ t.e same claim tice

• To :inds o# inter!leader

o Statutor$ inter!leader5F-H USC ))G

o Rule inter!leader5Rule --

• Need #or jurisdiction o(er 'ot. +or all, claimants

o #olved b! 1DDF and ??

• 1ederal statutor$ inter!leader ))G

o Allows a person holding propert! which is claimed or ma! be claimed b! two

or more adverse claimants to interplead those claimantso Jurisdictional !ro'lems

"'

%iversit!

Amount in controvers!

o Solutions

Nationide ser(ice o# !rocess -)K

• A court in which a sta$eholder has filed a 1DDF suit ma! serve

its process on a! claimant no matter where in the # thatclaimant resides or is found

0inimal di(ersit$ ))G+a,+,

• %iversit! is satisfied as long as some to claimants areciti/ens o# di##erent states

Amount in contro(ers$

• "ropert! which is the sub&ect of the suit must merel! e0ceed

G in value as opposed to NJFGGG 8enue )*

• #uit allowed in &urisdiction in which an$ claimant reside

o Commencement o# inter!leader suit

Commenced b! sta:e.older +;!lainti##


45/70

he further the goal of !rotecting t.e sta:e.older #rom dou'le

lia'ilit$& a court hearing a 1DDF action to en&oin (prohibit) allclaimants from starting or continuing an! other action in an! state orfederal court .ic. ould a##ect t.e !ro!ert$ -)K

• Interpleader can not be used to bring together all potential

litigation arising from an occurrence• 1ederal Rule Inter!leader Rule --

o 5uch li$e 1DDF

o @henever a person ma! be e0posed to *double or multiple liabilit!+ he ma!

demand interpleader A person ma! do this b! coming into court on his owninitiative as " or b! counterclaiming or cross3claiming as % in an actionalread! commenced against him

Distinguis.ed #rom ))G

• he chief difference between 1DDF and >ule ?? is that Rule --

inter!leader .as no e##ect on ordinar$ jurisdictional and

(enue reuirements

o %iversit! must be complete unless ='

o #tandard service of process

o #tandard amount in controvers! re/uirement

• No reuirement to disclaim !ro!ert$ under Rule --

o %o not have to disclaim propert!

• Denial o# lia'ilit$ e@ists .ere as ell

• Statute5Rule +costQ'ene#its o# c.oice,

o .ationwide service,standard service

o 5inimal diversit! (determined between claimants),Complete diversit!

(determined between sta$eholder and claimants)o 5ore than NFGG,more than NJFGGG

o In&unctions (t!picall! to free;e assets or re/uire deliver! to claimants)

5ust disclaim propert!,do not have to disclaim propert!

o %enial of liabilit!,denial of liabilit!

o 9enue

>esidence of one or more claimants,ordinar! venue rules appl!

Cohen v. 5he :epu%lic o+ the 6hilippine&

• " (art dealer) brought interpleader action against 7ramer and "hilippines to determine

who owned paintings he was consigned to sell 5arcos (wife of former dictator)intervened Her intervention was allowed pursuant to >ule ?4(a)(?) because herintervention was timel! she has an affirmed interest she ma! be sub&ect to possible pre&udice and she suffered a lac$ of ade/uate representation (no #riends)

o @h! was 5arcos not interpleaded-

%id not reali;e she was a possibilit!

5a!be "' was a problem

igured she had no interest or she would interpleader if she did

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o Inter!leader ma$ not sol(e all $our !ro'lems +iFeF con#licting

interestsQjudgments, i# $ou do not im!lead all t.e !arties $ou need to

CLASS ACTIONS

• "rocedure whereb! a single person or small group of co3parties ma! represent a larger

group or class of person sharing a common interest

• Class actions ma! be used where &oinder of all the potential co3parties is not feasible

either because the class is simpl! too large or because of the insuperable difficultiesof personal &urisdiction venue or diversit!

o Onl$ re!resentati(es must satis#$ t.e reuirements o# !ersonal

jurisdiction& S0J& and (enueF

• ne concern is that of due !rocess because the results of this $ind of mass litigation

must 'e 'inding on t.e a'sent mem'ers

• Class can be made up of either defendants or plaintiffs

• Class actions o(ercome mootness +rele(ance o# t.e judgment, 'ecause $ou can

re!lace t.e re!resentati(e as t.e case !roceeds o(er time

Rule -)

Certi#ication

• 1our !rereuisites Rule -)+a,

F Numerosit$QIm!racticalit$ o# Joinder -)+a,+,

• Class must be so large that &oinder of all of its members is not feasible

• Su'stitute #or #orms o# joinder

• >ule of thumb is about 4G but no magic number here

• .o e0act number • geographical dispersion also ta$en into account

-F Commonalit$ -)+a,+-,

• here must be */uestions of law or fact common to the class+

• class should be a class U that is it should consist of persons who share

characteristics that matter in terms of the substantive law involved

)F T$!icalit$ -)+a,+),

• he claims of defense of the representatives must be *t!pical+ of those

of the class

•

6oo$ing for the potential for conflicts between the representative andthe class as a whole

• class representatives must stand in significant respects in the same

shoes as the average class member BF Adeuac$ o# Re!resentation -)+a,+B,

• he representatives must *fairl! and ade/uatel! protect the interests of

the class+

• >epresentative himself must have some sta$e in the litigation

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• >elationship between representative and law!er should be

straightforward

• representatives must furnish competent legal counsel to fight the suit

• measured before and after the suit

• #ocuses more on t.e la$er t.an in considerations o# t$!icalit$

T.ree maintaina'le categories o# class actions -)+',+%),

• -)+',+, actions5inconsistenc$ +limited #und +7,,

o applies to situations that are similar to the circumstances re/uiring the &oinder

of necessar! parties under >ule 1Ko Test #or -)+',+,

Inconsistent decisions that would establish incom!ati'le standards

o# conduct for the part! opposing the class Rule -)+',+,+A, OR

• inconsistenc$

he im!airment o# t.e interests of member of the class who are not

actuall! a part! to the individual actions Rule -)+',+,+7,• Dis!ositi(e o# interest as a !ractical matter

o 5embers of a ?D(b)(1) class ma$ not ;o!t out


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• *that /uestions of law or fact common to class members

!redominate over an! /uestions affecting onl! individualmembers+ AND

su!eriorit$ +in #orm o# litigation,

• *that a class action is superior to other available methods for

fairl! and efficientl! ad&udicating the controvers!+• #actors determining i# ;su!erior met.od<

o interest in indi(idual control

*the class members interests+ in individuall!

controlling the prosecution or defense ofseparate actions

o e@isting litigation

*the e0tent and nature of an! litigation

concerning the controvers! alread! begun b! oragainst class members+

o concentration in one #orum

*the desirabilit! or undesirabilit! of

concentrating the litigation of the claims in the particular forum+

o di##iculties o# management

*the li$el! difficulties in managing a class

action+o most popular form of class actions because its re/uirements are the least

restrictive almost a catch3all for class actions

o -)+c,+),,notice with right to opt claim because !ou claims will be

ad&udicated if !ou thin$ !ou’ll get a lous! deal and want to pursue litigation on

!our owno the li$elihood that the class will win on the merits ma! be considered as a

factor determining whether the court will hear the suito fre/uentl! used in securities and antitrust cases

o also used for mass tort actions

• Reuirement o# notice

o he member of a class other than the representatives do not necessaril! $now

that the suit has been commenced herefore the court will normall! re/uirethat these class members be given notice of the fact that the suit is pending

o 9.en reuired

he giving of notice of the suit is re/uired onl! where it is a -)+',+),

class action Rule -)+c,+-,+7, re/uires the giving of *the best noticethat is practicable under the circumstances+ to all b(D) class membersRule -)+c,+-,

• Indi(idual notice

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o Individual notice almost alwa!s b! mail must be given

to all those class members whose names and addressescan be obtained ;t.r

Documents

Civil Procedure I - Abramowitcz - 2009_4.doc