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Civil Procedure I Fall 2010, Professor Sample Mondays 4:10-5pm Wednesdays 2:10-4pm

1. Syllabus: Reading assignments are set forth in this syllabus. The class-by-class breakdowns and dates represent approximations. During the semester, there will be alterations, deletions and additions. Any changes will be announced in class.

2. Texts: The case book that we will be using is the 10th edition of Civil Procedure Cases and Materials by Friedenthal, Miller, Sexton & Hershkoff and the corresponding Supplement (the supplement contains the federal statutes and rules governing procedure along with comparative state provisions and other materials). I will also supply additional materials. The first installment of additional materials is included as part of this document. No other book is required. I will discuss optional commercial materials, including those that I think can be --- depending on the source and the manner in which they are used --- helpful and harmful early in the semester. For now, the critical point is that relying on outside sources instead of the course materials is to follow a well-worn path to the destinations of delusion (first) and disaster (second).

3. Preparation & Participation: You are expected to read and think about the assigned material before each class. Likewise, you are expected to contribute to the classroom discussions on both a voluntary and involuntary basis. I will call on you. Your participation may impact your grade at the margins.

4. TWEN: There is a TWEN page for this course. To register (1) go to lawschool.westlaw.com (2) click on TWEN (3) choose “add course” and add this course. Once you have registered you will have the ability to engage in substantive discussions with your fellow students. I will also use TWEN to post course materials. I encourage you to use the TWEN list serve to discuss substantive matters relating to the course. I may monitor these discussions as a matter of interest, but will not be intervening as a matter of course.

5. Attendance: You may miss no more than six class hours this semester. Accommodations may be made in truly compelling circumstances. In the event you believe yourself to be in such circumstances, you should send an e-mail to my assistant Sharisse Carter within twenty-four hours of your absence. I will do nothing respecting these issues until late in the semester. At that point, I will review the file of anyone with more than six hours of missed class and determine whether to forward the file to the Office of Student Affairs possibly resulting in denying you credit for the course. All of the above pertains only to the bare minimum floor for attendance. Regular, on-time attendance, however, is the expectation.

6. Exams: Your grade will turn primarily on a final exam at the end of the semester. More will be said this in due course. I will be covering matters in class that are not part of the readings, and your readings will cover matters that are not covered in class. All of it is

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fair game for the exam. You will develop a good sense of the relative import of the material as the semester develops, but I will also give some additional guidance on this in the days leading up to the exam.

7. Laptops: As you know, several professors have banned laptops. Personally, I think they are doing you a favor, but after much deliberation, I have decided that you are allowed --- but not encouraged --- to use your laptops for note-taking purposes. Using laptops for other purposes (chatting, emailing, surfing, gaming) is prohibited, mostly because it is distracting for both you and those around you. A compelling articulation of the view that handwritten note-taking promotes greater overall learning may be found at Dorf on Law, http://michaeldorf.org/2006_11_01_archive.html

8. Assistant/Office: Sharisse Carter is my assistant. Her email address is Sharisse.Carter@hofstra.edu and her extension is 516-463-5864. My office (463-7236) is in the basement of the law library. My office hours will be determined early in the semester and I will coordinate these with your section’s class schedule to the extent feasible. You may also make an appointment to meet with me by contacting Sharisse.

NB: Reading assignments begin on the next page.

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Preliminary schedule of readings. Class 1 – Overview

Read pp. 1-25 Read Note on the Arrival of Modern Procedure, pp. 552-553 Look at Judicial Map, “Geographic Boundaries of United States Courts of Appeals and United States District Courts (attached) Read Avista Management, Inc. v. Wausau Underwriters Insurance Company (attached) *Read, or at least begin to read Our Uncommon Law by Harry W. Jones (Mostly for class #2 on historical background, but the article is lengthy and starting it sooner rather than later may be helpful) (attached) (see below)

Class 2 – Historical Background At some point early in the term, we will participate in a joint session with multiple other Civil Procedure sections in a large classroom TBA. Professor Eric Freedman will conduct the lecture, the subject of which will be the historical development of Civil Procedure, with a significant emphasis on the enduring distinctions between law and equity, and the manner in which those distinctions remain essential to understanding modern legal practice. *Readings: (1) “Our Uncommon Law by Harry W. Jones (attached) & (2) Professor Freedman’s “Eight Minutes of Reading on Eight Hundred Years of Procedure to Help You Understand the Next Eight Months” (attached). Class 3 – Quick Intro to Judicial Authority; Pleading Read Capron v. Van Noorden, pp. 26-27 Read Tickle v. Barton, pp. 27-31, through Note 1

Read Case v. State Farm Mutual Automobile Insurance Co., pp. 32-35 Note the following definitions:

• Alias process, p. 28 – “When some court process (it could be a subpoena, a summons, a warrant, or a writ) expires in effectiveness before it can be used, or is used but does not completely achieve what it was supposed to do (e.g., a summons could not be served on all the defendants, or a writ of execution was unsuccessful in garnering enough property to cover a judgment), a second or subsequent document may be issued, which will be called an “alias” one, e.g., “alias summons,” “alias subpoena,” “alias warrant,” “alias writ,” etc.).” Source: The Leff Dictionary of Law, 94 Yale L.J. 1855, 1992 (1985).

• Plea in abatement, p. 28 – At common law, a response to the complaint that

does not challenge the merits of the claim but rather raises defects relating

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to such matters as the location of the action, the place of trial, or wrongful joinder. See Koffler & Reppy, Handbook of Common Law Pleading 416-429 (1969). In the federal system, Federal Rule 12(b)(1) through (5) and (7) are the modern counterparts to the common law plea in abatement.

Class 4 – Quick intro to Joinder and the Scope of the Lawsuit

Read Temple v. Synthes Corp., pp. 35-37 Read Introduction to Joinder (to be distributed)

Class 5 – Personal Jurisdiction: The Traditional Bases

Read Pennoyer v. Neff, pp. 71-81 Note the following definitions:

• Special appearance – a procedure that allows a defendant to challenge a court’s exercise of personal jurisdiction without submitting to the court’s power for any other purpose

• Collateral attack – a challenge to the enforcement of a judgment

typically arguing that the rendering court lacked jurisdiction

• Limited appearance – a procedure that allows a defendant in an action commenced on a quasi-in-rem basis to appear for the limited purpose of defending his interest in the attached property without submitting to the court’s excise of full personal jurisdiction

Class 6 – Personal Jurisdiction: Expanding the Bases and a New Approach

Read Hess v. Pawloski, pp. 82-84 Read International Shoe Co. v. Washington, pp. 85-91

Classes 7-8 – Personal Jurisdiction: Specific Jurisdiction, Long-Arm Statutes, and Due Process

Read pp. 91-top 93 Read McGee v. International Life Insurance Co., pp. bottom 99-101 Read Hanson v. Denckla, pp. 101-105 Read World-Wide Volkswagen Corp. v. Woodson, pp. 105-117 Read Kulko v. Superior Court of California, p. 117-119 Read Burger King Corp. v. Rudzewicz, pp. 119-129 Read Asahi Metal Industry Co. v. Superior Court, pp. 129-138

Class 9—Personal Jurisdiction: General Jurisdiction

Read Perkins v. Benguet Consolidated Mining Co., pp. 138-141 Read Helicopteros Nacionales de Colombia, S.A. v. Hall, pp. 142-148

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Notes and Questions, pp. 148-149

Classes 10-11 – Jurisdiction Based upon Power over Property: In rem and Quasi-in-rem Jurisdiction

Tyler v. Judges of the Court of Registration, pp. 158-159 Reread Pennoyer v. Neff, pp. 71-81 Pennington v. Fourth National Bank of Cincinnati, Ohio, p 159-160 Note and Question, p. 160 Harris v. Balk, pp. 160-161 Notes and Questions, pp. 161 Shaffer v. Heitner, pp. 161-173 Notes and Questions, pp. 173-174 Note on “Cybersquatting” and In Rem Jurisdiction, pp. 174-175

Class 12 – Personal Jurisdiction: Presence and Consent

Read Burnham v. Superior Court, pp. 175-186 Read Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinée, pp. 186-188 Read M/S Bremen v. Zapata Off-Shore Co., p. 188-189 Read Carnival Cruise Lines, Inc. v. Shute, pp. 189-191

Class 13 – Personal Jurisdiction and the Federal District Courts (10.6)

Read p. 191-192 Read Federal Rule 4(k)(1) & (2)

Class 14 – Subject-Matter Jurisdiction: Introduction and State Court Power

Read Lacks v. Lacks, pp. 267-271, especially Note 1 p. 270 Read U.S. Const. Art. III, § 2

Classes 15-17 – Subject-Matter Jurisdiction of the Federal Courts: Diversity of Citizenship

Read pp. 272-278 Read 28 U.S.C. § 1332 Read Mas v. Perry, pp. 278-285 Read A.F.A Tours, Inc. v. Whitchurch, pp. 285-292 Read Note on Judicially Created Exceptions to Diversity Jurisdiction, pp. 292-294

Classes 18-20 – Subject-Matter Jurisdiction of the Federal Courts: Arising Under Jurisdiction

Read Osborn v. Bank of the United States, pp. 297-299 Read 28 U.S.C. § 1331

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Read Louisville &. Nashville R. Co. v. Mottley, pp. 299-303 Read Note on Private Rights of Action, pp. 307-309 Read Shoshone Mining Co. v. Rutter, p. 308 Read Smith v. Kansas City Title & Trust Co., pp. 308-309 Read Moore v. Chesapeake & Ohio Railway Co., pp. 309 Read Merrell Dow Pharmaceuticals Inc. v. Thompson, pp. 309-317 Read Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, pp. 317-322 Read Empire Healthchoice Assur., Inc. v. McVeigh, pp. 322-324

Classes 21-22 – Subject-Matter Jurisdiction of the Federal Courts: Pendent, Ancillary, and Supplemental Jurisdiction; Removal Jurisdiction

Read United Mine Workers of America v. Gibbs, pp. 325-330 Read Note on Pendent and Ancillary Jurisdiction Following Gibbs, pp. 330-338 Read 28 U.S.C. § 1367 Read Exxon Mobil Corp. v. Allapattah Services, Inc., pp. 338- 343 Read Executive Software North America, Inc. v. United States District Court for the Central District of California, pp. 343-350 Read pp. 350-351

Class 23 – Venue and Forum non Conveniens

Read pp. 369-374 Read Reasor-Hill Corp. v. Harrison, pp. 375-378 Read Bates v. C & S Adjusters, Inc., pp. 378-381, through Note 1 Read 28 U.S.C. §§ 1404, 1406, 1407Read Hoffman v. Blaski, pp. 383-390

Read Gulf Oil Corp. v. Gilbert, pp. 391-392 Read Piper Aircraft Co. v. Reyno, pp. 392-403, especially Note 9

Classes 24-26 – State Law in the Federal Courts

Read pp. 404-407 (esp. Swift v. Tyson note) Read Erie R. Co. v. Tompkins, pp. 408-416 Read Guaranty Trust Co. v. York, pp. 416-424 Read Byrd v. Blue Ridge Rural Electric Cooperative, Inc., pp. 424-429, through Note 3 Read 28 U.S.C. § 2072 Read Hanna v. Plumer, pp. 431-442 Optional

Gasperini v. Center for Humanities, Inc., pp. 454-466

Class 25 – Determining State Law; Federal Common Law; Federal Law in State Courts

Read pp. 466-466, especially Klaxon Co. v. Stentor Electric Mfg. Co., p. 466 Read Notes 1-5 pp. 466-468

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Read pp. 476-479 Read Note on Federal Common Law and Federal Rules of Preclusion, p. 494 Read Note on Federal Law in the State Courts, pp. 494-95

Class 26 – Flex TBD NB: Supplementary materials begin on the next page.

Supplementary Materials

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United States District Court, M.D. Florida.

AVISTA MANAGEMENT, INC., d/b/a Avista Plex, Inc., Plaintiff, v.

WAUSAU UNDERWRITERS INSURANCE COMPANY, Defendant. No. 6:05-CV1430ORL31JGG.

June 6, 2006.

Slip Copy, 2006 WL 1562246 (M.D.Fla.)

ORDER

PRESNELL, J. This matter comes before the Court on Plaintiff's Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion--the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts--it is ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801. DONE and ORDERED.

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Introduction to Joinder

Temple v. Synthes Corp. is the first case in the Chapter to explore the advantages

and disadvantages of including more than one party on each side of a lawsuit. Common law procedure typically embraced two-party litigation. Although devices for collective action existed, common law joinder turned on the forms of action and so, in practice, was quite uncommon. By contrast, the Federal Rules of Civil Procedure routinely allow for the joinder of multiple parties and multiple claims in a single lawsuit. The federal approach achieves economies of scale, but in some situations joinder may lead to confusion or delay. A majority of states model their procedural rules on those of the federal system, but keep in mind that some states do not and so continue to take a more limited approach to joinder.

Federal joinder rules, like joinder rules in general, distinguish between permissive

and mandatory rules. Permissive joinder rules give litigants the option of combining multiple parties and multiple claims in a single lawsuit. Mandatory joinder rules require the litigants to do so. Temple v. Synthes involves Rule 19, a mandatory joinder Rule.

It is important to remember that the question of whether a litigant can join a claim

or party in a lawsuit is separate from the question of whether the court may exercise jurisdiction over the claim or party. See Federal Rule 82.

Start with some basic definitions. A claim is an assertion of right by the plaintiff against the defendant (the defending party). . P v. D A counterclaim is a claim asserted by the defending party against an opposing party, typically the plaintiff. P v. D A third-party claim is a claim asserted by a defending party against a nonparty on the theory that the nonparty (now joined as a third-party defendant) will be liable to the defending party (now called the third-party plaintiff) if the latter is found to be liable to the plaintiff. Third-party claims are called impleader claims.

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P v. D Third-Party Defendant A crossclaim is a claim asserted by a party against a coparty. P v. D1 and D2

Now consider the basic rules governing claim and party joinder.

Federal Rule 18(a) allows a party “asserting a claim, counterclaim, crossclaim, or third-party claim” to join “as many claims as it has against an opposing party.”

• This means plaintiff can choose to join a claim for negligence with a claim for divorce with a claim for slander with a claim for contract breach and on and on against defendant.

Federal Rule 20 authorizes the permissive joinder of plaintiffs if their claims are transactionally related and share common questions of law or fact. A similar rule applies to permissive joinder of defendants.

• This means A and B can choose to join as plaintiffs in a lawsuit against C and D if their claims arise out of “the same transaction, occurrence, or series of transactions” AND “any question of law or fact common to all” will arise in the action. See Federal Rule 20(a)(1) and (2).

The Rule on counterclaims is somewhat more complicated. Federal Rule 13 distinguishes between compulsory and permissive counterclaims.

• Defendant must raise a compulsory counterclaim if it is transactionally related to the opposing party’s claim and does not require the joinder of a nonparty over whom the court cannot acquire jurisdiction. See Federal Rule 13(a), which also sets out two exceptions to this rule.

• Defendant may choose to plead a counterclaim “that is not compulsory,”

i.e., that does not arise out of the transaction or occurrence that is the subject mater of the opposing party’s claim. See Federal Rule 13(b).

Impleader claims require the joinder of both a claim and a party.

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• Federal Rule 14(a)(1) allows a “defending party” to join “a nonparty who

is or may be liable to it for all or part of the claim against it,” but must obtain the court’s permission “if it files the third-party complaint more than 10 days after serving its original answer.”

The rule on crossclaims relies on the transactional relation test.

• Federal Rule 13(g) allows the pleading of a crossclaim, i.e., “any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim.”

• A crossclaim also “may include a claim that the coparty is or may be liable

to the cross-claimant” i.e., the party asserting the crossclaim, “for all or part of a claim asserted in the action against the cross-claimant.”

The joinder of claims and parties can quickly complicate a lawsuit and make it “complex.” Assume Plaintiff sues Defendant, and Defendant impleads a Third-Party Defendant. P v. D Third-party defendant

Federal Rule 14(a)(2) allows the Third-Party Defendant to assert a Rule 13(b) counterclaim against the Third-Party Plaintiff.

P v. D Third-party defendant

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Federal Rule 14(a)(2) requires the Third-Party Defendant to assert a Rule 13(a) counterclaim against the third-party plaintiff.

P v. D Third-party defendant

In addition, Federal Rule 14(a)(3) allows the plaintiff to assert against the Third-Party Defendant “any claim arising out of the transaction or occurrence that is the subject mater of the plaintiff’s claim against the third-party plaintiff.” In this situation, the Third-Party Defendant must then assert “any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b).” In addition, if another Third-Party Defendant has been joined, TPD1 can assert a cross claim under Rule 13(g) against TPD2.

P v. D

Third-party defendant1 and TPD2

Some additional joinder terms:

Interpleader Suppose a bus collides with a truck. The bus driver is insured up to $200,000

“per incident.” The truck driver and all of the bus passengers sue the bus driver in individual actions alleging damages of $50,000 per person. The insurance company wants to avoid conflicting or multiple liability. In this situation, interpleader, authorized by Federal Rule 22, allows a party to join as defendants “[p]ersons with claims that may expose” such party “to double or multiple liability, even if the claims “lack a common origin or are adverse and independent rather than identical” OR the plaintiff or defendant “denies liability in whole or in part to any or all of the claimants.”

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Intervention Suppose the residents of Coney Island sue LaGuardia Airport for scheduling late-night flights on the ground that it constitutes a nuisance. A manufacturer in California claims that halting the flights will deprive it of essential transportation service. Intervention, authorized by Federal Rule 24, allows a nonparty to join a pending lawsuit, even over the objection of the original parties. The Rule distinguishes between mandatory intervention, where the court must grant to request to join, from permissive intervention, where the court may decide to grant the request. The distinction turns, in part, on the nature of the nonparty’s interest.

Class action

The class action device permits a lawsuit to be brought by or against a large

number of individuals who share a common interest and are considered to be similarly situated. Unlike other joinder devices in which the joined party appears in the action and represents his or her interests individually, the class action proceeds on the theory of representation: the class action resolves the interests of class members who are “absent” from the proceedings but whose interests are represented by a named party subject to approval by the court. Federal Rule 23 governs the certification of class actions in the federal courts and sets forth many conditions for their use.

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