CIV PRO FINAL OUTLINEBERMAN, FALL 2012

PERSONAL JURISDICTION

BLURB: “The traditional bases for personal jurisdiction have been domicile, consent and service of process upon the defendant when he was physically present in the forum (Pennoyer v. Neff). The supreme court reaffirmed that principle in Burnham where it held that the mere presence of a nonresident in the forum state is sufficient for the forum state to assert personal jurisdiction over him as long as the service is made on the person while he is in the forum state.”

1. Does the forum state traditionally hold personal jurisdiction over the defendant?a. Is D a Domiciliary/Citizen

i. Individual (permanent home = only one)1. Physical Prescience & Intent to Remain

ii. Corporation (can have 1 or 2)1. State of incorp. & Principal place of business

b. Consent to PJi. Forum selection clause in contractii. Presence at hearing to defend

1. Exception: Special Appearance to contest PJiii. Legal Fictions (Implied Consent): precedent (Pennoyer) doesn’t work well, so

we will do anything to preserve the structure1. Pawloski: Statute designating agent of state for purpose of service

of proses for out of state non-residents constitutes implied consent to jurisdiction under 14th amendment

a. P sues D who hit her in car while driving through Massachusetts, P is mass resident and D isn’t. D says no PJ b/c not served in the state, but court holds PJ anyway b/c of implied consent

b. If you choose to waive your due process right, you have consent

i. Driving into state under statue waives due process right

c. Was D Physically Present in the state while served?i. Pennoyer: Service of process while physically present in forum is basis for

PJ1. Mitchell wants to collect lawyer fees from Neff in Oregon State Court;

Neff somewhere in CA; Mitchell publishes notice of case in church newspaper; Neff doesn’t show up; Court issues default judgment in favor of Mitchell and Mitchell gets Neff’s property; Sells property for money Neff owed him; Richard buys it and then transfers title to Pennoyer; Neff shows up and says he’ll sue Pennoyer for his land back saying Mitchell didn’t have right to sue in the first place because he didn’t know about the suit

ii. Burnham: Served w/ Transient presence in state = PJ1. Man served in CA while on visit, held PJ in CA2. Even under Int’l shoe min. contacts destroying Pennoyer majority

view, transient = PJ2. Does the state’s long arm statute authorize personal jurisdiction under the circumstances of

the case? And if they offer some jurisdiction, must discuss how courts would act if they took it by word or if they extended it to the full extend of the constitution meaning it could be held to be much broader scope.

BLURB: “The Georgia long arm statute allows for…”

GEORGIA LONG ARM STATUTE

Grounds for exercise of personal jurisdiction over nonresident.

A court of this state may exercise personal jurisdiction over anynonresident or his executor or administrator, as to a cause of actionarising from any of the acts, omissions, ownership, use, or possessionenumerated in this Code section, in the same manner as if he were aresident of the state, if in person or through an agent, he:

(1) Transacts any business within the state;

(2) Commits a tortious act or omission within this state, except as to acause of action for defamation of character arising from the act;

(3) Commits a tortious injury in this state caused by an act or omissionoutside this state if the tortfeasor derives revenue from goods used orconsumed or services rendered in this state;

(4) Owns, uses, or possesses any real property situated within this state; or

(5) With respect to proceedings for alimony, child support, or division ofproperty in connection with an action for divorce, maintains a matrimonialdomicile in this state at the time of commencement of this action or, ifthe defendant resided in this state preceding the commencement of theaction, whether cohabiting during that time or not.

3. If yes, would it be constitutional under the due process clause of the 14th amendment to do so?

BLURB: “To establish personal jurisdiction over D, the P will have to satisfy the minimum contacts test by showing that D had purposeful contacts with state and that P’s claim arises out of those contacts. If P makes such a showing, then the burden will shift to D to demonstrate that the exercise of jurisdiction would none the less be unreasonable.”

a. Use International Shoe Minimum Contacts Analysis to place the issue on sliding scale from general jurisdiction on one hand (lawsuit totally unrelated to your contacts in the state) and very specific jurisdiction on the other hand (one contact in the state that’s very related to the lawsuit)

i. To analyze purposeful contacts1. Relatedness of contacts to what the lawsuit is about2. How much D benefitted from the contacts3. Foreseeability of those contacts4. Were contacts created by acts of consumer versus happening

through a stream of commerce?5. Effects of the defendant’s action (Calder)6. Whether the D in any way targeted actions to the state (Kennedy in

McIntyre)b. If you can’t get PJ, you may then try to get In Rem jurisdiction over the thing,

whatever the thing in the state may bei. Under Shaffer, Quasi in Rem (jurisdiction over the thing when the suit is not

about the thing) but now has to satisfy Int’l shoe so not generally useful unless long-arm statute blocks you from getting PJ

c. Minimum Contacts Test (Int’l Shoe v. Washington)i. Int’l Show manufactures shoes and wants to sell them all over country but

doesn’t want to have jurisdiction over them in every state they sell shoes in.

Don’t want to pay unemployment compensation fund in every state they do business in, so they want jurisdiction in as few states as possible. When state of Washington says they owe money into the Washington compensation fund, Int’l shoe claims it has no presence in the state. To bypass presence, they set up no offices in the state and have sales people move around. In Pennoyer world, would have to show corporate presence or try to show implied consent (agents). Comes up with minimum contact test. Replaces, “is it there?” with “is it fair?”. Activities of Int’l Shoe in Washington were systematic and continuous throughout the years in question (resulted in large volume of interstate business where Intl Shoe received benefits and protection of the laws of the state including right to resort to courts for enforcement of its rights. The obligation, which is sued for here, arose out of those activities.

ii. To satisfy this test, P must demonstrate that if D is not physically present in the state, D has sufficient minimum contacts with the forum state and that exercise of PJ over D would be reasonable in keeping with traditional notions of “fair play and substantial justice”

d. In order to satisfy General Jurisdiction, P must demonstrate that D had continuous and systematic contacts with the forum state to make D subject to PJ for any action arising in that state

i. Rarely permissible outside of place of citizenshipii. Claim need not arise out of contacts; don’t worry about fairnessiii. Are contacts so much so that the defendant is essentially at home in forum

state?iv. Int’l Shoe: continuous solicitation of orders in the state by salesmen and

continuous flow of Shoe’s product into state satisfy general jurisdictionv. Goodyear: GJ cant be applied in stream of commerce on claim unrelated to

contacts in forum1. Foreign subsidiaries not amenable to suit in NC on claims unrelated

to any activity by them in that state (few factories in NC not continuous and systematic)

2. Two 13 year old boys from NC died as result of bus accident outside of Paris. Parents believe accident due to defective tire manufactured by foreign subsidiaries of Goodyear in Turkey, France & Luxembourg and sued for damages in NC state court. Court finds foreign subsidiaries lacked a significant connection to NC to warrant jurisdiction.

vi. Helicopteros: purchase of helicopters and training in Texas by Colombian corporation, while considered business-related activities, did not rise to level of continuous and systematic for GJ

1. Helicopters, a Colombian corporation, purchased a majority of its helicopters and training for said helicopters in Texas. They provide helicopter transport for oil and construction companies in South America. The incident in question happened on Jan 26, 1976 when a helicopter crashed killing 4 Americans. In the contract, which was negotiated in Houston, that the plaintiffs had with the defendants there was a choice of location clause which stated that all controversies would be submitted to Peruvian courts.

vii. Only three cases ever allowed GJ, only with Domicile satisfied

BLURB: “In the absence of general jurisdiction over defendant, plaintiff might argue that defendant is subject to specific jurisdiction, for which only contacts related to the lawsuit are relevant.”

e. In order to satisfy Specific Jurisdiction, P must demonstrate that D had purposeful contacts with the forum state and that D’s cause of action arose out of those contacts (Int’l Shoe)

i. Question: Did D seek to do business in or with forum state?ii. Question: Did D purposefully avail himself of the benefits or privileges of the

forum state?iii. Question: Was D’s act reasonably foreseeable to occur in the forum state?

1. Conducting Transactions within state make it foreseeable to have to litigate there (Shoe)

2. Contracting with a party from another state and forming ongoing contractual relationship make it foreseeable to litigate there (BK)

iv. Question: Is placement into stream of commerce where product ended up in forum state sufficient for PJ?

v. Question: How related are the contacts to the suit?1. Action must arise out of contacts otherwise not sufficient for specific

jurisdiction2. When we talk about relatedness, we say it’s really related if the

suit arises out of the contacts; somewhat related if the suit is simply somewhat connected to the contacts (degrees of relatedness)

vi. Question: How significant are the contacts?1. ie. 50 web hits seems not very significant, 20,000 shearing

machines seems pretty significantvii. Fair Play & Substantial Justice Analysis

f. What are the contacts or D’s activities in the forum state?i. None

1. WWVW: unilateral activity of third party insufficient for PJa. Robinsons v. Audi + VW + WWVW + Seaway

i. Audi is manufacturer in Germanyii. VW is national distributor in USAiii. WWVW is regional distributor in NY areaiv. Seaway is dealer in Messina, NY

b. NY family buys car in Messina, crashes in OK, sues in OK state court b/c notoriously plaintiff friendly by making sure two NY companies are in there too so that there was no complete diversity

c. Seaway & WWVW challenge jurisdiction b/c other two sell tons of cars all over the US

i. Not subject to OK jurisdiction b/c no contacts or ties with state due to fact that “mere unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of a contract with the forum state.”

d. Difference btwn this and Stream of Commerce: in SoC, company sells to company who brings it into a state; here company sells to consumer who brings it into the state

ii. One Way Unilateral Act of 3rd Party1. Denckla: no PJ b/c one way unilateral contact means D did not

purposefully avail itself of the forum statea. Trust beneficiary moves to FL post contracting while trustee

at DE bank didn’t know and had no reach to FLiii. Single Act/Contact

1. McGee: Only one volitional contact w/ state = PJ alloweda. TX ins. co. sends letter to beneficiary in CA, CA resident

sends payments monthly to TX, purposefully availing themselves.

b. Allows jurisdiction with one contact but VERY high relatedness to suit

iv. Continuous but Not Systematic/Substantial1. Burger King: contractual relations sufficient to create contacts even

based on boilerplate language where D purposefully availed itself of benefits and privileges of forum state by partaking in forum activates and agreeing to protection of state’s law’s in forum selection clause.

a. Sent fees to FL corp, FL training, agreed to FL lawb. Fair Play & Substantial Justice Factors can lead to fewer

contacts being necessary OR defeat reasonableness of jurisdiction even if D has purposefully engaged in forum activites.

i. Burden on the defendant for litigating in stateii. Plaintiff’s interest in obtaining convenient and

effective reliefiii. Interstate’s judicial system’s interest in obtaining

most efficient resolution of controversiesiv. Shared interest of several state in furthering

fundamentals of substantive social policiesv. Targeting

1. Keeton: D does not need purposeful contacts with an individual state to have PJ over them if by targeting the entire country their activities end up in the state and the suit is related to those activities.

a. Hustler sells magazines all across nation. P is NY citizen but wants to sue for libel in NH b/c Hustler is sold there. Targeted NH by means of targeting the entire country (make money off people in NH) and suit is directly related to those contacts in that the libel is in the magazine and the magazine is in New Hampshire!

2. Calder: PJ over D appropriate where effects are felt if D intentionally acted, targeted a person or something in a particular state and knew the effects would occur in the forum state.

a. D writes article in FL about P actress in CA. Article published in National Enquirer which is distributed everywhere. P claims article is libelous. Article was about someone in CA whereas in Keaton person who was libeled wasn’t even in NH. D knew article would be distributed in CA through national outreach, so PJ upheld in CA.

b. CALDER TEST:i. Committed an intentional actii. Act was expressly aimed at forum stateiii. Act caused harm and D knew it would in forum state

vi. Internet Targeting1. Do people “travel to” websites or do websites “invade” jurisdictions?2. Revell: No PJ where internet message board had no intent to target

that state or readers, just posted on site viewable in that statea. D published demaftory article about P in NYb. P domiciled in TX, D had no knowledge of this and no intent

to target TXc. Different from Calder because publisher had no awareness

of where person lived whereas in Calder knew the location of the actress and knew targeted at CA

3. Ubid: Unilateral act of third party on internet = no PJa. uBid not customer of GoDaddy. uBid upset that some of

GoDaddy’s customers have registered Domain names that allegedly infringed on their trademark. There were a fair

amount of contacts with Illinois (Godaddy had 3.19% revenue from Ill.; sometimes communicated with customers; advertisements at sporting venues there as part of national ad campaign).

b. Unilateral act of a third party travelling to AZ virtually to buy domain and then back to Ill over web, not initiated by GoDaddy and they did not purposefully avail themselves to benefits of Ill.

c. Court worried Internet companies could be sued EVERYWHERE if this were not the case!

4. New Haven Advocate: local character of site = no PJa. CT paper defamed VA man based on treatment of CT

prisoners in completely local newspaperb. This is not purely about effects of contacts, it’s not

about the character of the website (are you seeming to access a market in Virginia)

vii. Stream of Commerce1. Gray: PJ where manufacturer expected products would end up in IL

in ordinary course of business. If a corporation elects to sell its products for ultimate use in another state, it is not unjust to hold it answerable there for any damage caused by defects in those products.

a. P sues Titan Valve Co alleging it negligently constructed safety valve and as result of that, a water heater exploded. P sues in Illinois and Titan, Ohio Company, challenged PJ. Titan manufactured valve in Ohio then sold it to PA Company which incorporated it into the heater. The heater in the course of commerce was sold to the Ill consumer. No evidence that Titan had done any business in Ill directly or indirectly.

2. Asahi (Superceded by McIntyre!): Argued what satisfies purposeful availment in stream of commerce

a. Asahi (Japanese company) sells component part to company called Cheng Shen (Taiwanese) and they put it in tires, tires on motorcycle shipped to CA and guy in Ca gets injured. Guy settles with Cheng Shen and Cheng Shen brings this suit to recover for what they paid him in CA. State has no interest in this suit anymore b/c two foreigners suing in CA (all believed no jurisdiction)

b. 4 Justices: Purposeful Availment means Directing Atc. 4 Justices: Purposeful Availment means Awareness

3. McIntyre: UK manufacturer sells shearing machines to national distributor owned as subsidiary; US subsidiary sells product and this specific onces end up in NJ where it harms someone. P wants to sue UK entity. Didn’t specifically target NJ where P injure and no contacts there PJ not appropriate based on failure to target state (Need two of three to be persuasive!)

a. Kennedy +3 (Majority): Targetingi. Must target the state purposefully with

advertisements, distribution, etc.ii. Without contacts a sovereign entity cannot impost

jurisdictioniii. D’s volitional actions reveal consent to state’s

jurisdictionb. Breyer + 1 (Controlling): Flow

i. Rejects Kennedy’s targeting analysis

ii. Regular flow sufficient to establish contact; one item not enough

c. Ginsburg +2 (Dissent): Knowledge+Flowi. Knowing product is national should avail for suit in

any state + Flow

BLURB: “Even if the court finds that there are minimum contacts over the defendant, it is (plausible/implausible) that the court could find that subjecting the defendant to suit in (state) would violate “traditional notions of fair play and substantial justice”

4. Once minimum contacts are established, would exercise of PJ over D would be reasonable in keeping with traditional notions of “fair play and substantial justice” as per Burger King?

a. Burden on Defendant (Main Issue)i. D has very high criteria to show; mere inconvenience not enough, must be

unconstitutionally burdensomeb. Forum state’s interest in disputec. Plaintiff’s interest in obtaining convenient and effective reliefd. Interstate judicial system’s interest in obtaining most efficient resolution of

controversiesi. Would not be fulfilled if other forum that would be more efficient handling

e. Shared interest of several states in furthering fundamental substantive social policiesi. In Keeton, Ct. recognized NH shared interest b/c every state deals w/

defamation5. In Rem/Quasi In Rem

a. Shaffer requires that in rem and quasi-in-rem cases be assessed under Int’l Shoei. Heitner has one share of greyhound stock and wants to sue: shareholder

derivative suit (bought share to bring the suit). Sues Directors of company in DE because there incorporated there. Not suing the company, suing the directors for doing a bad job. Court grabs the property (shares/stocks of greyhound from directors) and says sufficient for jurisdiction in DE. Supreme Court says D’s contacts with state must satisfy SHOE!

b. In rem: fact that defendant owns property in forum almost always means defendant has minimum contacts with the forum

c. Quasi In Rem: no longer useful except when jurisdiction satisfies Int’l shoe but long arm statute precludes personal jrusidcition

i. Where property seized as jurisdictional hook didn’t cause injuries, would not satisfy Shoe attaching property as collateral not sufficient b/c no relation to claim

NOTICE

1. Was D afforded notice under due process (D must get notice)?2. First must satisfy Constitutional Minimum

a. Mullane: notice must be reasonably calculated to reach those who are known to be affected by such proceedings, but notice not required to be actually received

i. NY State Banking Law allowed for pooling of small trusts into large common fund administered by corporate fiduciary with all losses, income, gains and expenses shared by constituent trusts in proportion to their contribution to the common fund. Central Hanover Bank petitioned court for settlement of its first account as common trustee with 113 trusts participating in fund. Only notice of settlement proceedings was put in newspaper as per the state statue’s requirements. Supreme Court held that while newspaper was okay for parties where they didn’t know of their location, parties whose location they knew should have been notified via mail.

ii. Are names and addresses known? If not could they be found? Cost/Benefit Analysis

iii. If you have the mailing address, use it is email reasonably calculated to apprise party these days? Can be argued that in some cases mail isn’t the best way to be reasonably calculated to lead to actual notice.

b. Jones v. Flowers: follow up steps may be required when knowledge that notice was not actually received

i. State sent certified letter to home owner to inform of tax delinquency. Letter was returned and state didn’t do anything. After mailed notice was returned unclaimed, court says state required by due process to take additional reasonable steps to notify owner before sale of his property. Court requires government to investigate (higher standards than Mullane because more burdens on government for due process!).

3. Then, does the state have additional statutory requirements or, if in federal court, federal rules (FRCP 4)?

a. FRCP 4(a)(1): Contents must:i. Name the court & partiesii. Be directed to defendantiii. State the name and address of plaintiff’s attorney or if

unrepresented the plaintiff’siv. Stat the time which the defendant must appear and defendv. Notify the defendant that failure to appear and defend will result in

default judgment against defendant for relief demanded in the complaint

vi. Be signed by the courtvii. Bear the court’s seal

b. FRCP 4(c) - Servicei. Summons must be served with a copy of the complaint by any

person who 18 years or older and not one of the parties. At P’s request, court may order that service be made by US marshall or by person specially appointed by court.

c. (e) – serving an individual within judicial district of uSd. (f) – serving individual in foreign countrye. (g) – serving a minor or incompetent personf. (h) – serving a corporationg. (i) – serving the US and its agencies, corporations, officers or employeesh. (j) – serving foreign, state, or local governmenti. (m) – time limit for service – D must be serviced within 120 days after

complained filed unless P shoes good cause for failure in which case court may extend without dismissing

j. (n) – Asserting jurisdiction over property or assetsi. Federal law - court may assert jurisdiction over property if

authorized by federal statute and notice to claimants must be given according to this rule

ii. State Law -

PROVISIONAL REMEDIES / OPPORTUNITY TO BE HEARD

1. Do the provisional remedies put on the D violate due process?a. Temporary Restraining Order & Preliminary Injunctions

i. Freeze everything in place while you’ve got a law suit going on usually lasts about a day until there can be a hearing

b. Attachment of Property: useful when suing individual w/o other assetsi. Big consequences during pendency (cant sell house, credit score, etc.)

but on other hand if you don’t attach the property, defendant might get rid

of all their property and become “judgment proof” meaning you might win suit but they have no money or property to collect on

c. Garnishment of Wages and Bank Accounts: put into escrow pending triali. Seize some amount of wages or bank account and you say that some

amount of that needs to get pulled out and put in escrow pending the lawsuit

d. Replevin: seize property in which you claim an interest2. Matthews Test: Who Should Bear The Harm (Gov’t v Individual)

a. Eldrige gets disability benefits (injured and unable to work) in 1968. In March, 1972, fills out questionnaire answering whether or not he was still disabled or has gotten better. Agency receives questionnaire and then gets information from his medical providers and determines that hes not still eligible for benefits. Eldrige wants hearing under due process before he loses his benefits. Agency allows him to challenge within agency and send more information but didn’t allow for him to have a hearing. Question is whether he is entitled to judicial review of what the agency did BEFORE the benefits were taken away! Court’s decision turns on the likelihood of correct judgment. Assuming medical records or judgment of doctors is Fact and Court believes agency is getting it right generally so they feel better about risk of error falling on Plaintiff.

b. TEST:i. Harm to Private Interests: not receiving disability during pendency of

hearingii. Harm to Government: recouping disability payments made to P difficult

because P may have spent it alreadyiii. Risk of Erroneous Deprivation: not likely because decision based on

objective medical evidence3. Doehr Test:

a. Fight between two guys with lots of eyewitness testimony (who knows who is at fault). Court says using Matthews we end up with situation where P cant encumber property before lawsuit even started. P tries attaching real estate without prior notice of hearing, no extraordinary circumstances, no bond requirement under CT statute. Court dislikes fact that P didn’t need to post a bond b/c making the P post a bond requires P to put money on table and to think twice before attaching property, but this may discourage the P in some cases where we don’t want them to be because they don’t have enough money for the bond. Applies Matthews but finds no indication that D is planning to encumber property, providing little justification for P’s attachment of the property, plus the court has no confidence in any preliminary assessment of the merits of the case.

b. TESTi. Interest of Defendant: significant (encumbrance of property may make

it impossible to sell)ii. Risk of Erroneous Deprivation: Court has no confidence in preliminary

assessment of meritsiii. Interest of Party Seeking Prejudgment Interest: minimal and

insufficient to justify burdening D

SUBJECT MATTER JURISDICTION(Diversity & Federal Question are Independent Methods to Obtain SMJ)

1. First, look to Article III, section 2 to see what powers constitution grants to courts2. Then, see if congress actually created this federal power by looking at FRCP3. Diversity Jurisdiction (28 USC 1332)

a. Complete Diversity At Time Suit Brought: Strawbridgei. P in MA tries to sue two defendants (one in MA and one in VA) in

Federal Court in VA. Can’t do it b/c no complete diversity.

ii. No party from one side of “v.” can be citizen as same state as party from other side of “v”.

iii. Individual – 1332 (a) – one domicile1. Citizens of different states2. Citizens of a state and citizens of foreign state3. Citizens of different states and in which citizens or subjects of a

foreign state are additional parties4. Foreign state as plaintiff and citizens of a state or different states

iv. Corporation – 1332 (c)(1) – two domiciles1. State in which it is incorporated2. State in which it has principal place of business

a. Hertz: Nerve Center (usually corp. hq) for principal placei. CA P’s bring class action suit against Hertz in

CA state court. Hertz moved to remove case to CA federal court based on diversity jurisdiction. Hertz has tons of locations all over the country, with headquarters in NJ. P’s say Hertz’s principal place of business was CA.

ii. Court: don’t look at individual places with lots of corporate activity for principal place of business. Instead, look at NERVE CENTER of company where corporate HQ, big officers, big decisions being made and this is the place to look.

b. Amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs ($75,000.01+)

i. Only Good Faith Allegation Required in Pleading: only dismissed if proved to be a legal certainty that claims will be less than $75,000 not if by some chance they get less than $75,000 in judgment not what you actually recover

ii. Aggregating Claims1. 1 P v. 1 D can aggregate all claims to make over $75,0002. 1 P v. 2 D both must be greater than $75,0003. 2 P v. 1 D One must be greater than $75,0004. Multiple P’s can arrogate if have common and undivided interest

(jointly on single, unified class action claim)4. Federal Question (Arising Under) Jurisdiction (28 USC 1331)

a. 28 USC 1331 – “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the U.S.”

b. Does the suit arise under the federal law that creates the cause of action?i. Mottley: Well Pleaded Complaint Rule means that the Federal Issue

must be part of the plaintiff’s claim, not one of an anticipated defense even if the main issue in the case will revolve around federal law. In other words, if the federal issue comes from the Defense, theres no federal question.

1. Mottleys are husband and wife injured in train wreck in Kentucky. In exchange for releasing them from liability, RR gives Mottley free passes for train tickets to be renewed annually. Statute passed not allowing RR to give free passes anymore b/c RR’s were systematically bribing government officials by giving them free transit. Mottley says you gave us these passes, we had a contract, you need to pay us. Main claim was for breach of contract (state law). Mottleys try to bring case into federal court under federal question jurisdiction by arguing that either federal statute didn’t apply b/c issued decades before law went into effect or if law did apply it was unconstitutional b/c it deprived them of their properties. This federal question argument is really

about an affirmative defense from the defendant (RR) saying yes I signed a contract and breached it but there was a valid reason to do so (because federal law prohibited me from doing so).

2. Court: No SMJ b/c no diversity and no grounds for federal question jurisdiction except that the case arose under federal law which is insufficient to satisfy requirement. Only way a party can get federal question jurisdiction is if the question arises in the P’s well-pleaded coplaint.

c. Does the suit arise under a state law that necessarily raises a federal issue?i. Smith: If P’s claim requires proof of federal law, then there is Federal

Question Jurisdiction. Then we analyze via Grable test:ii. Grable: DOES NOT OVERTURN MOTTLEY! Courts have federal SMJ

when state law necessarily raises a substantial federal issue in the complaint and when systemic concerns are also met.

1. IRS seized property belonging to Grable to satisfy delinquent tax debt. IRS gave notice by certified mail as required by federal statute. IRS sold property to Darue. Grable didn’t exercise his right to redeem property within 180 days of sale even though he was given notice through the certified mail. 5 years later Grable brought quiet title action against Darue and claimed he was not notified in exact manner required by federal statute (personal service v. certified mail). Darue removed to federal court under Federal question because claim of title depended on the interpretation of the notice statute in federal law.

2. Factors:a. Federal issue is a substantial one with a key federal

interest in claiming advantages inherent in federal forum; cannot just be contested federal issue

b. Granting federal SMJ will not open the floodgates to federal litigation

c. Proper division of labor between state and federal courts maintained

d. Would allowing this go against congress’ intent?5. Removal by Defendant (28 USC 1441, 1446, 1447)

a. Same test as for whether you had federal jurisdiction to begin with, with one exception.

b. 1441 A(a) only defendants can remove from state to federal courti. Only authorizes removal of state court actions “of which the district courts

of the US have original jurisdiction”ii. In multi-D case, only remove if all D’s agree to removeiii. Can only remove to federal court in your state districtiv. 3rd party defendant cannot remove

c. Exception: where it’s a diversity suit and the defendant is sued in his home state court

6. Venue (28 USC 1391)a. (b) Venue is Proper:

i. In a judicial district where a D resides, if all D’s reside in same state. Reside does not equal domicile.

ii. Where substantial part of events giving rise to claim occurred1. Maybe if you had contract signed in a place, omissions of a

place, etc.iii. If you don’t have venue in the first two, you have venue in any district

where D is subject to PJ1. A corporation is subject to venue in any judicial district where

they have minimum contacts to satisfy PJb. (c) Residency for all venue purposes

i. Natural person including alien lawfully admitted for permanent residence in the US deemed to reside in judicial district where person is domiciled

ii. Corporations1. Defendant – any judicial district in which they are subject to the

court’s personal jurisdiction2. Plaintiff – only judicial district in which it maintains principal

place of businessiii. Non Resident of US – any judicial district and joinder shall be

disregarded in determining where the action may be brought with respect to other defendants

c. Trying to place the case in the place that makes the most sensei. Where most of the facts occurredii. Where there is a jury that actually cares about the caseiii. Where is most convenient for the parties

d. Venue is not constitutional, matter of statute and all procedural statues must have some sort of venue statute to organize system

e. Klaxon: federal court should apply the choice of law rules of the state in which it sits (federal court would apply whichever state’s law the state in which it sits would have applied.

7. Transfer of Venuea. Hoffman: Cases can only be transferred only to a district in which venue and

personal jurisdiction would be proper. Defendant cannot transfer the claim to a place they “consent” to have personal jurisdiction in. Can only be transferred if they actually originally would have personal jurisdiction there.

i. 2011 Amendment to 1404(a) says you can transfer any district to which all parties have consented, but absent consent from all parties, Hoffman applies.

b. Rule: 28 USC 1404 (Proper Filing in right venue): any party may move to transfer to any venue where suit might have been brought originally

i. Van Dusen: when a defendant seeks a 1404(a) transfer, the transfer is simply a change of courtroom and should not change the law that is applied. The district court of which the case is transferred should apply whatever law the transferring court would have applied.

ii. John Deere: when a plaintiff seeks a 1404(a) transfer, the the receiving court should apply the law that the original court would have applied.

1. P lost hand when caught in his John Deere harvester. Accident occurred in PA, which has two-year statute of limitations. After period expired, P brought suit against D in federal court in Miss b/c John Deere had general PJ there due to sufficient business. Miss. Statute of limitations was 6 years and that federal court would have to apply that. Then P moved for change of venue to PA and it was granted and federal court in PA had to apply Miss. law statue of limitations so P got to take advantage of Miss. Law without having to litigate there.

c. Rule: 28 USC 1406 (Improper Filing in wrong venue): court may dismiss or transfer even if statute of limitations has already run

i. Goldlawr: if case is filed in a district that’s not only improper for venue but also lacks personal jurisdiction, you can transfer it to remove whatever obstacles that may impede an expeditious and orderly adjudication of cases and controversies on their merits.

d. Rule 28 USC 1407 (Multi District Litigation Panel) Class Action Suits w/ multiple plaintiffs

i. Common question of fact between casesii. Convenience of parties

iii. Promote justice and court efficienciesiv. Can consolidate venues into one venue

e. Forum Selection Clausesi. Ricoh: if you file a case in another forum that is inconsistent with the

forum selection clause, this is a significant factor that figures centrally in the district court’s calculus but its not required for the court to transfer it there.

f. Can transfer Venue under 28 USC 1404 & 1406 within one systemi. Only can be transferred to a place that has personal jurisdiction and is a

proper venueii. Federal courts cannot transfer cases to state courtsiii. State courts cannot transfer cases to federal courtsiv. Federal courts CAN transfer cases to other federal courts anywhere in

USv. State courts cannot transfer cases to other states’ courts

1. State Courts CAN transfer cases between state courts in their state

vi. Every state has choice of law rules regarding which law should be used if parties come from different states

vii. If you transfer venue from NY to ME, you use NY’s choice of law rule, recognizing that NY’s choice of law rule may or may not dictate the use of NY substantive law

1. For instance, NY’s choice of law rule may say that you should use the law where the accident occurred, so in this hypothetical a transfer from NY to Maine would still result in the use of ME law (because the accident occurred in ME)

8. Forum Non Conveniensa. Dismissal of Case, NOT a transfer!b. Judge made doctrine used in federal courts to dismiss cases over which there IS

JURISDICTION but the relevant actors and events are sufficiently distant from the United States that the court decides to dismiss the case anyway.

c. In controversies concerning incidents abroad and non-US plaintiffs, the private interest factors will usually point strongly toward a dismissal, even if there are strong public policy justifications for holding an American defendant amenable to suit. Unclear how important the practical availability of an alternative forum should be.

d. Gilbert Factors in Piper v. Reyno are what courts use to decide to dismiss or not

i. Piper v. Reyno: Airplane crash in Scotland killing all passengers and pilot, all Scottish citizens. Piper aircraft with propellers manufactured by Hartzell. Administrator Reyno, from California, is representing Scottish Plaintiffs vs. Piper Aircraft (PA) & Hartzell (OH). Bring suit in CA state court b/c no strict liability in Scottish tort law and more favorable for P in US law. No SMJ issues b/c state court can hear anything as long as there is PJ.

1. D’s Remove to Federal Court: Diversity of Parties; no Federal Question likely b/c wrongful death tort suit is a state issue usually

2. PJ: No PJ over Hartzell so move to dismiss or transfer, but might be continuous and systematic contacts with CA b/c Piper has lots of planes there

3. Transfer from CA Fed. Court to PA Fed. Court: Piper says PA makes more sense than CA to hear the case (home court advantage) under 28 USC 1404 (a) and is transferred to PA court. Then court transfers Hartzell case to PA fed court as well.

a. Have PJ in PA and satisfy the venue statute

4. Law that Applies in PA Fed. Court: Piper is CA law b/c venue transfer, but Hartzell uses PA law since they contests PJ in CA

a. CA choice of law rule says CA substantive Law Applies to Piper

b. PA choice of law rule says Scottish Law (where injury took place) Applies to Hartzell

5. Forum Non Conveniens: Court dismisses b/c inability in US to implead third parties here would be detrimental to D’s; Scotland has very large interest in case; going to be difficult applying all of these laws (CA in PA, Scotland); subjecting D’s to US law puts them at competitive disadvantage due to witnesses, pilot, black box, etc. (Interest in Scotland greater) inconsistent verdicts might result if petitioners were held liable on different bases in US and in Scotland in two suits

a. P’s arguments against FNC: law less favorable to them in Scotland; potential evidence in PA; no inconvenience to D’ss now that they’re being sued at home/where they have a lot of contracts

b. Potential argument for FNC: if you don’t have the correct legal remedies in your country, then go lobby for them but don’t bog down our US legal system

ii. Gilbert Factors:1. Private Interest of Litigant is Primary; often leads to dismissal

a. Access to evidence/location of evidenceb. Ability to subpoena unwilling participantsc. Cost of acquiring unwilling witnessesd. Practical problems that make trial easy, expeditious and

inexpensive (other: cost/delay/efficiency)e. Enforceability of justicef. Relative advantages/obstacles to fair trial

2. Public/local interesta. Court congestionb. “Local Interest” in resolving local controversiesc. Diversity cases – federal court familiar w/ relevant state

law?d. Conflict of law problems, need to apply foreign lawe. Burden of jury duty on local actions

e. One Question Court will Ask: whether the other legal system where the case would be filed if dismissed in the US is sufficiently robust and fair that a US court would be willing to allow the dismissal so that the case could be brought there

9. Complaint (FRCP 8)a. File the complaint after you figure out what country the suit is in, what state,

whether you have the right venue, giving notice, whether or nor you have personal and SMJ.

b. Relatively Minimal Requirements (FRCP 8(A))i. Short & Plain Statement of Claimii. Short & Plain Statement of basis for Federal Court Jurisdictioniii. Nature of Relief Sought (May be Vague) Forms 7 & 11 FRCP

c. Twombly & Iqbal (higher standard; need “plausibility” rather than mere possibility; have to look inside the pleading now. No longer “notice pleading.”)

i. In both cases, the acts of the Defendants would be legal if they were undertaken with the proper state of mind and the ONLY thing that makes them illegal is if they were undertaken with an improper state of mind

ii. Bell Atlantic v. Twombly: Twombly brings class-action suit against Bell Atlantic and other large phone companies for engaging in anti-competitive behavior in violation of § 1 of Sherman Act in acting in order

to disadvantage smaller telephone companies and charge consumers more by refraining from entering markets where other large companies were dominant and thereby preventing price wars which are beneficial for consumers.

1. Twombly’s complaint didn’t provide enough facts for court to find it plausible that companies engaged in conspiracy. Only provided factual bases for parallel conduct and merely stated that an agreement had taken place with no details to support their allegation.

2. Rule: Plaintiffs msut include enough facts in complaint to make it plausible – not merely possible or conceivable – that they w ill be able to prove facts to support their claims. Complaint will be plausible when pleaded factual content allows court to draw reasonable inference that D is liable for misconduct alleged.

iii. Ashcroft v. Iqbal: Iqbal (Pakistani-American cable installer from Hicksville, NY) arrested in NY in 2001 on conspiracy charges to defraud the US and fraud in relation to ID documents. Placed in pretrial detention at jail in Brooklyn for over six months and subjected to torture. Brought claims against US saying FBI director Robert Mueller and former US Attorney General John Ashcroft were not immune against his allegation that they knew of or condoned racial and religious discrimination against individuals detained after 9/11 attacks. Federal government argued his legal filings not specific enough to link government officials with policy of detaining Arab immigrants/Muslims.

1. Held that Iqbal’s complaint failed to plead sufficient facts to claim a purposeful and unlawful discrimination b/c he alleged they agreed to subject him to torture as a matter of policy based on discriminatory factors and for no legitimate penologiacal interests were conclusory and couldn’t be entitled to be assumed true b/c the complaint didn’t contain facts plausibly showing that their policy was based on discriminatory factors (no reason to assume these people acted in racial discrimination they rounded up lots of arabs but if they were looking for terrorists it may seem reasonable)

2. Two Part Rule:a. 1) Court cannot accept as true all allegations in

complaint if complaint consists of legal conclusions without support from factual allegations

b. 2) Only complaint that states a plausible claim for relief survives a motion to dismiss

i. In order to figure out if claim is plausible, context-specific task that requires court to draw on judicial experience and common sense

d. After Twombly & Iqbal, every D in the country made claims to dismiss their lawsuits based on these cases!

10. Answer (FRCP 12)a. FRCP 12(a)(1)(A): A D must serve an answer:

i. Within 21 days after being served with the summons of the complaint; orii. If it has timely waived service under Rule 4(d), within 60 days after the

request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the US

b. FRCP 12(a)(1)(B): A party must serve an answer to a counterclaim or cross-claim within 21 days of being served with the pleading that states the counterclaim or cross claim

c. FRCP 12(a)(1)(C): A party must serve an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

d. Once the P files the complaint, you as the D can either file an Answer or a 12(b) Motion or combine them into one thing (usually this is done)

i. Most 12(b) motions are use them or lose them defenses (if you want to file a 12(b) motion separate from you answer, you should do the 12(b) first)

ii. Every defense to claim for relief in pleading must be asserted in responsive pleading if one required, but the 12(b) ones can be asserted by motion

e. 12(b) Pre-Answer Motions to Dismiss (Affirmative Defenses)i. (1) lack of SMJii. (2) lack of PJ*iii. (3) improper venue*iv. (4) insufficient process*v. (5) insufficient service of process*vi. (6) failure to state a claim upon which relief can be grantedvii. (7) failure to join a party under Rule 19viii. *12(h)(1): defenses are lost if not used in initial response

1. 2, 3, 4, & 5, (6?)f. What your Answer can Say:

i. Admit a Statement in the Complaint1. Can admit material facts or just supplementary facts that have

nothing to do with the suit but are true, just don’t want to admit your negligence caused it narrow down the sorts of issues that are going to go on trial!

ii. Deny a Statement in the Complaintiii. Deny for Lack of Knowledge at this Preliminary Stage

1. Then you have to investigate later on thoughiv. Present Affirmative Defenses

1. “Yes, I did this thing you accuse me of, but there is a reason that I did it and the law countenances such a reason!”

2. This is a Defense/Shield but the person asserting the defense has the AFFIRMATIVE DUTY to plead and prove it!

3. NOT A COUNTERCLAIMv. Bring in any Counter-Claims, Cross-Claims or Impleaders (FRCP 13)

1. FRCP 13(a)(1) (Compulsory Counterclaim): MUST state counterclaim if the counter-claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim and does not require adding another party over whom the court cannot acquire jurisdiction

a. (a)(2): The pleader need not state the claim if when the action was commenced the claim was the subject of another pending action; or the opposing party sued on its claim by attachment or other process that did not establish PJ over the pleader on that claim

b. Requires compulsory counterclaims that arise out of same transaction or occurrence to be brought in same lawsuit (one suit to decide over main issue)

c. This is b/c efficiency would dictate that both the P and D’s claims should be in one package if over the same issue

2. FRCP 13(b) (Permissive Counterclaim): a pleading MAY state as a counterclaim against any opposing party any claim that does not arise out of the same transaction or occurrence.

a. Allow permissive counter claims because litigation would become insane if you made it a rule that every single claim by the D against the P had to be brought in one lawsuit

3. Compulsory Counter Claims will always satisfy § 1367(A), which means Permissive Counter Claims will never satisfy § 1367(A) because it requires transactionally related.

a. Plant v. Blazer: P sues under truth and lending act (federal claim) claiming D misrepresented terms of the transaction. D files counterclaim against P for payment on loan (state contract claim) which is compulsory because its related to the transaction. No federal question jurisdiction or diversity over counterclaim because it’s a state court claim.

i. Court uses 28 USC § 1367(A) to gain supplemental jurisdiction over the counterclaim b/c its out of the same transaction and there’s no independent source of SMJ

4. FRCP 13(g) (Cross-Claim): A claim brought by a co-party against another co-party. Two D’s that P joined and one of them is suing the other! Cross-claims must arise from the same transaction or occurrence as does the complaint. Cross-claims are always permissive. This will also satisfy 28 USC § 1367(A) for supplemental jurisdiction. Once claim is asserted, regular claim joinder, party joinder, and counterclaim rules apply (b/c joinder rules apply to all parties not P or D alone)

g. Paragraph by Paragraph, number by number, issue by issue11. Joinder

a. Joinder rules do not refer to plaintiff or defendant. Not limited to plaintiffs, any party can join another party.

b. Joinder rules do not confer jurisdiction. Thus, you must ask (1) do the federal rules permit the joinder, and if so, (2) is there an independent basis of jurisdiction, and if not (3) is there supplemental jurisdiction.

c. First Question to Ask: Can I add this claim or party under the rules of Joinder?

d. FRCP Rule 18(A): Each party MAY bring any other claim it has against every other party (related or not related factually, independent or alternative, etc.)

i. Permissive, not compulsory so you don’t have to bring all of these thingse. If you add a new PARTY, then ask, “Is there PJ, Federal Jurisdiction, Notice,

and Proper Venue of this added party?”i. Need to serve them with process as if you’re the plaintiff for this part of

the claim (Notice)ii. Does the new party mess up Federal Jurisdiction?

1. Finley v. US: P’s husband and two children killed when airplane they were travelling ion struck electric commission lines during approach to San Diego airfield. P brought Federal Tort Claims Act suit in federal court against US for negligence of FAA in maintaining runway lights and performing air traffic control duties. Later amended her complaint to add state tort law claims against city and utility company that maintained the lines. Because P and the new D’s were co-citizens of CA, no independent basis for SMJ under diversity.

a. Scalia says no supplemental jurisdiction allowed here b/c FTCA didn’t explicitly authorize jurisdiction

over additional parties and supplemental jurisdiction required such statutory authorization. Acknowledged Gibbs applies to pendent CLAIMS but not to pendent PARTIES

b. Eventually reversed by 28 USC 1367 which allows federal jurisdiction

2. 28 USC § 1367(a): Court will have supplemental jurisdiction over all claims out of same transaction or occurrence (same litigation package)

3. 28 USC § 1367(b): P cannot get supplemental jurisdictions against a person made a party where there is already diversity jurisdiction in the main case. Doesn’t apply to (Only claims brought by P’s in diversity cases and only meant to get to problem where you have P potentially trying to get around complete diversity requirement trying to sue someone in the same state when they couldn’t originally)

4. 28 USC § 1367(c): always potentially applies looks to discretionary factors to see whether state claim should really be brought in state court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if:

a. the claim raises a novel or complex issue of state lawb. the claim substantially predominates over the claim, or

claims over which the district court has original jurisdiction, or

c. the district court has dismissed all claims over which it has original jurisdiction, or

d. in exceptional circumstances there are other compelling reasons for declining jurisdiction

iii. Does the new party change the Venue?iv. Permissive Joinder of Parties (FRCP 20)

1. Adding Multiple P’s or D’s on same side of V if transactionally related – Any party can join another party to P side or D side

2. A party may be joined if:a. a right to relief is asserted by or against them jointly,

severally, or in the alternative; AND the right to relief arises out of the same transaction or series of transactions; AND there is at least one question of law or fact common to all parties

3. Permissive, so party not required to join all potential parties who satisfy Rule 20.

4. Schwartz v. Swan: P was injured in 2 separate auto accidents, the second one ten days after the first. P brought suit against both sets of drivers alleging later accident aggravated injuries suffered in 1st accident and unable to tell extent to which either accident contributed to her injuries. In first, sister in law driving her. In second, husband driving her. P’s husband also brings suit against both sets for loss of consortium in same pleading as P’s. Sister in law also brings suit against first set of drivers in separate complaint from P and her husband. All three D’s move to sever cases – first party of two drivers want claims to be separate from second party of one driver and court grants this. First party of drivers then joined sister in law in same case as P and her husband. Now two cases (one P, husband, sister in law v. first driving party) and other P, husband v. second driving

party. P’s lose at trial, now on appeal deciding on whether claims should have been severed and then if sister in law’s count should have been joined.

a. Under state rules of civil procedure (Illinois state case) can sue for anything they want for same defendant, can join claims against defendant together; when liability arises out of same transaction or serious of transactions they can join; alternative pleadings are okay; is it convenient? Yes!, same series of transaction an be joined (within days of each other and related to her injury)

b. WHAT TO TAKE AWAY FROM THISi. Rule 20 permits joinder of parties if

transactionally – related. If Schwartz v. Swan were in fed. Ct., Bray and Abernathy could easily be joined; Polivik could only be joined because the injury question makes the two accidents sufficiently related.

ii. Polivik is complicated because it was a separate accident that occurred two weeks later

iii. Only could be joined if the two accidents were within the same series of transactions

v. Compulsory Joinder of Parties (FRCP 19)1. Parties that must be joined are those necessary and

indispensable to the litigation2. Note, though, that while "necessary" parties must be joined if

that joinder is possible, the litigation will continue without them if joinder is impossible, for example if the court does not have jurisdiction over the party. If indispensible cannot be joined, by contrast, the litigation cannot go forward.

3. A party should be joined if that party’s presence is:a. Required to grant complete relief to existing parties

or protect its interests or those of another party ANDb. The joinder is feasible (party is subject to service of

process and joinder doesn’t destroy diversity)c. If both requirements are met, the party will be deemed

“necessary” and the court will order a joinder.d. If joinder is not feasible, court must assess whether

it should “in equity and good conscience” proceed with the litigation without the absentee or, in the alternative, dismiss

i. Four factors in making determination1. To what extent will judgment be

prejudicial to absent party2. To what extent can prejudice be

tempered by protective provisions in the judgment or by shaping the relief granted

3. Whether a judgment rendered in the party’s absence will be adequate

4. Whether the plaintiff has somewhere eels to go if case is dismissed for nonjoinder

vi. Impleaders (FRCP 14): Defendant adds a third party that they want to sue. Almost as if it were a new suit (defendant v. “x”)

1. A party in a defensive posture MAY bring into the case new parties who may be liable to the original party for some or all of the judgment obtained in the initial claim. The party impleading is then additionally referred to as the third-party plaintiff, and the impleaded party is identified as a third-party defendant. In determining whether to permit impleader, the court will balance the desire for complete resolution of all related issues with any possible prejudice to the party who first raised the claim. If it denies impleader the third party claim can be brought as a separate action.

2. 14(a)(2)(A): third party defendant must assert any defense against the third-party plaintiff’s claim under Rule 12

3. 14(a)(2)(B): must assert any counterclaim against third-party plaintiff under rule 13(a), may assert any counterclaim under rule 13(b), or any crossclaim against another third party defendant under 13(g)

4. 14(a)(2)(C): may assert against the plaintiff any defense that the third party plaintiff has to the plaintiff’s claim

5. 14(a)(2)(D): may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third party plaintiff

6. 14(a)(3): Plaintiff may assert against third party D any claim arising out of the transaction or occurrence that is the subject matter of the P’s claim against the third party P. The third party D must then assert any defense under rule 12, counterclaim under 13(a), may assert counterclaim under rule 13(b) or crossclaim under 13(g)

7. Owen Equipment & Erection Co. v. Kroger: Kroger is electrocuted while operating a crane. He is from Iowa, decedent sues Omaha Power District (that’s where energy flowed from) from Nebraska for wrongful death claim. There is diversity b/c Iowa & Nebraska & suit for millions. OPPD then impleads Owen Equipment (the crane operator) from Nebraska as well. Now there is a problem because OPPD & Owen are both from Nebraska and there is not complete diversity in the new impleader case, nor a federal question. Then Kroger adds claim against Owen.

a. 1367(A) applies b/c claims transactionally related (impleaders are always transactionally related)

b. 1367(B) might apply b/c original basis for being in federal court is diversity but doesn’t apply because claim was not brought by plaintiff

c. SO, there is supplemental jurisdictiond. Added claim against Owen by Kroger

i. Satisfies 14(a)(3) b/c arising out of same transaction or occurrence

ii. And, same accident so transactionally related so supplemental jurisdiction

iii. However, Owen has principal place of business in Iowa, so no more independent basis for SMJ (IOWA + IOWA)

iv. Because of this, Kroger can’t bring the case against Owen b/c doesn’t satisfy 1367(B) the basis of the original case was diversity jurisdiction and now theres no complete diversity

between original P and new third party defendant!

8. 1367(b) does not allow for supplemental jurisdiction for claim between original P and new third party defendant impleaded. Only can bring claim if there is independent means of SMJ (diversity & federal question!)

f. If you add a new CLAIM, then ask, “Is there an INDEPENDENT BASIS for SMJ over this added claim?”

i. Diversity or Federal Question Jurisdiction over added claimii. Treat the added claim as if it were it’s own case (in terms of Diversity

Jurisdiction, etc. only the original D and the new P need to be on opposite sides of the “v”, the main P doesn’t matter!

iii. If not, and ONLY if there is not, you then ask, “Is there SUPPLEMENTAL JURISDICTION under 28 USC 1367 (+Gibbs)”

1. United Mine Workers v. Gibbs (Pre-Statute): Gibbs loses job as mine superintended because of UMW workers protests. Two complaints: one federal that they violated labor relations act and other one state tort claim for interference with employment relationship under common law of Tennessee

a. Brennan established the test for pendent jurisdiction known as the "common nucleus of operative fact": the claims must derive from the same situation, such that a plaintiff would ordinarily expect to try them all in one judicial proceeding

b. Pendent jurisdiction is inappropriate if federal law claims are dismissed before trial (then state ones should too) and if the state claim is predominant

c. Permits addition of non-federal claims as long as they are transactionally-related and do not overwhelm the federal claims

i. Don’t want the pendant claim (the state claim) overwhelming the federal claim.

ii. Justification lies in considerations of judicial economy, convenience and fairness to litigants

d. SAME 28 USC § 1367 RULES AS ABOVE IN PARTIES!

12. Consolidation (FRCP 42)a. If actions before the court involve a common question of law or fact, the court

may:i. Join for hearing or trail any or all matters at issue in the actionsii. Consolidate the actions; oriii. Issue any other orders to avoid unnecessary cost or delay

b. For convenience, to avoid prejudice, or to expedite and economize, the court may order a spate trial of cone or more separate issues, claims, cross claims, counterclaims or third-party claims.

13. Alternatives to Litigationa. Always look at alternatives to litigationb. Use of negotiation, mediation, compelled mediation, arbitrationc. Think about pros and cons of pursing these avenuesd. How to bring up on Exam?

i. Lets pretend you’re a lawyer in a party (in the midterm you were just a clerk to a judge so you were limited in discussing whether or not they should go to a mediation discussion before the trial)

1. You should at least think about other avenues to resolve your complaint or the claim think about the strategic advantages and disadvantages of doing it that way

14. Buffalo Creek Discussiona. Settlement they got at the end was better than what they would have gotten in

the beginning (procedural processes changes the bargaining power)b. Claiming negligence and want to bring this Tort suitc. Turns out that we in the US do a lot of our regulation through the individual

plaintiffs bringing individual cases in the tort systemd. Litigation is almost always retrospective (something bad has already happened;

somebody has been harmed) one of the advantages of a legislative solution or regulatory solution is that you can look forward and say “how do we want mine dams to be constructed in the future; and possibly in more specific ways instead of just saying you’re negligent, do better next time”

e. You might not trust that the safety of mine workers would be a paramount concern of the legislature or the regulatory agencies in charge; maybe a legal process provides more of a voice to those who don’t have power in the legislative process than if we left it to the legislative arena alone

f. Might be a better way for the victims to have their voices heard (litigation)g. Considered fighting under a statutory suit (federal waterways violation)h. Buffalo Creek case makes clear that even cases that settle, do so “in the shadow

of the law”i. Why would it matter if you used a broad tort idea or a federal statute?

i. In many states, the state court judges are elected and if you’re elected, you need to run campaigns, and in this era where campaign contributions are unlimited, you have a strong incentive to raise money and if you want to raise money in West Virginia you will probably raise money from West Virginia Coal Industry

ii. Federal judges have lifetime tenure and have insulation from political pressures

iii. Federal courts are funded better cases tend to move through the system faster

iv. Lawyers tend to prefer to be in federal courtv. Pre 1945 – there were huge differences; almost like an entirely different

set of lawsvi. Erie doctrine made it so that federal courts have to use the same rules as

the states in which they sit; but still some differences in procedurej. How do you get into federal court?

i. If there’s a claim under federal lawii. Why not just sue them in New York if Pittison is in New York?

Hometown Bias unfair to one of the parties?k. Parties sometimes try to change the venue of the case from one court to

another; from one state to anotherl. This is why it was so important to pierce the corporate veil and sue Pittiston

instead of Buffalo Mining Company