Civil Procedure I: Schwarzschild Outline 3
Civil Procedure I
Class Notes
Notes
8/21/07
M.
Schwarzschild
Rm. 318
Ph
619-0260-2343
The
functions of the court:
-Be as fair
as possible (justice)
-Be
efficient
-To give
people a proper amount of participation
What is the
court system?
State
courts, federal courts
Which courts
are going to be appropriate to resolve any dispute or potential dispute?
What are the
California State Courts?
-Superior
Court, the court of general jurisdiction.
There are inferior courts, such as traffic court, etc.
There will usually be a Supreme Court in every county.
-Court of
Appeals (6 appellate districts in the
-CA Supreme
Court
Application
for a writ of certiorari
Federal
Court
U.S.
District Court—the trial court of general jurisdiction
There are
other specialized Federal Courts (US Military,
Where can
you expect to find the Federal Trial Court?
There will be at least 1 in every state.
We are in the USDCSD.
Finish off
court system, then turn to what the jurisdiction of these courts are.
Notes 8-23-07
http://www.sandiego.edu/~maimons
3 layers of
courts, a trial court of generalized jurisdiction
The loser in
a District Court has a right of appeals to the U.S. Court of Appeals.
They can appeal to the U.S. Court of Appeals, organized in geographic
regions. Each circuit embraces more
than one state. We are in the 9th
circuit. Typically 3 judges hear an
appeal, and the appeals are as of right.
Sometimes there will be a hearing before the entire panel, of all
appellate judges in the circuit, called en banc (French for whole bench).
If you lose
your appeal in the District Court, you can appeal to the U.S. Supreme Court,
which has 9 justices. Almost never
do you have an appeal as of right.
Almost entire docket by certiorari.
Is there any
crossover? Can you ever go from the
Federal system into the state system? No.
One little exception. Once
you are in a system, whether it is the state system or the Federal system, you
are in it.
What about
crossover from the State Courts to the Federal system?
Short answer is no. Once
your case is underway in the state system, you are in the state system and you
must stay there. What exception,
when it’s all over. Exhaust
remedies in state courts, and you say they were wrong on a federal issue, if you
claim this you can then apply for certiorari to the Supreme court.
If you do cross over, it is going to the Supreme Court, not to the
State Courts
deal with Federal issues every day, and have since the outset.
Federal Courts deal with state issues as well.
System doesn’t preclude you from hearing Federal and State issues in a
state court or Federal court.
Perfectly legitimate and fairly common.
Fact that there is a Federal issue, whether it is raised by plaintiff or
defendant, doesn’t mean it can be heard in state court and decided in state
court. Are there any Federal
provisions, and ultimately you can go to the Supreme Court if they grant
certiorari.
Double
jeopardy applies only to the Federal government and only within the federal
system. Can be punished in both
Federal and State system.
Who decides
where a criminal case starts is the prosecutor.
Who needs to authorize a Federal constitution?
5th gives right by Grand Jury.
Every Federal prosecution begins with an indictment by a Federal Grand
Jury. States, do not require that.
Grand jury provision not held under 14th amend to states.
Infirmation, prosecutor sings a certain paper, saying I am initiating
this prosecution, it is called an information.
Civil case,
the plaintiff decides whether to sue in Federal or State court.
Can
defendant file a motion to move action to state court?
Short answer is no.
Do I want to
sue in state court or federal court and do I want to stay in that system if I
can?
Looks weird,
one country but two separate systems of court systems.
Difference in substantive that can differ from state to state?
The death penalty is an example.
What is the
jurisdiction of Federal Courts, and what kinds of cases are under the
jurisdiction of the state court?
Colors how the whole system works.
Must know to fingertips. Must know
what Federal Courts can deal with and what State Courts can deal with.
What
justification is there for a Federalist system?
Good or bad,
this is what we have.
Federal
courts are courts of limited jurisdiction. Immensely important, it is a theme
for the rest of this course. Not
only are Federal courts, courts of limited jurisdiction, but what are the powers
of the Federal government? What are
the powers of the state government?
State
government has full power, except what the constitution forbids to the states.
Article I, section 10 is directed to the states.
What can the
Federal Government do? Make war.
Regulate commerce. Foreign
affairs. Receiving ambassadors.
Federal government can only do what the constitution authorizes.
States are governments of plenary power, except where the constitution
denies them power. Federal
government is a government of delegated or enumerated power.
LIKEWISE FOR THE COURTS.
What is the
jurisdiction of the state courts? Everything.
What is the
jurisdiction of the Federal Courts? Article III of the
Subject
matter jurisdiction, state courts have everything.
Subject
matter of the Federal courts is limited.
Also need
personal jurisdiction.
Notes 8-28-07
10th
Amendment—embodiment of Federalist, Article 3 lays out a delegated limited power
of the Federal Courts.
-Personal
Jurisdiction
-Subject
Matter Jurisdiction-state court extends to everything, Federal courts limited in
principle by 10th Amendment and more specifically by Article III of
the constitution.
Personal
jurisdiction-why not say all courts have jurisdiction over everybody.
Due Process, 14th Amendment.
Also, if you
haven’t been given notice and you never hear about it and they give a judgment
against you, that is a default judgment.
This is not fair either.
Joy of
Federal system, not only that you have 50 court systems, question of not only
which court you should be in, but which law should it be under.
We already know that state courts hear federal court issues.
Federal courts hear state issues and state courts hear Federal issues.
Pennoyer v.
Neff
1st
litigaton: Mitchell sues Neff for
attorney’s fees-DEFAULT judgment against Neff, since Neff was not in the state.
2nd:
Mitchell gets land and conveys it to his crony Pennoyer.
Neff found out his land is taken away and brings suit.
Sum of it, there was no jurisdiction in the first case.
Issue before
the Supreme Court: Was there
jurisdiction over Neff? No.
Pennoyer
known as the great presence case in personal jurisdiction.
Presence in the state.
Court has
jurisdiction over you if court has established your presence.
You are domiciled there, you are physically there.
Is notice
the same thing as jurisdiction? No.
A court can give notice to anybody.
If the dispute is over land, if there is land within the jurisdiction and
the court, what kind of issue does the court then have jurisdiction to decide?
Anything about the land.
You get two
flavors of personal jurisdiction:
1. In
personam-as to the person
2. In rem-a
thing-does bind the thing, can adjudicate as far as the thing is concerned,
including who owns the thing.
3. Quasi in
rem (was or used to be)-adjudicates the status, custom, or ownership of
property. Was a hybrid.
Could get damage, up to the value of the asset.
Litigate the liabilities of the person and then get compensation from the
asset.
You can’t
retrospectively change a personal jurisdiction case into a quasi in rem action,
which would have resolved the initial Mitchell v. Neff dispute.
Suppose I
put it in terms of Corporations?
Companies, manufacturerers, etc.
Hess v.
Pawloski
Plaintiff in
error might be the appellant, terribly confusing…
Drove to
Mass and wanted to sue, and would like to sue in
Supreme
Court
Does
international shoe rely on a fiction?
Will finish
personal jurisdiction, will at least get through, number 3 and into number 4.
Notes 8-30-07
Personal
Jurisdiction
International Shoe:
Company
incorporated in
Dispute,
statute in
Legal
persons, and natural persons.
Legal,
person amenable to being sued.
Corporation is a legal person.
International Shoe: Are they
Pennoyer present? This is a
question of law. The fact of the
law is, in the state of corporation and in your principle place of business, if
they are different, you are Pennoyer present.
Interlocutory : in the course of a conversation, appeal that goes up, once there
is a decision on a preliminary question, but before the case is decided.
In general no interlocutory appeals in the Federal court.
The appeal
was strictly over jurisdiction. The
most they can find is that there is jurisdiction.
To have personal jurisdiction there need to be some minimal contacts.
They get benefits from the state.
If a problem arises court will be open to International Shoe.
If you take advantage of our state, you submit to being sued, at least
with respect to the activities in the state.
You may
think this is not a lot of presence, should they be subject to suit for the slip
and fall in
Justice
Black: New Dealer, came from
NO activity
in the state,
Transacting
business
nothing
Looking at
other cases, see what might be required for:
Gray v.
American Radiator & Standard Sanitary Corp
Pennoyer
presence, when you are present in the state and when you are served.
Headquarters is Pennoyer presence.
State of incorporation.
Victim
little guy, and corporation can pay.
Buy
something, then drive, explodes in another state.
Under this reading of the statute, it is the tortious act.
The plaintiff must go to where the tortious act takes place.
McGee:
Are they Pennoyer present?
No, no office, no agents in CA. Why
are they subject to suit in
Notes 9-04-07
Commissioners for Uniform Laws. Is
there a uniform personal jurisdiction code?
Have all states enacted an indentical statute or policy?
How does
Is doing
business more or less than transacting business?
What we mean
by doing business is continually doing business.
If you are doing business in the state, you are not domiciled in the
state because you are headquartered somewhere else, if you are doing something
in the state, you are subject to general jurisdiction.
Least
plausible assertion of jurisdiction here:
If you are doing business in the state, it is constitutional to assert
jurisdiction over you. 302-3
International Volkswagen
We don’t do
business in
South in
general has a dislike for out of state corporations. Plaintiffs may have a
variety of reasons for wanting to try the case in
Not fair to
drag company to
How is
Hustler distinguishable, how does it come out?
Notes 9-06-07
No Class
next Thursday.
3
possibilities for personal jurisdiction:
Is there sometimes no jurisdiction? Yes.
Whom is personal jurisdiction an issue for?
The defendant. Presence is a
basis for jurisdiction. Personal
jurisdiction over the plaintiff is not going to be a problem.
Pennoyer itself as far as it goes is still good and descriptive about how
the system works. What did Pennoyer
say about personal presence? It is
the basis, if not the core basis to personal jurisdiction.
If a natural or legal person is present, then there is jurisdiction over
them. In order to be a plaintiff,
you have to be in the state.
Minimal
contacts in the state, you can be sued from disputes arising from such contacts,
this is specific jurisdiction.
What is the
easiest way and least controversial way of establishing jurisdiction over a
defendant? Suing or serving them
when they are personally present, or if they are domiciled in the state.
Describe a
situation when there clearly won’t be jurisdiction over a potential defendant:
1. Defendant
not present in the state, and never been in the state, and he doesn’t have the
even minimum contacts with the state, that are required by the law (Due Process)
to exercise personal jurisdiction.
3
Possibilities:
1. No
jurisdiction
2. There is
jurisdiction
3. General
Jurisdiction
4. Specific
Jurisdiction
No office,
no factory, no permanent employees, a tough sell to argue systematic and
continuous.
Under Hess
or International Shoe, McGee, know them as specific jurisdiction cases.
Helicopteros:
For Tuesday:
Read 5 and 6.
Notes 9-11-07
Statutes—we
claim personal jurisdiction over anybody that due process says is
constitutional. Court has
trifurcated:
1. No
jurisdiction (Δ automatically wins)
2. Defendant
transacted enough to sue about any claim arising out of the contact (Hess,
International Shoe)
3.
Defendant’s contact with the state are sufficiently large and substantial that
it is fair to sue them not only on claims arising out of what they have done on
the forum, but on claims that did arise out of the forum.
Helicopteros
case:
Try to
establish general jurisdiction
“continuous
and systematic” look for an office.
Some states
have statutes saying that if you register your office in the state you are
subject to general jurisdiction
If you are
the plaintiff, are you happy with your lawyers?
Probably not.
Can claim
that the helicopter was negligently prepared in
Ebay:
Why is ebay
and the technology for which it is a symbol a problem for the whole scheme of
personal jurisdiction?
Whether the
claim arises out of activity in
Harris v.
Balk
Debt
adjudicated in
Complicated
because the debt seems nebulous.
In rem
doesn’t adjudicate the person, just the thing.
Quasi in rem
- Harris v. Balk, no personal jurisdiction over Balk, but Epstein says Balk’s
property is in the state. The
property is the debt.
Shaffer v.
Heitner
Notes 9-18-07
Quasi-in rem
jurisdiction, Shaffer
In order to
satisfy due process, what is needed to satisfy jurisdiction?
According to Pennoyer, presence.
Since Pennoyer, in addition states can exercise some jurisdiction over
people who aren’t present as long as a state has a long arm statute.
Did
Quasi in rem
jurisdictioin goes back to Pennoyer.
Case involving metaphysical property.
What is
wrong with quasi in rem jurisdiction?
If there is Quasi in rem, would it grab the directors who own shares?
With
appropriate contacts and a long arm statute, you have personal jurisdiction.
Sum Up:
In personam
jurisdiction: presence, minimum contacts (cause of action must arise out of
minimum contact), consent, continuous and systematic contacts (gives in personam
to any cause of action),
After
Shaffer what about quasi in rem jurisdiction?
It’s gone, if you have to establish minimum contacts, it will just be
personal jurisdiction.
Does not
mean that in rem jurisdiction is gone?
No. Classic in rem case?
Burnham:
Served with papers from a lawsuit, came to
Scalia,
because he is present and because he was physically served, it is one of the
oldest principles that the court can assert jurisdiction.
Physical
presence makes you available to a lawsuit while you are there.
What about
consent, is it a basis for personal jurisdiction?
Yes. What about an adhesion
contract?
9/20/07
Personal Jdx by Consent cont.
·
Forum Selection Clause (aka Adhesion K clause)
o
Are they reasonable?
§
Carnival case said yes.
o
What about online agreements?
§
Should/does it matter if it’s a browse wrap or
click wrap agreement?
ú
Both are adhesion agreements, both are binding,
you must click on “I agree” to continue on the website. One already has the
agreement there for you took @, the other you have to click a link to see the
agreement.
§
Should courts leave it to the marketplace to
determine what’s reasonable? Prof leaves us to answer it on our own
Challenging Jdxn
Special Appearance: when law of the
state permits you to come into the state SOLELY to challenge personal jdxn.
·
By coming in, you don’t give consent to jdxn
·
If you lose in this special appearance and then
leave:
o
1) there will be a default judgment against you
and
o
2) the ∆ (you) can’t re-litigate in the ∆’s
home-state to say that there wasn’t jdxn in the forum state (
§
under the Constitution, the home state has to
give full faith and credit to the judgment to the forum state
·
So why give a special appearance?
o
You may persuade the forum court there is no jdxn
over you!
§
Many states hold that if you stay in the sate and
litigate the issue on the merits and lose, then you can appeal jdxn as well as
the judgment
·
If you don’t make a special appearance, there
will be a default but you can
question jdxn in ∆’s state b/c there’s no contested judgment about the jdxn from
the forum state.
·
If you show up for special appearance, you lose
and the court determines your case on the merits, you can’t appeal based on the
facts! Never have an appeal about the facts – only about the law.
o
If you are in a state court, don’t forget that
the only federal court you can appeal to is the Supreme Court. Not likely your
case will come before them. They can only see your case if your saying that the
state court judgment is a violation of a
federal law (ex. fed. Statute that pre-empts or trumps state law, due
process, etc.)
General Appearance: If you appear
generally, you are giving the court general jdxn over you (ie, giving consent)
Final Thoughts:
·
Does
Shattner abolish all quasi-in-rem Jdxn?
o
Case says that to bring a case in quasi-in-rem
the ∆ has to have minimum contacts – which means you have personal jdxn as long
as you also have a long arm statute.
·
Some states have much more narrower/specific long
arm statute (doesn’t always give the leniency that Constitution allows)
o
You can still sue quasi-in-rem bc the old way is
still deeply embedded in the legal system. You just need to make sure that ∆ has
assets in the state!
·
Point: Don’t kiss-off quasi-in-rem
·
If you sue quasi-in-rem in IL and your beef w/
the ∆ has nothing to do the assets, but the ∆ has assets there and ∆ has minimum
contacts in respect to the lawsuit, and IL had a long arm statute, then it would
meet due process requirements. Court here would give a default judgment up to
the amount of the assets if ∆ doesn’t show up for the lawsuit.
o
Is it res judicata that ∆ is personally
responsible for what the court gave damages for? NO.
o
If you go and litigate under a general
appearance, then yes, it’s an in-persona judgment binding on the ∆ AND the
assets
§
Limited
appearance = coming to dispute the minimum contacts.
Litigation Process
·
Governed by the FRCP.
FRCP
·
Drafted in theory by the
·
First enacted in the ‘30’s as part of the “new
deal” reform era
·
Principle behind the fed. rules: make it simple
and as transparent and accessible as possible – even to non-lawyers. Minimize
what gets criticized as technicalities. Make it fair and efficient.
·
47 or 48 has enacted the FRCP as their own state
rules, with minor provisions. But 98% or 99% of the time, the actual text of
these state's procedural rules are the FRCP.
o
CA is not one of these states
§
CA procedural code adopted in 1920’s.
ú
Considered a big reform move in CA. Said to have
the same goals (fairness, efficiency, transparency) but the layout is completely
different.
ú
FRCP in 30’s were influenced by what happened in
CA.
·
They took in substance, a lot of what CA’s rules
said – but not the layout.
Procedure
1st thing that needs to happen: NOTICE
·
Π needs to notify ∆ that he’s getting
sued/there’s a dispute
o
Form that says ∆ is getting sued = summons.
§
Summons says: you are being sued in x court in
this place and time, and attached is a complaint of why you are being
sued.
Actions taken in a lawsuit are mostly often via paper
·
Heading on top left of each paper you turn into
the court lists:
o
1) π v. ∆
o
2) Court (USDC for the Southern District of
California)
o
3) Case #
§
Civil = CA1234567 (CA= civil action)
§
Case # issued when you go to clerk’s office
§
If you end up in supreme court of US, then you
will get a different case #.
Form 1: Summons
·
Text of the summons = you are summoned and
required to serve an answer to the complaint which is served to you w/in 20 days
after service of this summons by you. If you fail to do so, judgment by default
will be taken against you.
·
How a summons gets served
o
File it w/ clerk
§
Get civil action #
o
If proper, clerk will sign and seal it and give
it to π to make sure it’s given to the ∆.
§
In olden times, for fed court, needed
a
§
Rule 4(c)(2): Π CANNOT serve ∆ - can’t be served
by a person who is a party to the suit
o
Can serve by mail so long as state law allows it
o
Rule 4 regulates summons:
§
Summons served w/ complaint
§
May be effected by a person who is NOT a party
§
Who is @ least 18 yrs of age
§
By request of π, can have court direct a
§
4(2)(e) tells you the means by which this is
done:
ú
(1)Either in pursuance to state law where the fed
court sits
ú
OR (2) by doing it under the federal ways:
·
1) by leaving copies @ the dwelling house (or
usual abode) of the ∆, or to someone in ∆’s home who is of suitable age or to an
agent
o
can’t leave it @ the office (unless state law
provides for it, which would then fall under 4(2)(e)(1))
·
2) OR Personal service (delivering it literally
to the person)
o
Personally delivery doesn’t mean it has to be
delivered in the hands of the ∆.
·
Rule 4(d) not only says that you can waive
service of summons, but that you pretty much have to!
o
If you don’t waive the service, then you are
responsible for the costs that are incurred!
§
There are incentives to waive the formal process
of service and penalties not waive it
o
How to get a waiver:
§
Write ∆ a letter saying that he is going to get
sued by you. Tell him, “please let me know if you waive service of summons. If
you do not, then you will pay my lawyer’s fees for producing and the costs of
serving it on you.” ∆ has 30 days to waive.
ú
Incentives to waive:
·
∆ gets 60 days from the date the π sent out the
notice/request to waive, instead of 20 to reply.
Statute of Limitations is why it’s important when you start the lawsuit.
·
In Fed court: a lawsuit is deemed to being when
the summons/complaint is submitted to the court (FRCP 3)
o
You have 120 days to serve it to the ∆.
§
Problem w/ serving the day before: if there’s a
flaw in summons– you can’t go back and re-file. – you’d have to start a new
lawsuit IF you can.
Notes 9-25-07
Mullane:
Notice was
fulfilled by the newspaper.
Issue, was
notice sufficient to satisfy, not the
What is the
Due Process requirement? That it
would be reasonable.
If you have
their addresses, mail them notice, if you don’t have their notice, use a
newspaper. Mullane says yes, a
newspaper is sufficient to notify people whose address you do not have.
If it is
notice by publication and it is reasonable to do a bit more than that, do a bit
more than that.
Is service
by publication allowed in Federal Court?
Yes.
Was Mullane
an in personam action? They sort of
said you can call it in rem, or you could call it quasi in rem, we don’t want to
get into it.
Will mail
suffice for Due Process purposes?
Yes, that is what Mullane says. Who
should bear the loss.
What Mullane
basically says is that reasonable notice is required.
Rule 4(d)
doesn’t everything it can to avoid the technical—did you properly serve the
complaint technicalities.
If I sue you
and I win, who pays my expenses? I
do. That is the American rule,
there are some statutory situations that a statute will specify that if the
plaintiff sues and wins, they must pay the plaintiff’s legal expenses.
This is highly exceptional.
American
system encourages litigation with the benefits and costs that go along with
that. English system discourages
it.
There is a
scholarly literature of economists arguing that it doesn’t and it shouldn’t.
National
Equipment Rental, LTD. v. Szukhent
Can’t pay
for farm equipment.
How do you
serve a corporation? Serve it to an
officer.
Wuchter v.
Puzzutti – p190
First actual
pleading. What is a pleading, what
needs to be in the complaint, what is the next step after the complaint.
Notes 9-27-07
Final words on notice, summons:
How you
serve process in a foreign country.
Filing of
the complaint with the clerk marks the start of the lawsuit.
Rule 3, civil action commences with the filing with the court.
How long can you sleep on it before you serve?
120 days. When does the
statute of limitations stop running?
Statute of limitations stops when you file a complaint.
Statute of limitations are always enforced with absolute. Fertile source
of malpractice suits.
Distinction
between tricking somebody or kidnapping them into the jurisdiction, and tricking
them within the jurisdiction to accept service.
If you are already in the jurisdiction you have a civic duty to accept
service and it is fair game for you to be tricked into doing the duty.
If you are out of the jurisdiction
Pleadings
and
A little
history: Counterintuitive, but the
history of law
Pleading:
series of documents that starts and define the litigation.
Motion is a
formal request to a judge to do something or to order something.
The complaint is the kickoff pleading.
At common law there would be a series of pleadings until the issues were
defined. Some of the technical
rules for a complaint: Common law,
if there was an error of pleading, the suit could be dismissed with prejudice,
it was a fatal mistake.
Negative
pregnant. Defendant says he doesn’t
owe 10,000. You need to say I don’t
own 10,000 or any debt. This is
full of traps for the unwary and puts an enormous premium on having a good
lawyer.
What was the
response to this old common law system?
The federal rules.
FRCP—doesn’t
say anything about facts.
Dioguardi—
Defendant is
the customs authority who impounded the tonics.
Take a look
at rule 12(e).
Denny v.
Carey
Notes 10-02-07
PLEADING:
All the
forms are short. Tactical reasons
for pleading more elaborately.
Diaguardia
is an example of the liberal pleading approach.
It lets the defendant know generally about what the case might be about.
At common
law, demurrer. A technical legal
term, interestingly not used in the federal rules but still used in CA.
At common law, the demurrer, the effect was to accept the allegations as
true, and I say as a matter of law, those facts create no cause of action, and
therefore legally you (the judge) are required to dismiss the case on the
footing that even assuming everything the plaintiff alleges is true, then there
still is not case at law.
By demurring
you have admitted for the purpose of litigation that you have conceded the facts
in the complaint. You took a risk
by demurring, it was all or nothing.
12(b)6 you can move to dismiss on the ground that the complaint fails to
state a cause of action.
Rule 8(a)2
pleading must give a short statement showing that the pleader is entitled to
relief. Early supreme court said
this is not what we meant. Look at
Diaguardia and the form. Pleading
is pleading along the lines of the forms.
Fraud case,
all that is required is slightly more…
Denny and Barbour do not go along with this.
Has Congress
upped the ante in pleading? Yes, in
response to the McDonald’s case.
Swierkiewicz:
2nd
circuit required more. We want a
complaint that tells us in a lot more detail about how the discrimination took
place. The supreme court does what?
Says you only need to satisfy Rule 8(a)(2).
What does Thomas say if you want to change the rules, leave it to the
legislative branch. Bottomline:
You need to give notice unless it is fraud or mistake or unless Congress
enacts a higher requirement.
Bautista v.
LA County comes out the other way.
Can you
plead inconsistent theories? Yes
you can, but you couldn’t under common law.
Rule 8(e)2. Add on your
syllabus 8(e) should be 8(e)2.
What is the
colloquial alternative complaint:
What is the
other thing we haven’t talked about, but the rules requires in a Federal
Complaint? What else is going to be
required in 8(a)3? Complaint has to
give a short and plain statement of jurisdiction, of why you are entitled to a
claim, and a prayer for relief. It
is a specific request for the specific recovery for damages or remedy that you
are seeking.
Liberal
pleading system, of course you are going to get the 200.
Might there be a scenario if it is unfair if you get the 200?
If they are blindsided at trial.
Default judgment.
Notes 10-04-07
If the order
of magnitude is different, are you going to hire a council and prepare defense
with the same level of care with a $100 suit vs. a $1,000,000 suit?
We have
talked about the complaint, its function in the lawsuit, the idea of notice
pleading, the idea that even the federal rules requires more than notice
pleading, statutory requirements for more than notice pleading, courts
interpreting the rules or making common law that purports to impose notice of
pleading requirement.
After
complaint, the defendant can file a motion.
What is a motion? Where do
we go in the rules for the motions possible after a complaint?
Rule 12 and Rule 12(b).
First reference to motions is in Rule 7(b).
American
Nurses’ Association v.
If the
complaint says:
1. We are
the nurses.
2. You are
the employer
3. The
employer discriminated against us.
4.
Because of the discrimination we $1,000,000 in damages.
Why didn’t
they file a bare bones complaint?
What did they want to telegraph to their opponent right away?
Public record, media attention.
Judge lets
it go forward because 2 of them have a chance to make a legal claim, and it
won’t survive the discovery stage unless it has merit.
Posner came close to throwing the case out on the pleadings.
98% sure that you are alleging a comparable worth case, and that isn’t a
case.
What the
effect of the motion is?
Read 12(g)
and 12(h)
If you make
a motion, what have you got to include in that motion?
Finish 10
and move into 11.
Notes 10-09-07
Motions:
Rules 12(g) and 12(h) the
question is must a defendant make a motion?
If you don’t
make the motion, with the consequence of giving up, losing waiving whatever the
particular objection is.
Take a look
at 12(g) and 12(h).
Often for
strategic reasons the complaint will be more detailed than it needs to be.
But you don’t know what discovery will yield, the defendant can’t know
everything he needs to before trial.
But off of the complain you should know whether there is proper
jurisdiction, whether there is an appropriate long arm statute, etc.
Let us know or move on.
Another
element of it. We don’t necessarily
favor these defenses. If you make a
motion, you must raise these things in a motion, or you waive them.
Lack of
personal jurisdiction, bad service, bad summons, wrong venue.
What rule
says that you have to raise these defenses in your answer or you will lose them?
If you don’t
put personal service in the motion, can you put lack of summons in the
complaint? This is poor drafting.
Courts interpret as if you make a motion you forfeit whatever you don’t
raise in the motion.
Example of
an answer:
Courts
disfavor general denials.
If you know
you have certain defenses, you need to raise them when you know about them.
That is what is known as an affirmative defense.
Affirmative
defenses: 8(c):
What does it mean if it is an affirmative defense.
You might deny on the allegations why the lawsuit is bad.
Laches (lay cheese) equitable statute of limitations.
Ingram Case
on p. 546:
You shall
plead them. How do you know whether
something is an affirmative defense that you must plead?
Anything that is within the knowledge of the defendant that the plaintiff
should be notified of in the answer.
That is an affirmative defense.
The idea behind avoidance is tell us what the defense is if it is
something that would surprise the plaintiff later.
Should the plaintiff’s lawyer be surprised that there is a statutory cap
on damages if the defendant doesn’t point it out to you?
Court says
it would have been a surprise and you failed to plead it.
You really only raised it at the end of the case, since it would have
been a surprise we are going to say that you can’t raise it and the cap isn’t
going to apply in this case.
If you are
in doubt about something that is an affirmative defense, you should PLEAD it.
In a sense,
Aquaslide:
Notes 10-10-07
Aquaslide
case:
This is sad,
but the truth is, it isn’t their aquaslide.
On the other hand, the plaintiff relied on the answer.
Rule 15;
freely given when justice so requires.
This spirit
of rule 15a and b, that is we are back in soft
I sue you
for negligence, then the statute of limitations runs.
Somehow I come to believe that this was no accident, they were plotting
against you. I want to amend the
complaint to add that. Can you
amend the complaint? It is new, it
is post statute of limitations? Is
is permitted, see rule 15(c)(2). If
you hadn’t sued in the first place and the statute of limitations runs, I cannot
sue you for anything.
Why is there
a difference? Once the defendant
has been put on notice, now go out and collect evidence, but you are on notice
and liberal amendment comes into play.
What about
changing the names?
Rule 15
(c)-relating back problem.
Can he do it? No, it wasn’t a
mistake. The rule.
Knew or should have known that but for a mistake, the action would have
been brought against…officer Krupke.
Court says, was there a mistake?
No, there was no mistake. Is
this rightly decided?
Rule 11
Attorney
can’t just file something that is false or frivolous.
Before 1983 rule 11 said in quite general terms, “don’t file abusive or
improper pleadings of any kind.”
Concern that there is too much litigation.
If the facts
aren’t based on substantive investigation, and the legal actions aren’t at least
justifiable, that is a violation of section 11, and monetary sanctions shall be
applied. The courts were directed to
basically fine lawyers who violated that quite tough incarnation.
Does the present Rule 11, work that way?
Rule 11 requires that you sign every pleading, verify means to put it on
oath (this was how Rule 11 used to be).
Does rule 11 require the pleadings to be verified?
No, it does not.
Signature
certifies that it is not being presented for an improper purpose (harass, delay,
or run up the meter),
Hadges:
Were the
pleadings okay? They had some
mistakes. Did Kunstler got wrong
that he never worked for 5 years, and that one of the scratch sheets was from
the wrong year.
What is the
crucial question under rule 11?
Crucial question is, was there evidentiary support?
The evidentiary support is his client.
He told you he wasn’t. How
did you know the sheet was a 1989 receipt, is this evidentiary support?
Yes, it is enough if, if as a lawyer, he made a reasonable inquiry.
Is it enough of a reasonably inquiry for Kunstler to believe his client.
The court says, UNLESS Kunstler had reason to think his client was
unreliable. The key thing here, the
party him or her or itself, can be and often will be a witness.
A witness who testifies is evidence.
Rule 11—if I
sue you and file a complaint, and you think my complaint violates Rule 11, what
can you do about it? Make a motion.
The motion is a motion that describes the specific conduct.
You make a motion that asks for sanctions.
Enforcement is to make sanctions.
You give it to the other party and they have 21 days to correct.
Safe harbor provision.
Before you make sanctions, you are required to notify the other attorney that
you will submit this, unless they withdraw or the correct the problem.
Scalia
dissent says that it is an invitation to file bad pleadings because you have an
invitation to retreat (i.e. 21 day safe harbor provision).
If they don’t withdraw after 21 days, then what happens?
Can’t be sanctioned for things under subdivision b2, these are the legal
arguments.
Are monetary
sanctions compulsory without evidentiary support?
No, the court is given discretion and encouraged to do other things.
What about a pleading filed for delay or to run up the costs, monetary
sanction is not compulsory either, though it is available.
Is this too tough on lawyers file complaints and answers, not tough
enough, or about right?
Pick up with
the new syllabus and something completely different…subject matter jurisdiction.
Notes 10-16-07
http://www.sandiego.edu/~maimons
Rule 11:
Mr.
Brilliant, Surowitz Case-leave to us to read.
Classic Justice Black decision.
Golden Eagle
Case: p. 575.
Not bringing cases to the attention of the court, is this a violation of
rule 11, or not? The court says no.
Other circuits would come out differently on it.
On another day a different panel in the 9th circuit may come
out differently.
Which is the
better approach?
Interlocutory appeal, appeal that takes place immediately, before the completion
of the suit.
Rule
11(c)(1) safe harbor provision applies only for a request for sanctions and an
objection from your opponent.
Subject
Matter Jurisdiction of the Federal Courts
1.
Do not confuse subject matter jurisdiction with personal jurisdiction,
they are different and they raise different issues.
2.
The limited subject matter jurisdiction of the federal courts has to do
with federalism. We spend time on
this because the federal courts are important.
Most litigation takes place in the state courts.
The basic
principle is what? What is the
jurisdiction of the state courts?
Everything. It is plenary.
Unless a valid federal law prohibits the state courts from adjudicating a
particular thing. There are a few
federal laws that prohibit the state courts from adjudicating a few things.
In principle
the power of the state courts is plenary.
What is the
jurisdiction of the federal courts?
What is the constitutional jurisdiction of the federal courts?
Article III, §2.
Before we
get to Article III, what is the judicial power of the
Allegation
is that Federal courts are rich people’s courts.
Is the
jurisdiction of the Federal Courts identical to what the constitution permits it
to be? What does the constitution
say about a lawsuit between a Texan and a Martian if the suit is for 50k?
The statute limits it in several ways.
1st way, is that the lawsuit has to be for more than 75k.
28 USC §1332. EXCEEDS the
sum of 75k.
Next time,
are there other respects in which the Congress has not enacted, authorized by
statute, federal jurisdiction where the constitution would allow Congress to do
so.
Read 15 for
next time.
Notes 10-18-07
Cases and
controversies are those kinds of cases that are litigable in court.
Most of the cases are rare, they involve ambassadors, admiralty, but
there are two flavors of cases which are not so rare and which make up the
overwhelming bulk of federal litigation.
Those are: cases arising under the constitution…and diversity cases.
1.
In fact Congress has no extended the jurisdiction of the federal courts
to all cases involving citizens of different states.
Whether it must is actually an interesting question.
Section 2
says the judicial power shall extend to cases of citizens to different states.
Strawbridge
v. Curtis: John Marshall
opinion, Judiciary Act of 1789
For
centuries almost, Strawbridge said that the constitution requires complete
diversity, i.e. no plaintiff being a citizen of the same state as the defendant.
Do we actually go with that interpretation?
There have been in very recent decades acts of Congress creating
diversity jurisdiction for various flavors of cases.
Some
statutes give diversity without complete diversity.
Federal
courts are more protective of property rights than the state courts, more
favorable to successful institutions and in particular corporations, more
favorable to civil rights and to minorities.
What does
the constitution say? Citizens of
different states. Same thing with
28 USC 1331(or 1332).
Corporations
can be domiciled in two locations:
Their place of incorporation, or their principal place of business.
Domicile:
The place of the accident doesn’t matter.
Students are generally thought not to be domiciliaries.
Mas v.
Perry:
Is the
presumption is that there is diversity jurisdiction, or if there isn’t?
Let’s assume there isn’t.
What is the first thing in a diversity suit a plaintiff will have to establish?
That there is diversity. At
what point is a plaintiff expected to bring out that there is diversity?
The complaint. If you look
at the form complaints. All
complaint forms begin with an allocation of jurisdiction.
Despite loose goose pleading, this is something you have to plead.
2 French
guys sue in Federal Court claiming diversity:
Is this good? At least one
circuit has said yes.
Under the
terms of 1332, is there diversity if a plaintiff from CA and a plaintiff from
Moving on to
Federal question jurisdiction, then move into supplemental jurisdiction.
Supplemental claims, 14 and 15 Tuesday.
Notes 11-06-07
It gets a
little bit more complicated with supplemental parties and claims.
The problem we suggested is in a sense the tug of war between the two
conflicting principles.
Federal
courts are courts of limited jurisdiction and they mustn’t overstep that.
Kroeger case on p. 297.
Kroger case:
says no on that.
Finley is
different, how is it different?
What is the jurisdictional basis for plaintiff’s action against the defendant.
Plaintiff wants to add a claim against D2, and it can’t be diversity, but
plaintiff says, it is the same case or controversy, it is the same dispute, and
therefore I should be allowed to add this party and this claim.
28 USC 1367,
does this change Kroeger? Section
(a) says that when the district court…—if this action is a diversity action,
there will be no supplemental jurisdiction over claims by plaintiffs over
additional parties joined by the case.
Is the rule consistent with Kroger, yes it is.
(b)-precludes in diversity action.
Article
III-jurisdiction over cases and controversies.
Jurisdictional shorthand—federal question jurisdiction, and diversity.
It arises
out of the same case or controversy, what is it that brings it in under Article
III?
We have
suggested that in order to sue in federal court you need personal jurisdiction,
subject matter jurisdiction (federal question jurisdiction and diversity
jurisdiction),
Removal:
Defendant cannot remove to state court, it is a on way opportunity.
Rationale
for diversity is to prevent state court prejudice against the defendant.
1441
precludes removal by an in state defendant in a diversity action, but if
plaintiff sues on a federal claim, anybody, including the home state defendant
can remove if the defendant wants to.
The nature
of your claim and who you sue as a plaintiff can make you stay in state court.
Suppose you
sue in federal court and there is jurisdiction, is there anything the plaintiff
can do about that? No, you cannot
remove to state court. There is no
removal down to state court.
Plaintiff is
from CA, he sues a defendant from
Rose v.
Giamatti
Plaitniff
rose is from
1441(c)--
Notes 11-08-07
Removal:
If A sues B
and C in state court, B and C must both petition to move to state court, or
neither can oppose the removal.
Challenging
subject matter jurisdiction:
Most it done
in motion or in answer? See page
324. Why is there a difference
between this and personal jurisdiction?
Subject
matter can be raised at any time, and can be raised by the court.
Why such a
difference between the treatment of personal jurisdiction and subject matter
jurisdiction?
Do we favor
the defense of no personal jurisdiction?
No, why not?
If you are a
federal court, is subject matter jurisdiction a matter that you take lightly?
No, it is a constitutional issue, and it deals with the allocation
between the state and the federal government.
Venue:
-The proper
place for the trial of the suit.
-Venue is
purely statutory matter (unlike subject matter jurisdiction and personal
jurisdiction).
Satute on
venue: USC §1391
Section
(a)-diversity
Section
(b)-where there is diversity
iF you can’t
satisfy (a)1 or (a)2,
Scenario
where you couldn’t sue in federal court?
Substantial part was outside of the
Is there a
scenario where you wouldn’t be able to sue in federal court where the events
arose? Cyber, something that is
online.
No venue at
all means that you can’t sue. Bad
solution for plaintiffs, good solution for the plaintiff.
If everybody
is out of the country, there could be an instance where there is no venue and
there is no case.
Bates
case:
Bates
originally from
Eerie (a
little tricky).
Notes 11-13-07
What is
domicile relevant to? Personal Jurisdiction.
It can also be relative to subject matter jurisdiction (diversity).
Personal
jurisdiction lined out state by state in the long arm statute.
Many states have long arm statutes that don’t got as far as the
constitution allows (NY, IL).
Ferens Case:
Happens in
1391(c)—Where corporation resides for venue purposes.
Under U.S.C
1404-Plaintiff can apply for it as well.
Classic forum shopping.
Plaintiff trying to get the best of both worlds, statute in
1404
“transfer any civil action to any other district or division where it might have
been brought.” So could this case
have been brought in
Statute
doesn’t require a convenient forum, common law does.
In addition to the statutory requirement of venue there is the common law
doctrine of dismissing a case if it is forum non conveniens.
Piper
Aircraft Co. v. Reyno
Venue 1391:
venue in pretty much every state in the country.
Δ says please don’t hear this case, and the court of appeals reversed the
district court (district court grants motion to dismiss).
Swift v.
Tyson
(p. 362)
I’ll sell
you the
What court
are they in? The sue in Federal
Court of New York. Shouldn’t
Federal Law apply?
What law
will apply if there is a question of Federal Law?
Federal law.
If it is
going to be a question of state law, how do you know which state law?
1. Who is
the Federal law going to favor if there is a difference?
2. How did
Swift play out and why.
3.
Guaranty
Trust v.
Notes 11-15-07
Exam:
Bar exam like multiple choice section: 2/3, short essay worth 1/3, 2.5
hours total. Open rules, open note
materials you have prepared yourself.
Swift:
If you could
find a
The correct
answer is the judiciary act of 1789—said that in diversity cases state law
should apply, and everybody agreed that that means state statutory law.
It would be unconstitutional to apply federal law in state court because
of the federalism we talked about last time and article I, §8 doesn’t cover
intra state transactions.
Diversity,
if there are state statutes it will be state law, if there aren’t state statutes
it will be common law.
Problem: it
invites people who don’t like state law to go to federal court, and those who
don’t like federal court to go to state court.
This invites
forum shopping between the state and federal courts.
Swift
1842-1934
Erie R.R. v.
Tompkins
Wanted to
sue Erie R.R. for negligence. State
law
Good reason
for suing in
Trial court
applies federal common law under swift and decides for Tompkins, and then the
case goes to the supreme court.
Why should a
100 year old decision have particular weight?
Should it have any particular weight that it is old rather than new?
People rely on the precedent.
People need to know what the law is, “here are the rules, abide by them.”
Mostly, who
will Swift favor? Plaintiffs like
Harry Tompkins? No, by in large,
even if NY, and PA, were freak common law, by in large, if you are a railway you
like Federal common law and you are afraid of state law.
It would be a stretch of an argument.
Plaintiff is relying on Swift.
Nobody mentions swift.
Is it right
to overturn Swift in a case where neither party even mentions it?
Passage on
p. 362. That means that state
common law as well as state statutory law.
Saying it is unconstitutional, bottom of 366, holding is that this is a
constitutional decision. Federal
common law isn’t just an understanding of the judiciary act, but a violation of
the constitution, this is beyond the enumerated powers of lawmaking granted in
the constitution.
Why does the
Supreme Court do this?
What did
Any
advantages to having state common law and federal common law?
Might you want to have some competition?
What
happened in the taxicab case?
Who will
determine which court we are in?
Brandeis
says that this gives plaintiffs total control.
Notes 11-20-09
Successor
cases to
Part of this
was about federalism, part of it was a pretty consciously ideological tug of war
about the nature of who federal judges would side for.
Either way
you are getting forum shopping, and there are things to be said about getting
one kind over the other kind.
Taxi case
shows the manipulative side of the forum shopping issue.
368 they do
not take it for granted that the plaintiff loses under state law.
Defendant claims that there is no recovery for mere negligence and the
court below never really got to the question.
Successor
cases to
Guaranty
Trust v.
Anything in
Substantive
v. Procedural, why not just say act as if the state court would in all respects?
Does the
government have the constitutional power to create a law that will be applicable
in diversity cases? State court
judges are elected, federal court judges are appointed.
Statute of
limitations…follow the states law.
Diversity
case: apply substance, if it substantially effects the outcome, then it is
substance.
What is
procedure and what is substance? Is
the statute of limitations procedural or substantive?
Procedure is
about court management.
Substantive
or procedural, which one do you go with in a diversity case?
Pleading
rules?
Does the
statute of limitations seems the same or different from pleadings lines?
Byrd Case:
Supreme
Cout: Discuss the
7th
Amendment says that
Do we have a
viable principle for what is procedural and what is substantive?
This is a
good illustration with a procedural problem that the courts had a really hard
time with.
Looks as
though Hana v Plumer would solve problem, is the Hana solution still reliable
after Walkter v. Arm Coat Steel?
Notes 11-27-06
Guaranty
Trust Co. v.
Other things
that may affect the decision: the judge, the jury.
Judge may be more detached, more sophisticated than the typical state
judge.
Byrd: A jury
is different from a case to the judge, but it is pretty essential to the
function of a federal court, you get a jury trial in federal court even though
you don’t in state court even though it may substantially affect the outcome.
Hana v.
Plumer
Car crash in
Ultimately
the defendant basically says: motion for summary judgment because I was never
lawfully served. Clearly they were
lawfully served if conforming to Federal Rule 4 was okay.
If you are defendant council you say that we should follow state law
because it might substantially affect the outcome.
Supreme Court says that the Federal Rule should apply.
Rules enabling act just says that a slightly complicated process of an
advisory committee all clear and ultimately enact
Clear guide
for as to what is procedural, namely if it is in the FRCP then it is procedural
and if it is procedural then you conform to the federal approach.
Substantive law must be state law, but that is not true with procedure.
Harlan
Concurring:
In Hanna the
state required personal service the federal rule allowed leaving it at home.
You might thing in Armco the state law commenced so that you might think
this is a federal rule. Does the
Supreme Court cite any precedent for the idea that it is different? They do, the
Reagan case, what is the interesting thing about the Reagan case?
It was a statute tolling case but the court went with the state practice,
it was decided before Hanna v. Pummer.
What is
going on here? If you are the very liberal
p.213—Statute of limitations. Federal rule tolls with commencement of filing.
Under rule 4(m) or (n)? service must be made within 120 days unless the Π
shows good cause for not completing service in that time.
If it is
substantive then in a diversity case you must go with state law.
Klaxon Co.
v. Stentor Electric MFG. Co.
Apply the
conflict law of the state in which the suit is sitting.
Is there
anything similar to this that we have already seen in terms of the federal court
following the practice of the state in which they sit?
Long arm statutes, but more broadly, personal jurisdiction.
A federal
court will apply the law of the state in which the federal court sits for
personal jurisdiction, unless federal statute provides for a different metric of
personal jurisdiction.
For
Federal
court, Federal judge dealing with a diversity suit, I know the substantive law I
must apply is state law, how do I figure out what that state law is?
How do I find out what the substantive state law in my state is?
Mason:
Bench grinder wheel disintegrates and causes an injury.
Could the defendant have been sued in
Next time,
are there ways and means for a Federal Court to figure out what the state courts
would interpret the state law as being.
Is there
such a thing as Federal common law?
Boyle v. United Technology.
First half
finish up through Boyle, at 8:10 we will break it off and answer review
questions.
Is there any
other way you can try to get at this?
Notes 11-29-07
In a way
Armco is a very exceptional Supreme Court case.
Hana
has a broad rule: a federal rule of civil procedure is procedural.
Talked about
Mason and a situation where the federal court in
1928 Case
saying we’re not going to go with this new fangled thing and stick with the
common law of privity and Ford wins.
Boyle v.
United Technologies Corp.
Was this a
federal question lawsuit? No, it
was a diversity suit. Was there a
federal statute, would it be constitutional to have a federal statute saying
federal contractors couldn’t be sued?
Probably.
Is this
common law? Yes. Does the federal
government have the power?
Dice v.
Rules
supplement and notes of your own making that you have in good faith generated.