Civil Procedure I - Abramowicz - 2 - 3
Civil Procedure I - Abramowicz - 2 - 3
Civil Procedure I - Abramowicz - 2 - 3
1. The Origins
a. Personal Jurisdiction court is authorized to exercise power over the
defendant. Need Constitutional and Statutory requirement for jurisdiction.
b. In Rem Jurisdiction Jurisdiction over property. Settles everyones
interest in the property.
c. Quasi In Rem Jurisdiction Jurisdiction over a person by attaching their
property that resides in the state. Judgment can only be found for the
value of the property.
i. Type 1 the dispute is about the property. Settles the specific
interest between the parties over the property.
ii. Type 2 dispute is about something else and the property is only
used to gain jurisdiction over the person.
d. Plaintiffs can sue anywhere, so you do not consider personal jurisdiction
for plaintiffs.
e. Capron v. Van Noorden
i. Facts: Caprons place of residence or citizenship was never stated.
Jurisdiction was not established (needed alienage, diversity, or both
parties were within jurisdiction)
ii. Holding: Plaintiff has a right to take advantage of an error of the
court in subject matter jurisdiction, even if that error was to their
advantage because subject matter jurisdiction is an important basis
of the court system and the court's responsibility to establish.
f. Pennoyer v. Neff
i. Holding: To have in personam jurisdiction by either serving the
defendant within state boundaries OR by having the defendant's
consent of jurisdiction by his appearance in court
1. "due process of law (14th amendment) would require
appearance or personal service before the defendant could
be personally bound by any money judgment rendered"
2. To establish in rem jurisdiction, "constructive" notice ok if
the property in the state has already been attached before
the lawsuit
ii. Power
1. Personal service in the state is required for personal
jurisdiction. Personal service outside of the state does not
confer jurisdiction.
2. Due process allows that courts only have power over
individuals that are present in the state. Resident of the
state or found in the state. Consent by making an
appearance can find jurisdiction.
3. Sovereignty discussed to support presence requirement.
Court has power over people/things in state and does not
have power over people/things out of state.
3. Jurisdiction by Necessity
a. Jurisdiction when there is no where else to sue.
b. Not considered by the court. Court has not
determined whether or not this would be
Constitutional.
iv. Washington Equipment Manufacturing v. Concrete Placing
1. Contacts
a. The company built a road in the state several years
ago. In doing this, they were required to get
permission with the state and register an agent for
service of process.
b. D bought a concrete placing machine and concrete
paving plant from P.
2. Washington argued that Concrete Placing consented to
jurisdiction by obtaining permission to business in the state.
3. The statute did not explicitly state this, so there was no
consent and the contacts were not continuous and
systematic and not enough.
v. Burnham v. Superior Court
1. Tag Jurisdiction If you serve a person in a particular
forum then the court has jurisdiction in that forum. This is
enough for jurisdiction in Burnham.
2. Reasoning (Scalia + 3)
a. Presence has traditionally been enough, so it should
be enough. International Shoe test is only necessary
for defendants who cannot be served in the state.
b. Presence is not required for jurisdiction, but it is
enough.
3. Reasoning (Brennan + 3)
a. Tradition means how we have decided things in the
past based on fairness.
b. In this case jurisdiction was fair because there were
enough minimum contacts. The service of process
was just a contact to be analyzed.
c. Tag jurisdiction was sufficient in this case, but
could be unfair in another case. This creates some
uncertainty as to tag jurisdiction.
4. Fraudulent Enticement - Wynam
a. You can not lie to someone and use fraud to get
them to come to the state, so you can serve them.
3. Consent as a Substitute for Power
a. By Appearance
i. You can consent to jurisdiction by filing a general appearance.
ii. If want to challenge personal jurisdiction you file a special
appearance in state court. This does not consent to jurisdiction and
prevents you from being served. In federal court you would file a
rule 12(b)(2) motion.
iii. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee
1. D filed a 12(b)(2) motion to dismiss for lack of personal
jurisdiction. Then D refused to comply with discovery
orders that were needed to gain evidence to determine
jurisdiction. Court dismissed motion as a result.
2. D claimed that they did not have to comply with the courts
order because the court did not have personal jurisdiction.
3. Court held that by filing the 12(b)(2) motion, D consented
to jurisdiction for the purpose of determining jurisdiction.
4. The outcome had to turn out this way or you could never
investigate to determine if there is jurisdiction.
5. Seems to be better for people who do not respond at all,
since they can use a collateral attack to question
jurisdiction after the default judgment has been entered, but
they do not get to try the actual suit.
b. By Contract
i. Carnival Cruise Lines v. Shute
1. Can consent be given in advance? Yes if the forum chosen
is fundamentally fair.
2. Forum-selection clauses are valid if the forum would have
jurisdiction if suit was brought there and it is fair meaning
done in good faith and not discouraging litigation.
4. The Constitutional Requirement of Notice
a. Pennoyer v. Neff under International Shoe
i. Jurisdiction might be found constitutional based on minimum
contacts test, but could disallow jurisdiction for insufficient notice.
ii. Should examine power and notice separately.
b. Wuchter v. Pizzutti
i. Consented to jurisdiction by driving in the state.
ii. Statute authorizes the attorney general to be an agent for service of
process, but does not require the attorney general to give the
defendant notice. This makes the statute unconstitutional because
the defendant might not get the notice. Must have notice that is
expected to work, actual notice may not be enough.
c. Mullane v. Central Hanover Bank & Trust
i. Notice under Due Process Clause requires that:
1. Notice reasonably calculated
2. Under all circumstances
3. To give notice to people
ii. Not required
1. Finding people who are missing or unknown.
2. Attach real property and constructive service is enough.
3. Give notice to people who may have future interests
iii. Required
d.
e.
f.
g.
h.
i.
j.
Citizenship:
i. Citizenship is in what state the person is domiciled.
1. Domicile:
a. Where one lives, and
b. Where they intend to remain indefinitely
ii. Citizenship is determined at the time the cause of action is filed
and not the time of the incident or after the complaint has been
filed.
iii. If a US citizen is domiciled in a foreign country, then there is never
diversity because the person is not a citizen of any state. A foreign
citizen always is subject to diversity.
1. A US citizen domiciled abroad does not get alienage
diversity
iv. A wife does not necessarily have the same domicile as her
husband, although this was the case at one time.
Burden:
i. The burden is on the party asserting diversity jurisdiction.
Alienage Jurisdiction
i. A person from a foreign country is subject to or can invoke
diversity jurisdiction against a citizen of the US.
ii. However, a foreigner cannot sue another foreigner in diversity in
the United States.
Note 5(d)
i. CA & Mexico Sues NY & Japan
1. Fine under diversity.
ii. CA & Mexico Sues NY
1. Fine.
iii. CA Sues NY & Japan
1. Fine.
iv. CA & Mexico Sues Japan
1. Invalid under diversity because 1332(a) does not allow a
foreigner to sue a foreigner under diversity.
2. 1332(a)(3) allows joining foreign parties if diversity
already exists with US parties.
Corporations
i. Two citizenships
1. Where they are incorporated
2. Where there principal place of business is
a. Nerve test where the main executive and
administrative functions. Corporate hierarchy.
b. Muscle test where most of the actual business
takes place. Lower end.
Unincorporated Associations
i. Citizenship of all of its members
1. example: MLB is a citizen of 17 states.
Collusive Joinder
iv. Aggregation Each person must be over the legal limit or the
people must be considered as a single injury.
1. Damage to house and man and wife suing, you can
aggregate.
2. Get in auto accident and man has injury and woman has
injury. Cannot aggregate because two separate injuries. In
this case each injury must be over $75,000. Must have an
inseparable right to the injury.
3. You can aggregate damages for multiple claims for yourself
against the person (60000 claim + 20000 claim is ok), just
not claims from different parties.
4. The $75,000 damages must be that high for each defendant.
4. Supplemental Jurisdiction
a. Once you have a federal question claim, you can add a state law claim.
b. Terminology
i. Pendant
1. Same plaintiff brings federal and state claim against the
same defendant
ii. Ancillary
1. The plaintiff sues the defendant and then the defendant sues
someone else.
2. P sues D, D sue X
3. P sues D, D sues P (counter-claim)
4. P sues D1 and D2, D1 sues D2 (cross-claim)
5. Pendant party - P sues D1 in federal court and D1 brings
D2 into the suit or P brings D2 into the suit. (Third Party)
c. Aldinger
i. Plaintiff sues one defendant on a federal claim and another on a
state claim, but theres a common nucleus of operative fact
ii. Court says theres no jurisdiction over the state claim defendant
1. Both claims could be brought in state court
d. United Mine Workers v. Gibbs
i. Two claims were brought:
1. One federal law claim under 303 of Federal Labor
Relations Management Act.
2. One state law conspiracy claim.
ii. The court found that there was supplemental jurisdiction over the
state law claim. The plaintiff won on the state claim and lost on
the federal claim and this result is ok.
iii. Tests Applied
1. Constitutional Test:
a. Supplemental jurisdiction has Constitutional
authority if the federal claim and state claim derive
from a common nucleus of operative facts.
b. The Constitutional test is broad.
2. Common Law Test
filed in state court where the defendant lives, so removal would not be
proper under 1441(b).
l. 1447 (d) a motion to remand is not appealable.
m. Caterpillar Inc. v. Lewis
i. Facts:
1. Lewis = Ky sues Caterpillar = Del. & Ill. and Whayne =
Ky.
2. Liberty Mutual (Ma.) subrogates claim and comes in as a
plaintiff.
3. Whayne and Lewis settle, so there is complete diversity
between Lewis and Caterpillar. Caterpillar removes case to
federal court. However, it should not have been removed
because Liberty Mutual still has a claim against Whayne
and Whayne being in the suit defeats diversity jurisdiction.
4. Liberty Mutual and Whayne settle before the case goes to
trial. This completes diversity. Judgment is found for
defendant and Ps appeal because of the improper removal.
ii. Holding: The Supreme Court holds that the judge should have
remanded at the time, but because jurisdiction became proper by
the trial and judgment of the case, then jurisdiction is proper.
iii. Rationale:
1. It would not be cost effective to retry the entire case.
Jurisdiction was proper at the end and the decision of the
case is valid. Alls well that ends well.
2. Caterpillar could not have removed after the settlement
between Liberty Mutual and Whayne because the one year
requirement of 1446 (b) would have expired.
n. Caterpillar, Inc. v. Williams
i. Collective bargaining agreements are governed by federal law
ii. Plaintiff is the master of his or her claim. Exception is the
"doctrine of complete pre-emption" - if federal law completely
preempts state law, it would be a federal law because the courts
would re-interpret the "well-pleaded complaint".
iii. Holding: Defendant can't remove on basis of a federal law defense.
Plaintiffs claims do not arise under federal law and therefore may
not be removed to federal court.
Pleading
We need pleading to give notice to people about the claim (stating the relevant facts),
weed out frivolous claims, narrow down or identify issues, separating legal and factual
disputes.
6. Common law pleading was different for the two court systems.
a. Courts of law
i. Required the plaintiff to choose a writ or form of action to sue
under. The plaintiff had to choose the specific offense and the
procedure associated with that offense.
b. Courts of Equity
i. The equity courts had lessened pleading rules. There was a large
amount of pleading needed to narrow the case.
7. Reform
a. Initially. The states essentially adopted the British system, but all common
law courts were merged into one. Some states had no equity courts, while
others had a separate Chancery court.
b. Field Code of 1848
i. Abolished the forms of action and created just one cause of action.
c. Rules Enabling Act of 1938. Gave Supreme Court power to transmit
Federal Rules of Civil Procedure, leading to merger of law and equity and
adoption of a regime of notice pleading.
d. Federal Rules of Civil Procedure
i. Abolished the forms of actions and creates one kind of cause of
action.
ii. A more streamlined approach. More flexible and allowed a broad
pleading while the Field Code still required more narrowing down.
Discovery was needed before the case was narrowed down.
8. Burdens of Proof: Types
a. Burden of pleading
i. Party with burden must plead the issue.
ii. Plaintiffs failure to do so renders complaint subject to dismissal if
not amended.
iii. Defendants failure to do so concedes relevant point if not
amended.
b. Burden of production
i. Party with burden must produce enough evidence on issue to
entitle jury to rule for it.
c. Burden of persuasion
i. Party with burden must actually persuade decision maker that legal
standard is met.
ii. Typically preponderance of evidence is standard in civil
litigation, so burden acts as a tie-breaker.
9. Modern Pleading
a. Rule 8
i. (a) has 3 requirements
1. Short & plain statement of jurisdiction
2. Short & plain statement of claim
3. Demand for relief.
ii. (b) introduces defenses
iii. (c) discusses affirmative defenses
iv. (e)
they could not sue the municipality for the direct cause of
action (officers went into house and killed dogs)
ii. Procedure:
1. The 5th Circuit dismissed the complaint because it did not
meet a heightened pleading standard. The court required
more facts to support the allegation and mention of what
was inadequate about the training.
a. IOW, Found that heightened pleading was required
to overcome immunity, because such a pleading
standard would meet substantive laws goal of
saving municipalities from expensive litigation.
iii. Holding:
1. Supreme Court holds that the heightened pleading standard
is not necessary for this cause of action. Rule 9(b) requires
heightened pleading for averments of mistake and fraud.
This cause of action is not listed, so it is assumed it was
purposely left out.
a. Courts cannot require heightened pleading. The
degree of specificity does not ordinarily vary by
statute
2. Therefore, heightened pleading is not required in this case
and only a simple and plain statement required by Rule 8 is
needed.
12. Burden of Pleading;
a. Gomez v. Toledo
i. Facts:
1. Cause of action is under 42 U.S.C. 1983.
2. Gomez is suing because he was fired without being given a
hearing. He claims this was in violation of the due process
clause.
ii. Issue:
1. The element at issue is whether or not the official acted in
good faith.
2. IOW, must plaintiff plead bad faith, or must the defendant
plead good faith?
iii. Holding:
1. Court holds that the plaintiff does not have to allege that
the defendant acted in bad faith. Burden of pleading is on
the defendant
a. Reasons
i. Element is not listed in the statute
ii. Court has historically described it as a
defense.
iii. Relevant evidence is in control of defendant.
2. The statute does not specifically have a requirement of
good faith. The common law introduced the bad faith
The new claim gets the same filing date as the original
complaint before the statute of limitations has run.
2. Rule 15 (c)(1) relation back is allowed if state law allows
it.
3. Rule 15 (c)(2) allows relation back if the claim arises out
of the same transaction or occurrence.
4. Rule 15 (c)(3) relation back is allowed if the wrong
defendant is named if Rule 15 (c)(2) is satisfied, the actual
defendant has enough notice to avoid prejudice, and the
actual defendant knew or should have known the suit was
meant to be against him or her.
iv. Moore v. Baker
1. Facts:
a. Initial theory of the complaint is that the informed
consent law was violated.
b. The plaintiff adds a malpractice claim after the
statute of limitations had run.
2. Analysis:
a. In Azarbal, the opposite happened. The informed
consent was brought after the malpractice claim and
was allowed.
i. In this case, the court does not allow the
amendment because the doctor was not
given notice of the malpractice claim.
b. In Azarbal, the first claim was a general claim and
the second was a more technical claim, so notice
was given.
i. In this case, the first claim was the technical
claim, so the defendant was not given notice
of the general claim.
c. The court does not just look at whether the claims
arise out of the same occurrence or transaction; it
adds notice on top of transaction.
i. It is not clear whether transaction arises out
of the exact same events or the entire
relationship between the parties.
d. Holding:
i. Court concludes that they cant amend
because the consent occurred before the
surgery and the malpractice occurred during
or after the surgery, therefore the consent
claim did not provide notice that there may
be a malpractice claim
v. Bonerb v. Richard J. Caron Foundation
1. Facts:
b.
c.
d.
e.
f.
iii. DAgostino
1. Facts:
a. DAgostino brings a federal claim against
Heyward.
b. Heyward brings a counterclaim against
DAgostino for the federal claim and a different
state claim.
c. DAgostino brings a reply counterclaim for the
state claim against Heyward.
2. Procedure:
a. A verdict is found for DAgostino on both
claims.
b. Heyward appeals stating that there was no
jurisdiction for the state counterclaim even
though it asserted there was jurisdiction in the
first case. Heyward argues that the state
counterclaim is permissive and not compulsory.
3. Holding:
a. The court holds that the claim was compulsory
and there was supplemental jurisdiction.
4. Rationale:
a. The claims arose out of the same transaction
because there were many connections such as
one insurance policy for both.
5. Extras:
a. The concurring opinion criticizes that this was
not out of the same transaction and by saying
this is a compulsory counterclaim then people
would have to bring the claim at the time of the
case. This will cause people to bring many
claims at one time because they might be
compulsory if compulsory counterclaims can be
this remote.
iv. 1367 review (Supplemental Jurisdiction)
1. Part A goes to the full extent of the constitution.
The supplemental case or controversy has to have a
common nucleus of operative facts. It has been
argued that this test is broader than the claim arising
out of the same transaction/occurrence.
2. Old Regime (pre 1367) Compulsory
counterclaims have jurisdiction and Permissive claims
do not.
3. New Regime ( 1367) Compulsory counterclaims
have jurisdiction and Permissive counterclaims may
have jurisdiction since the common nucleus of
Standard
Supplemental Jurisdiction
Same transaction or
occurrence as opposing
parties claim
Anything
Cross-Claim 13(g)
Impleader 14 (D v. 3rd
party)
- 3rd party v. P
- P v. 3rd party
Additional claim once we
have jurisdiction over one
18
Additional parties on one
side 20
Same transaction or
occurrence of an original
claim (P v. D or D v. P)
Derivative
liability/Indemnification
Same transaction or
occurrence as P v. D
Same transaction or
occurrence as P v. D
Any claim can be brought
Necessary 19
Same transaction or
occurrence + common
question of law or fact
Interest related to the action
Intervenor Right 24
Intervenor Permissive 24
operative facts
Always has supplemental
jurisdiction
Always has supplemental
jurisdiction
Always has supplemental
jurisdiction
No supplemental
jurisdiction. 1367(b)
Common nucleus of
operative facts
No, if D 1367(b)
Common nucleus of
operative facts, No not if P
v. D 1367
Common nucleus of
operative facts, No not if P
v. D 1367
Common nucleus of
operative facts, No not if P
v. D 1367
Rule
Category
Test
(Assuming no
Ind. Juris.,
Main claim is
Diversity)
Supp. Juris?
Common
nucleus
Transaction/occurren Yes
ce (of P v. D or D
v. P)
Rule 14
Impleader
Derivative liability
Rule 14
3d party D v. P
Transaction/occurren Yes
ce (of P v. D)
*Rule 14
P v. 3d Party D
Transaction/occurren No
ce (of P v. D)
Rule 18
*Rule 20
Addl D
Transaction/occurren No
ce + common
question of law
and fact
Rule 20
Addl P
Transaction/occurren No
ce + common
question of law
and fact
*Rule 19
*Rule 24
Intervenor
*Rule 24
Continued
Intervenor
Yes
Common
Nucleus
(unless
problem
is only
amount
in
controver
sy)
Interest related to
property or
transaction
No, if D
Question of law or
fact
Common
nucleus/
No, if D