Civ Pro I Outline
22 Pages

Civ Pro I Outline

Course Number: CIV PRO I Civ Pro I, Winter 2006

College/University: Cooley Law

Word Count: 6181

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Civ Pro I Outline I. Introduction a. Court Systems b. Litigation Overview Personal Jurisdiction a. Hot to determine personal jurisdiction: i. Statutory analysis (long arm statutes) ii. Constitutional analysis 1. Minimum Contacts a. Purposeful availment b. Relatedness (general vs. specific) c. foreseeability 2. Reasonableness factors a. D's last chance b. P's interest c. Burden on D d. Space e. Interstate commerce...

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Pro Civ I Outline I. Introduction a. Court Systems b. Litigation Overview Personal Jurisdiction a. Hot to determine personal jurisdiction: i. Statutory analysis (long arm statutes) ii. Constitutional analysis 1. Minimum Contacts a. Purposeful availment b. Relatedness (general vs. specific) c. foreseeability 2. Reasonableness factors a. D's last chance b. P's interest c. Burden on D d. Space e. Interstate commerce f. Policy b. What state to sue in c. Doesn't apply to P, just D d. Definition- The power of a given court to issue a judgment that is binding on a person or effects his property (what state) e. The Historical Predicate- Pennoyer v. Neff i. Key Question- Is it there? ii. Concerned w/ state lines iii. To get personal jurisdiction- could have attached the property iv. Jurisdiction 1. In personam- jurisdiction over the person 2. In rem- jurisdiction over the property 3. Quasi in rem- nothing to do w/ the lawsuit, judgment limited to value of property v. Even if someone has actual notice of lawsuit doesn't mean there is personal jurisdiction vi. If served in the state, that's personal jurisdiction- even in the airspace (transient or "tag" jurisdiction) vii. Under Pennoyer, a court has PJ over a party when: 1. Waiver- Party appears in court (don't have today) or 2. Party consents to jurisdiction or 3. Party is served w/ process in the state (transient jurisdiction) or 4. Party has property in the state (but only to extent that property is attached pre-suit and up to value of property) (quasi in rem) or II. 1 5. Domicile- not necessarily where you live, the place you were born (or vote, have driver's license, bank account, dorm or house?) viii. Problems w/ Pennoyer 1. Too Strict ix. Hess v. Palowski 1. Implied consent- being In the state gives consent f. The Modern Construct i. Minimum Contacts 1. International Shoe Co. v. Washington a. To subject a nonresident D to in personam jurisdiction, there must be "certain minimum contacts w/ the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice" b. Now the question is- Is it Fair? c. Look at quality and nature of contacts d. Look at inconvenience caused by having to travel away from home e. Divested the "implied consent" and "corporate presence" concepts of their special significance, focusing instead on the activities carried on in the forum of the state. f. Holding based on "quid pro quo" logic i. A corporation conducting activities in a state enjoys the benefits and protection of the laws of that state- so it is fair to impose on the corporation obligations that arise out of or are connected w/ the activities in the sate g. Modified Pennoyer's requirement of instate service of process for in personam jurisdiction, finding service of process in International Shoe outside of forum state to be valid- most corporations have a registered agent h. Key concept: The more closely related the D's contacts to the claim, the fewer contacts are required to comport with substantial justice and fair play i. Shaffer v. Heitner i. Expressly overruled Pennoyer's jurisdictional test for "in rem" actions: All assertions of stat court jurisdiction must be evaluated according to the "minimum contacts standard 2 ii. International Shoe "minimum contacts" test applies to individuals as well as corporations iii. If the dispute has to do w/ property, then the property would satisfy minimum contacts 2. The forum's authority to exercise jurisdiction over nonresident Ds in lawsuits arising from their forumdirected activities 3. Long arm statutes a. State courts could not take advantage of USSC's expansion of jurisdiction until state enacted statutes authorizing them to do so b. After International Shoe, state enacted "long arm statutes", statutes that provide personal jurisdiction over nonresident D who could not be found and served w/in the state 4. Look for the contacts of the D, not some 3 rd party and not where a product ends up ii. Purposeful Availment 1. The unilateral activity of those who claim some relationship w/ the nonresident D cannot satisfy the requirement of contact w/ the forum state a. In each case, there must be some act by the D whereby it purposely avails itself of the privilege of conducting activities in the forum state. b. No matter how convenient it may be to exercise jurisdiction over a D in a particular state, 14th Amendment Due Process Clause is violated if threshold requirement of purposeful availment is not met 2. World-Wide Volkswagen Corp v. Woodson a. Stream of commerce theory i. The contact is indirect ii. Predictability Rationale-Foreseeability that product might "end up" in state not enough. Jurisdiction is appropriate only where D' conduct and connection w/ the forum are such that he should reasonably anticipate being hailed into court there. Must have "purposeful availment" iii. Jurisdiction is appropriate over corporation that "delivers its products into the stream of commerce w/ the 3 expectation that they will be purchased by consumers in the forum state iv. "Reasonableness Factors: 1. Burden on D 2. State's interest in adjudicating the dispute 3. P's interest in obtaining convenient and effective relief 4. Interstate judicial system's interest in obtaining most efficient resolution of the controversy 5. The shared interest of the several states in furthering fundamental substantive social policies 6. Even if "reasonableness factors" support jurisdiction, no jurisdiction w/o minimum contacts 3. Burger King Corp v. Rudzewicz a. The Due process clause requires that individuals have "fair warning" that a particular activity may subject them to the jurisdiction of a foreign sovereign b. The "fair warning" requirement is satisfied where a D has "purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that "arise out of or are related to" those activities (specific jurisdiction) c. 2 prong jurisdictional test i. Are there "minimum contacts"? 1. For specific jurisdiction: a. Did D purposefully direct activity toward the forum state? b. Did the cause of action arise from or does it related to the activity? ii. If yes, consider "reasonableness factors" of WWV d. Contract by itself is insufficient to establish minimum contacts- must evaluate i. Prior negotiations ii. Contemplated future consequences iii. Terms of the contracts and iv. Parties' actual course of dealing 4. Effects Test 4 iii. iv. v. vi. vii. a. Minimum contacts sufficient to support specific jurisdiction can be established by intentional conduct take outside the state where actor knows and intends that the effects of the conduct will be felt in the state. (can only be used w/ an intentional tort) Specific Jurisdiction 1. Limited jurisdiction 2. McGee is specific jurisdiction 3. Dispute arises out of activities in the state 4. Dispute based on the "limited activity" in that state. Don't need any contacts 5. Very minimal contacts will support 6. Sporadic forum activity, even a single act, may be sufficient 7. But- activity must be purposeful. D must purposefully avail himself of opportunity to conduct activity in the forum state Further Refinement of Minimum Contacts The "Reasonableness" Prong Stream of Commerce Theory (Minimum contacts) 1. Asahi a. O'Conner- Mere awareness not enough. Must also have an action of D purposefully directed toward forum state b. Brennan- awareness alone SHOULD be enough c. Social policy- we don't want to get involved in a dispute btwn 2 foreign companies General Jurisdiction 1. Controversy need not be related to D's contacts w/ the forum 2. Contacts must be: a. Substantial- subjective, the revenue that was generated b. Systematic- must have some type of business out of the area c. Continuous- uninterrupted 3. Can be sued for anything in that state 4. For individuals- Where you are domiciled 5. For corporations- where the corporation is incorporated, principle place of business 6. Tag jurisdiction is also general jurisdiction 7. Based on Presence a. Transient Jurisdiction b. Burnham v. Superior Court 5 c. Exists when a non resident D is found and served w/in the forum state, but his presence there is i. Intended to be only brief and ii. May be unrelated to the controversy raised by P's Claim d. Jurisdiction based on physical presence in forum state alone is consistent w/ due process clause e. Must be in the state voluntarily viii. Consent 1. Forum selection clauses are subject to judicial scrutiny for fundamental fairness and can trump procedural rules of jurisdiction a. Must not be a bad faith attempt to discourage pursuit of legitimate claims b. Consent must not be obtained through fraud or overreaching c. Contracting party must have notice of clause and the option to reject w/ impunity (reasonable parity of bargaining power) ix. PJ and the Internet 1. Where D internet corporation contracts w/ residents of state through web sit that involves knowing transmission of computer files, PJ is proper 2. Where web sit is merely passive, no PJ based on residents' ability to log onto web site 3. Where web site is interactive, PJ is determined by examining level of interactivity and commercial nature of the exchange of information that occurs on the web site g. Restraints on Personal Jurisdiction i. The Requirement of Notice 1. Notice (notice reasonably calculated, under all of the circumstances to notify D of action) 2. Opportunity to be heard 3. Mullane- Constitutional Minimum a. Even if there is otherwise a proper basis for jurisdiction, a court CANNOT exercise jurisdiction over a person w/o providing proper notice b. Notice must be reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections 4. Rule 4 6 a. Requires more than the constitutional minimum b. Sets out the procedure for notifying a D that a federal civil lawsuit has been filed against him through service of process c. Summons and Complaint must be served together on D after the Complaint is filed i. Summons- have the name and address of each D. Needs clerk's seal ii. Complaint- the lawsuit itself. Have to have it filed and ready to serve. Have 120 days to serve after filing. Required to file return of service iii. P is responsible for preparing the summons in the appropriate form and for achieving effective service on D iv. Process server may be any adult who is over the age of 18 and is not a party d. (4(e))- Service of process of any competent adult individual found in the US can be made: i. Pursuant to specific federal statue ii. Pursuant to State law iii. By waiver under Rule 4(d) iv. By personal service v. By leaving at D's home vi. By leaving w/ authorized agent e. Rule 4(d) Waiver i. D is required to waiver service if requested by P in order to avoid costs of formal personal service ii. Waiver of process does not result in a loss of right to contest venues, PJ or SMJ, only right to contest service of process and method of service is waived (inadequacy of process and Inadequacy of service) iii. Incentive to waiver service: 1. D gets 60 days following request for waiver to answer complaint90 days if not in the US (instead of 20 days 2. Penalty for refusal to waiver w/o good cause- D assessed costs of formal service iv. Can have substitute service by publication. Have to go back to court and get permission. Have to show P 7 III. made a good faith effort. What is reasonable under the circumstances? f. Actual notice will not cure defective service ii. The federal courts can assert PJ over Ds who are not US residents, have contacts w/ the US as a whole, but insufficient contacts w/ any particular state iii. Long Arm Statutes 1. State court cannot exercise extraterritorial jurisdiction w/o authority of the state, expressed in long arm statutes 2. Long arm statute cannot confer personal jurisdiction that exceeds the bound of that permitted under the due process clauses. but they can confer less jurisdiction 3. Obtaining jurisdiction over a non-resident D requires a 2-pronged analysis: a. Are there sufficient jurisdictional facts to bring D w/in coverage of the State's long-arm statute? b. If yes, are there sufficient minimum contacts to comply w/ the constitutional requirement of due process? 4. Why have enumerated long arm statute? a. Lessen case load b. Luring business to your jurisdiction 5. Rule 4(K)- Territorial limits a. Federal courts look at the state's long arm statue b. 100 Mile Bulge Rule- can add 3rd party w/in 100 miles of court, even if out of state c. Who are subject to jurisdiction in the state d. Who are subject to jurisdiction under the Federal Interpleader Statute (28 USSC 1335) e. Who are subject to suit pursuant to a federal statute providing for national or worldwide service of process f. When Sufficient contacts w/ US as a whole, the burden is shifted to D to name a state Subject Matter Jurisdiction- state or federal court? a. Must exist for the court to render a binding, enforceable judgment b. No full faith and credit unless court had SMJ over controversy c. Need a constitutional (Article III) and a statutory basis for being in federal court (limited jurisdiction) d. State courts are general jurisdiction, can hear any lawsuit unless there is a statute that says they can't. 8 e. Article III Section 2 sets the jurisdictional boundaries, permitting federal court to hear, inter alia: i. Cases "arising under this constitution, the laws of the US and Treaties made...under their Authority" (Federal question) ii. Cases btwn citizens of different states (diversity jurisdiction) iii. Cases btwn a state or its citizens and foreign states or their citizens or subjects (alienage jurisdiction) (2 aliens can't sue in federal court but can sue in state court) iv. Congress has limited this f. Federal Question i. 28 USC Section 1331 "The district courts shall have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the US" ii. Only deals w/ original jurisdiction of Federal District Courts, NOT appellate jurisdiction iii. Louisville & Nashville Rail Road v. Mottley 1. The "Well-Pleaded Compliant Rule": a. A suit "arises" under federal law only when the P's statement of his own cause of action shows that it is based upon federal law b. A P can't invoke the original jurisdiction of a federal court by either anticipation of a federal defense or otherwise importing a federal question into his complaint that is not essential to his case. The potential of a Federal Question is not enough iv. Grable & Sons Metal v. Darue Engineering 1. "Federal Ingredients Test"- Federal court has federal question jurisdiction over state law claims if it: a. Necessarily states a federal issue that case can't be resolved unless issue is resolved b. Which is actually disputed and substantial v. Key Questions in determining if there is federal question jurisdiction 1. Is there a federal issue? 2. Is the federal issue an essential part of the P's wellpleaded complaint? 3. If federal law is not the basis for P's claim, is the federal issue sufficiently important to "federalize" the case? g. Diversity i. 28 USC 1332: Original jurisdiction in federal district courts exists where: 1. Amount in controversy exceeds $75K, exclusive of interest and costs and 9 2. Suit is btwn a. Citizens of different states b. Citizens of a state and citizens of a foreign state c. Citizens of a different state and in which citizens of a foreign state are also parties d. A foreign state a P and citizens of a state or different states 3. Requires complete diversity of parties. 4. To be a citizen of a state a natural person must be both a citizen of the US and a domiciliary of that state a. Domicile- place of person's "true fixed and permanent home and principle establishment" b. Intention to remain there indefinitely 5. Corporations have dual citizenship- NOT OPTIONAL, MUST STATE BOTH a. State of incorporation (can be incorporated in more than one state) b. State of principal place of business- Tell by 1 of 2 tests: i. "Muscle Test"-look at where the greatest amount of everyday business activity is conducted (Total Activities Test or Place of Operations Test) ii. "Nerve Center Test"- Look at where executive and administrative functions are controlled; the corporation's operating headquarters 6. Partnerships & Unincorporated Associations a. Are treated differently than corporations for citizenship purposes b. Considered citizens of EVERY state in which one or more partners is a citizen c. Courts must consider citizenship of ALL partners, whether general or limited d. The partnership is the party- can't drop a member 7. 1988 Amendment For purposes of 1332(a), an alien admitted to the US for permanent residence is deemed a citizen of the state in which the alien is domiciled. Always works to defeat diversity ii. Diversity is determined by citizenship at the time the complain is filed 10 iii. Jurisdiction is unaffected by subsequent changes in the citizenship of the parties. Citizen at the time of filing suit controls- not citizenship before or after date of filing iv. Saadeh v. Farouki 1. If no diversity when the complaint was filed, it can't be created by change of citizenship/domicile by party 2. But court may cure jurisdictional defect by dismissing dispensable, non-divers party pursuant to Rule 21 v. Amount in Controversy- Is it enough? (75K+) 1. Aggregation of claims a. One P w/ 2 or more claims against 1 may aggregate, even if unrelated b. Multiple P's w/ claims against 1 D may not aggregate in their claims are separate and distinct (each P has a separate claim- each has to demonstrate own damages) c. Where multiple P's or multiple D have common undivided interest or single title or right, the value of the total interest controls h. Supplemental Jurisdiction i. The Test1. 28 USC 1367(a) (SCNOOF) a. Does the jurisdictionally insufficient claim arise out of the same common nucleus of operative facts i. Are the claims so related that they for part of the same case or controversy? ii. Do they arise from the same transaction or occurrences? b. If yes, proceed to 1367(b) 2. 28 USC 1367(b) a. Precludes exercise of supplemental jurisdiction where all 4 requirements i. Jurisdiction over anchor claim is based on diversity jurisdiction ii. Jurisdictionally Insufficient Claim is brought by P iii. JIC is being brought against parties joined under rules 19, 20, 14, or 24 iv. Exercising jurisdiction over the JIC is inconsistent w/ requirements of 28 USC 1332 3. 28 USC 1367(c) a. Even if the proposed supplemental claims passes the test laid out by 1367(a&b) the 11 federal court may still decline to exercise jurisdiction (Discretionary where: factors (4)): i. Novel or complex issue of state law ii. Supplemental claims substantially predominates federal claim iii. Court has dismissed all federal claims iv. For other compelling reasons i. Removal Jurisdiction Only original D can remove. i. P decides where to file lawsuit. D gets to second guess if P could have sued in federal court, D can remove it to federal court. D files notice and why he can put it in federal court ii. 28 USC Section 1441(a) 1. P gets to choose where to file. Any civil action brought in State court over which the federal courts have original jurisdiction may be removed to federal court bye the D, only, to the federal district court and division of that districts where the state action is pending iii. Notice of Removal- D has to say on what jurisdiction they want removal. Case will then be removed to sate court. iv. Well pleaded complaint bars removal v. If D files counterclaim based on federal law P may not remove case because removal is D's right only vi. If St. P has possible question, but does not assert it, D may not remove case by relying on unasserted claim vii. 28 USC Section 1441(b) 1. Any state court action where original federal jurisdiction exists based on a federal question shall be removable w/o regard to citizenship of the parties 2. Any State court action where original federal jurisdiction exists based on diversity of citizenship shall be removable EXCEPT where the D (or any D) are citizens of the state in which action is filed (Home State D Rule) 3. One year rule- Can't remove after 1 year of filing lawsuit viii. Rule 11 ix. 28 USC 1447 1. A motion for remand based on any defect other than subject matter jurisdiction must be w/in 30 days after filing notice of removal 2. Can remand at any time before judgment for lack of SMJ 12 IV. Venue- What judicial district or county Can be waived and can consent. Purely statutory. Concerned w/ convenience. a. 28 USC 1391- Provides for 2 general alternative and a "fall back" provision and provide that venue lies: i. Where any D resides in the same state ii. Where substantial part of the events or omissions occurred or substantial part of property is located iii. If neither of the 1st 2 venue alternative apply, P has a fall back position through 1391 (a) (3) and (b) (3). Applies ONLY if no district in which action could otherwise be brought 1. In diversity only cases P can sue in judicial district where any D is subject to personal jurisdiction at time action commenced 2. In other cases, P may sue in any judicial district where any D resides b. Removal has its own venue statute- when removed from state court to federal court, must correspond w/ the geographical region c. Forum Non Conveniens i. P has done every thing right. When can't use transfer statute, use forum non conveniens. ii. A court may dismiss a case on ground of forum non conveniens only where : 1. Another court has jurisdiction to hear the case and 2. The cause of action has no substantial connection w/ the state in which the court sits and that consideration outweighs deference given to P's choice forum iii. Private interest factors 1. Relative ease of access to sources of proof 2. Availability of compulsory process for attendance of unwilling and cost of obtaining attendance of willing witnesses iv. Public Interest Factors 1. Rarely used in federal court- mostly used in state courts. Discretion of the trial court and is largely immune from appellate review d. Transfer i. 28 USC 1404 For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. If filed in the right district court, the law of that court (state) runs w/ the case ii. 20 USC 1406 District court in which case of improper venue filed, may 13 V. dismiss case or, if it be in the interest of justice, transfer case to any district in whit it could have been brought iii. 28 USC 1631 Provides that when venue is proper but jurisdiction is lacking, a court w/o jurisdiction can transfer the case to any other court in which the action could have been brought at the time it was originally filed 1. Can do so "in the interests of justice" 2. Date of filing is retroactive to date of filing in original court Pleadings a. P makes a short, plain statement of all of material elements of a claim, showing entitlement to the relief sought. b. Serves one function- to give notice c. Rule 7(a)- Permissible pleadings that may be filed in federal court i. Complaint ii. Answer iii. Reply to a Counterclaim (D sues P) iv. Answer to a cross claim (when P or D sues a co-party), if the Answer contains a cross-claim v. A Third Party Complaint (when D sues 2 nd party) vi. A Third Party Answer d. Rule 10 On original lawsuit you have to list all P's and all D's e. Rule 8- Pleading i. Statement of SMJ 1. Jurisdictional basis- allege the basis, and the citizenship of the parties. 2. Short plain statement ii. Statement of the claim 1. Short plain statement of claim showing pleader entitled to relief 2. Numbered paragraphs iii. Demand for judgment 1. What do you want? iv. Failure of complaint to allege specific acts by D does NOT negate sufficiency of complaint under Rule 8 f. Federal Pleading i. Disfavored Claims Rule 9- Pleading special matters 1. Fraud- allegations of fraud must be pled w/ particularity; requires pre-complaint research 2. Mistake- must be plead w/ particularity 3. Special damages- pleaded w/ particularity ii. Ethical Limitations 1. Rule 11 14 a. Every paper filed w/ court must be signed by a lawyer. b. Reasonable under the circumstances c. If you have the factual basis, but still file for an improper purpose, you violate 11(b) d. Sanctions i. In a separate motion from any thing else ii. Serve it on the party (not the court yet) and they have 21 days to fix it iii. Rule 11 motions are subject to Rule 11 sanctions iv. On the court's initiative, 21 day safe harbor doesn't apply. v. May include 1. Monetary- usually paid to court 2. Limitations vi. Discretionary vii. Goal is deterrence viii. Doesn't apply to discovery ix. Doesn't apply to conduct falling outside scope of Rule 11 g. Rule 8(b) Requirements for Register to View AnswerMust: i. Admit ii. Deny or iii. If you don't know, state that you are w/o knowledge or information sufficient to for a belief as to the truth of the averment iv. In federal court "neither admit not deny" is taken as an admission v. If you are required to respond to something and you don't, it's an admission h. Responsive Pleading i. Rule 8(c) 1. Affirmative defense must be pled in a party's 1 st responsive pleading, other wise it's waived ii. Rule 12 Rule 12(a) prescribes the time limits w/in which D must answer a complaint 1. w/in 20 days after being served w/ the summons and complaint or 2. w/in 60 days after the request for waiver of service if D agreed to waive formal service under Rule 4 (90 days if D is outside the US) 15 3. A party has 20 days to respond to a cross-claim or a counterclaim filed w/ an answer 4. Rule 12(b) All legal and factual defenses must be asserted in 1 st responsive pleading (However, 7 defenses may alternatively be made by motion) 5. 12(g) Must join all Rule 12 defenses and objections in Rule 12 motion. Omission of objections to PJ, venue, process or service results in waiver 6. 12(h) Defenses and objections to PJ, improper venue, insufficiencies of process and insufficient service are waived if: a. Not asserted in Rule 12 motion, if such a motion is made or b. Not asserted in 1st responsive pleading, if a rule 12 motion is not made 7. 12(b) (6) Attacks the legal sufficiency of the complain. In essence the motion says "Even if everything you allege is true, the law affords you no relief". Assume everything is true 8. Affirmative defenses- is it a new matter? i. Rule 7- Motions j. Rule 5- Service and Filing i. Purpose of the rule- to ensure that each party obtains a copy of all documents used to prosecute and defend the action ii. Creates a rationally assembled record w/ the clerk of the court iii. Service of papers is generally made on each party's lawyer, not on the party. iv. Methods of service: 1. Personal Delivery (hand, office, home) 2. Service by mail- done most often 3. Service by other agreed means 4. If address unknown, leave w/ clerk of court v. Any paper require to be served must also be filed w/ the court w/in a reasonable time after service. vi. Must also file certificate of service. vii. Service is effective at the time of mailing (mail box rule) viii. Discovery material is not filed w/ the court unless actually used n court proceedings or court order filing k. Rule 6- Computation of Time (mailbox rule) i. Being counting day after triggering event (mailing) 16 ii. Time period may not end on Saturday, Sunday or legal holiday- it goes to the next day that the court house is eligible iii. When time period is less than 11 days intermediate Saturdays, Sundays and legal holidays are excluded iv. District courts may grant enlargements of time periods fixed by the Rules v. When a rule permits an act to be accomplished after "service", 3 extra days will be added if service was by mail l. Amendments to Pleadings i. Rule 15(a) 1. A party may amend once as a matter of coursea. Before responsive pleading is served or b. w/in 20 days of service if no responsible pleading is required (to an answer) 2. Must respond to amended pleading w/in original time (what was left on original time) for response or 10 days after service, whichever is longer 3. "as Justice so requires" ii. Once "amendment of right" period has passed, party must obtain leave of the court to amend 1. Leave to amend shall be freely granted 2. Amendment may be denied if it is: a. Unreasonably dilatory b. Futile c. In bad faith d. Unduly prejudicial to opposing party 3. iii. Rule 15(b)- Amendments to conform to the evidence 1. Usually made during or after trial 2. Can be made by consent of the parties 3. Can be made over objection of party where a. Presentation of merits will be served b. Objection party cannot show prejudice 4. Can be denied look above ii(2)(a-d) iv. Rule 15(c)(1)- Statute of Limitations 1. If SOL governing cause of action permits relation back of amended pleadings, then relation back is permitted 2. Only applies if SOL is more generous to amended pleading than Rule 15(c) 3. Will the claim relate back to the original filing date? v. Rule 15(c)(2)- Transactional Relationship Test 1. Permits relation back if amended claim or defense arouse out of the same transaction or occurrence as that set fort in original pleading 17 2. Critical issue- whether the original complaint gave notice to the D of the claim later asserted by amendment 3. General to specific- more likely to add a claim (Bonerb) 4. Can bring in new legal theories if based on the same transaction or occurrences vi. Rule 15( c)(3)- Amendment amending parties relates back if: 1. Arises out of the same transaction or occurrences as set out in the original pleading 2. Party added received notice of action w/in 120-day period after filing of original pleading provided by Rule 4(m), such that he would not be prejudiced 3. Party added knew or should have known that the action would have been brought against him, but for a mistake in identity vii. Rule 15(d)- Supplemental Pleading Supplemental pleadings sets forth events occurring after pleading is filed. "update" m. Defaults i. Rule 55 Defaults 1. 55(a) Entry of Default a. When a party against whom judgment sought fails to plead or otherwise defend as provided by these rules and b. That facts is set for in an affidavit c. Complaint deemed affirmed d. Is a ministerial act by the clerk to enter default e. No action by judge is needed 2. 55(d) Default Judgment a. By the Clerk- when P's claim is for a sum certain or for sum which can be computation be made certain, upon request of P and upon affidavit of amount dues SHALL enter judgment for that amount and costs against D if: i. D has been defaulted for failure to appear and ii. D is not an infant or incompetent person b. By the court i. In all other cases, party entitled to judgment by default shall apply to court 1. IF the party has appeared in the action, the party shall be served w/ notice of the application for 18 default judgment at least 3 days before hearing 2. Court may conduct evidentiary hearing on issue of damages c. Motion to set aside default- a remedy for a default judgment 3. Setting Aside Defaults a. Favored; courts want to decide cases on the merits b. Must show good cause c. Meritorious defense d. In accordance w/ 60(b) 4. Rule 60(b) Relief from Judgment/Order a. Court may relieve party/party's representative from final judgment, order or proceeding b. Mistake, inadvertence, surprise, excusable neglect c. Judgment void d. Motion does not affect finality of judgment or suspend its operation n. Dismissals i. Rule 41(a)- Voluntary Dismissal 1. By P: a. If D has not yet filed answer or motion for summary judgment b. Dismissal is achieved by filing a notice of dismissal, not by motion and not court order is required c. Notice effective when filed, but must be served on all parties 2. By Stipulation (an agreement by parties) a. P may dismiss action w/o consent of court by stipulation of all parties or unilaterally 3. Voluntary dismissal leaves D in position as if lawsuit was never filed ii. Dismissal w/ Prejudice (2 dismissal rule) Doesn't deal w/ stipulation dismissal, adjudication on the merits 1. Dismissals by stipulation are presumed to be w/o prejudice unless specified otherwise 2. Dismissal unilaterally by P governed by 2 dismissal rule: a. The 1st voluntary dismissal is w/o prejudice b. The 2nd dismissal acts as a final adjudication on the merits and will preclude a 3 rd action from being filed 19 VI. 3. Once and action is barred in federal court by the 2 dismissal rule, it will also be barred in state court (2 dismissal rule does not apply if 1st dismissal was by court order under 41(a)(2)) 4. An action dismissed w/o prejudice does not toll the SOL iii. Vaqueria 1. Party may not exploit provisions of 41(a) to voluntarily dismiss a case and later re-file the same suit for the improper purples of judge shopping iv. 41(a)(2)- Dismissal by order of the court 1. Except as provided by Rule 41(a), dismissal of an action must be by court order 2. Dismissal by court order may be w/ or w/o prejudice 3. A court order granting voluntary dismissal is presume w/o prejudice unless noted otherwise v. 41(b)- Involuntary Dismissal 1. Governs 2 types of involuntary dismissals: a. Dismissal for failure to prosecute b. Dismissal for failure to comply w/ other rules or court order 2. Involuntary dismissals are w/in the discretion of the court and are disfavored (want cases decided on merits, not technicality) Simple Joinder a. Claims i. By P (Rule 18) 1. No restrictions 2. Claim may be related or not 3. No compulsory joinder 4. Party can bring all claims they have against other parties, even if claims are unrelated. 5. Rule is permissive 6. Must have PJ, SMJ, and venue ii. By D (Rule 13) 1. 13(a)- Compulsory a. Arises from the same transaction or occurrence that gave rise to P's complaint b. Must be asserted or it is waived c. Exceptions i. Immature claims- must mature before answer ii. Lack of jurisdiction over 3rd parties iii. Pending Lawsuits d. Must satisfy SMJ and PH e. Everything else is permissive 20 2. 13(b)- Permissive iii. 1367(a) 1. Federal courts have supplemental jurisdiction over compulsory counter claims, but permissive counter claims require their own jurisdictional basis 2. Requires SCNOOF iv. Logical Relationship Test 1. Analyzes whether essential facts of various claims are so logically connected that considerations of judicial economy and fairness dictate that all issues be resolve in 1 lawsuit 2. When the counterclaim arises from the same "aggregate of operative facts" in that the same operative facts serve as basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the D 3. Flexibility b. Parties i. Cross Claims 1. A claim that is filed against a party who is on the same side of the "v" 2. Claim is against a co-party 3. Not compulsory 4. PJ and SMJ ii. Counterclaim 1. Compulsory counterclaim must be asserted or it is lost iii. Crossclaim- always permissive iv. Rule 20- Joinder of Parties 1. 2 Requirements a. Persons joined must have claims that arise out of the same transaction or occurrence or series of transactions or occurrences and b. All parties joined must have in common at least one question of law or fact rd v. Rule 14- D 3 Party Claims (Impleader) 1. Someone is asserting a claim against someone not already a party to the suit 2. If the person is already a party, then it is a cross claim 3. D must draft 3rd party complain and serve 3rd party w/ process to bring into suit 4. Based on derivative liability. Not that it was D's fault and not mine. Saying "If me, then he owes me" 5. Allows a party defending a claim to join other persons not yet parties 21 6. Not accessing liability, accessing damages vi. Rule 13- Counterclaims 1. Compulsory 2. Permissive (needs independent basis for PJ, SMJ and venue) 3. If not asserted, then it is waived vii. Rule 42 Judge may sever sua sponte or on a motion from the parties c. Supplemental Jurisdiction i. 1367(b)- Precludes exercise of supplemental jurisdiction when all 4 following requirements are met: 1. Jurisdiction over anchor claims is base on diversity 2. Jurisdictionally insufficient claim (JIC) is brought by P 3. JIC is being brought against parties joined Under Rule 19, 20, 14 or 24 and 4. Exercising jurisdiction over the JIC is inconsistent w/ requirements of 28 USC 1332 5. DPajD, Must have all 4 to defeat a claim 6. Under 1367 b claims against persons made parties under rule 14,19,20 and 24 are forbidden; however claims BY parties who join under Rule 20 are not forbidden 7. Claims BY parties joined under Rule 10, because they are essential to the adjudication are FORBIDDEN if it spoils diversity jurisdiction, but claims BY parties joinder under Rule 20 for convenience are allowed 8. It isn't AGAINST a party joined, it is a claim BY parties joined ii. Indivisibility Theory 1. Assumes that all claims in the compliant must stand or fall as a single, indivisible "civil action" as a matter of definitional necessity- REJECTED iii. Contamination Theory 1. Inclusion of a claim or party falling outside the court's original jurisdiction contaminates every other claim in the complain, depriving the court of original jurisdiction over any of the claims 2. Doesn't make sense w/ amount in controversy requirement. Won't contaminate 3. Overruled Clark and Zahn a. Clark- each P had to have amount in controversy b. Zahn- dismiss the P's that don't meet the amount 22

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