Professor Clark

Fall 2014
CHECKLIST

I. PERSONAL JURISDICTION
1) Was ∆ present in the forum state when he was served? If so → valid general PJ (1)
2) If not, is there a long-arm statute providing for jurisdiction? If so → proceed to #3 (1)
3) Did the ∆ consent in one of the following ways? If so → valid PJ (1)
i. Forum selection clause
ii. Appointment of an agent
iii. Conduct in litigation
iv. Nonresident motorist statute
4) Is there general jurisdiction? If so → valid PJ (1-2)
i. Present in forum state when served?
ii. Citizen or domiciliary of forum state?
iii. Forum state is ∆’s state of incorporation or principal place of business?
iv. Are ∆’s contacts with the forum state continuous and systematic?
5) Is there specific jurisdiction? (Shoe Test) If so → valid PJ (2-3)
i. Does the ∆ have sufficient minimum contacts with the forum state? Consider:
1. Initiation
2. Relatedness/nature of activities
3. Purposeful availment
4. Foreseeability
5. If website: level of interaction/active v. passive
ii. Would asserting jurisdiction offend notions of fair play and substantial justice? (Asahi)
6) Is there jurisdiction over property? (3)
i. In rem
ii. Quasi in rem (Shoe Test)
7) Is there PJ in the federal courts? (3)
i. Use FR 4(k)
8) How can the ∆ challenge personal jurisdiction?
i. Direct attack
1. Special appearance
2. 12(b)(2)
3. Limited appearance (quasi in rem)
ii. Collateral attack
1. Ignore it (default)
II. SERVICE OF PROCESS & NOTICE
1) Was notice adequate and proper? (5-6)
i. 4(c): who/what
ii. 4(d): waiving service
iii. 4(e): effecting service within US
iv. 4(h): serving a business
v. 4(k): PJ in federal courts
vi. 4(m): 120 days to effect service
2) Was notice reasonable?
i. Reasonably likely to inform ∆, whether informed or not
ii. Appointed person?
iii. Publications, postings and mail?
3) Did the ∆ have opportunity to be heard?
i. Adequate opportunity at an appropriate time
III. SUBJECT MATTER JURISDICTION
1) Diversity Jurisdiction—§1332 (8-9)
i. Is there complete diversity? and
ii. Is the amount-in-controversy requirement satisfied?
2) Federal Question Jurisdiction—§1331 (10)
i. Does the claim arise under the Constitution, laws, or treaties of the U.S.? and
1. Applies if the π’s claim requires proof of federal law
ii. Is the complaint well pleaded?
1. Mottley Rule: federal issue must be present in original claim
a. Creation Test: under the law that creates the cause of action
3) Removal (11)
CHECKLIST 1
 Professor Clark
Fall 2014
CHECKLIST

i. Watch out for diversity

4) Joinder & Supplemental Jurisdiction
i. Do the rules of joinder allow the claim or party to be added? And (12)
1. Rule 18: joinder of claims
2. Rule 13: counterclaims and crossclaims
3. Rule 20: permissive joinder of parties
4. Rule 19: required joinder of parties
5. Rule 14: impleader/3rd parties
6. Rule 42: consolidation/separate trials
7. Rule 21: misjoinder/nonjoinder
ii. Is there supplemental jurisdiction over the new claim or party? (14)
1. Is there constitutional power under Article III, §2, to hear the supplemental claim?
a. Did the π bring a proper federal question claim or diversity claim, so that the federal court
has “original jurisdiction”? and
b. Does the related claim arise from the same nucleus of operative facts?
2. Is there a statutory grant of jurisdiction over the related claim?
3. Should it hear the related claim?
5) Attacking SMJ (15)
i. Direct attack
1. At any time
ii. Collateral attack
IV. VENUE
1) Venue: §1391(b)—A civil action may be brought in… (16)
i. (1) A judicial district where any ∆ resides, if all ∆s reside in same state
1. See §1391(c) and (d) for business/entity residence
ii. (2) A judicial district which substantial part of the events or omissions giving rise to the claim occurred
iii. (3) Judicial district in which any ∆ is subject to PJ at the time the action is commenced, if there is no district in
which the action may otherwise be brought
2) Transfer (17)
3) Forum Non Conveniens (17)
V. PLEADING
1) Modern pleading (18)
i. Statement of jurisdiction; and
ii. Statement of entitlement to relief; and
1. Allege facts with sufficient specificity to state a claim for relief that is plausible, not merely
conceivable, on its face (Twombly).
iii. Demand for relief sought
2) Pleading special matters (18)
i. Rule 9: In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud
or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
ii. PSLRA: heightened version of rule 9; facts giving rise to a “strong inference” that the ∆ acted with scienter must
be stated with particularity
3) Responding – Motions (19)
i. Rule 12: defenses and objections
1. 12(b) – 7 motions to dismiss, including (6), failure to state a claim upon which relief can be granted
4) Responding – Answer (19)
i. Rule 8(b): defenses; admissions and denials
ii. Rule 8(c): affirmative defenses
5) Amendments (20)
i. Rule 15: amendments before, during and after; relation back
6) Integrity (21)
i. Rule 11: signatures, representations to the court and sanctions

CHECKLIST 2
 Civil Procedure I, Fall 2014 (P. Lewton)
PERSONAL JURISDICTION (1 ST OF 3 REQUIREMENTS)

1. Was ∆ present in the forum state when he was served? If so → valid general PJ.
• Upheld by Burnham v. Superior Court, pg. 180
o Scalia with 2 other justices says traditional notion says this is okay
o White says it’s okay but does not say why
o Brennan with 3 other justices applies the International Shoe test to established minimum contacts
and fair play and substantial justice to justify jurisdiction
This allows people to be served anywhere they have been!
• Was ∆ tricked into the forum state by fraudulent means? → NO jurisdiction (Tickle v. Barton)

2. If not, is there a long-arm statute providing for jurisdiction? If so → proceed to #3

There must be a long-arm statute that allows for assertion of PJ over non-resident ∆s, but without exceeding Constitutional
limits.

• LAS may be a blanket LAS (California) or an enumerated LAS (Gray v. American Radiator)
• Many long-arm statutes allow a single contact by ∆ to assert PJ over a cause of action that arose directly out
of that contact (specific jurisdiction)
o A single contact is NOT adequate to assert jurisdiction over a claim unrelated to the contact
• Some long-arm statutes require substantial business to take place to justify PJ
• Some statutes allow jurisdiction over persons committing tortious acts within the state
o Some “in-state tortious acts” long-arm clauses have been interpreted to include acts done outside the
state producing tortious consequences in the state
• Stretching or shrinking due process:
o Some states assert less jurisdiction because they want to deter extensive out-of-state claims that
produce greater burdens for their courts that are not a priority directly for the good of the state
o Other states’ LAS’s have some elements that can stretch outside the limits of the due process clause
and create constitutional issues with jurisdiction

3. Did the ∆ consent in one of the following ways? If so → valid PJ

• Consent through forum selection clause (“FSC”)(express)?
o Carnival Cruise Lines: SCOTUS upheld FSC for three reasons: (1) it is reasonable for a cruise line that
operates around the world to limit the fora, (2) doing so saves litigants time and expenses in
determining the forum; and (3) doing so saves Carnival money, which saves customers money.
o This includes offshore courts (M/S Bremen v. Zapata Off-Shore)
• Consent through appointment of an agent (express)?
o National Equipment Rental: valid PJ if agent gives prompt notice; “different case” if not prompt
o Some states allow general jurisdiction from this and some allow only to sue for matters growing out
of the business with the state
• Consent through conduct in litigation (implied)?
o By filing a complaint, a π consents to a counterclaim by ∆ against the π
o A failure to object = consent
o If a court orders discovery into whether a party is subject to jurisdiction and the party does not
comply, the court can say that this implies waiver/consent to jurisdiction (Insurance Corp. of Ireland)
o If a corporation does business in a state surreptitiously, they can be held for PJ without registering
someone to accept service of process
• Consent through a nonresident motorist statute (implied)?
o All states have such a statute (see Hess v. Pawloski)

4. Is there general jurisdiction? If so → valid PJ

• Was the ∆ present in the forum state when he was served? (#1 above)
• Is the ∆ a citizen or domiciliary of the forum state? (Milliken)

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PERSONAL JURISDICTION (1 ST OF 3 REQUIREMENTS)

o An individual must reside in the state with the intent to remain within the state in order to be
considered a domiciliary of the state. Citizenship is determined at the time the complaint is filed.
o Modern rule: property alone is not sufficient (Shaffer v. Heitner)
• Is the forum state a ∆’s state of incorporation or principal place of business?
• Are the ∆’s contacts with the forum state continuous and systematic? (Perkins)
o Is the ∆ “at home” in the forum state? (Goodyear)
o Negotiations and purchases in the forum State are NOT enough (Helicopteros)

5. Is there specific jurisdiction? If so → valid PJ

International Shoe Test: ∆ must have sufficient minimum contacts with the forum state that such that jurisdiction
would not offend traditional notions of fair play and substantial justice.
Does the ∆ have sufficient minimum contacts with the forum state?
1. Initiation – Did the ∆ initiate contact with the forum state?
2. Activities – How related was the ∆’s activity/contacts to the forum state?
No contacts No jurisdiction World-Wide Volkswagen
Casual or isolated No jurisdiction Kulco—flew daughter to CA
Single act Specific McGee—single insurance policy
Continuous but limited Specific Burger King
- -- --- SCOTUS has not defined this line/threshold --- -- -
Continuous and systematic General Perkins
3. Purposeful availment – Did the ∆ purposely avail itself of the privilege of conducting activities within the
forum state invoking the benefits and protections of the forum state’s laws directly or indirectly?
• A ∆ must deliberately choose to relate to the state in some meaningful way before he can be made to
bear the burden of defending there
o Walden v. Fiore (DEA agent); Kulko (daughter to CA); J. McIntyre Machinery
• A single act may suffice (McGee)
• But, if a company does not solicit business in a state, and is merely involved with the forum State based
on unilateral actions, there is not enough minimum contacts (Hanson—DE trustee; WWV)
• Effects Test (Calder—Nat’l Inquirer targeted CA from FL): Did the ∆ (1) commit an intentional act (2)
aimed at the forum state and (3) the act caused harm and ∆ knew it would?
• Stream of Commerce (Asahi):
o O’Connor Test: placement of product in stream of commerce is not enough.
Must have more, such as offices, agents, or employees in the forum state; marketing or
advertising in forum state; or creating product specifically for forum state.
o Brennan Test: placement of product in stream of commerce is enough because of (1)
foreseeability and (2) economic benefits and availment of state law
4. Foreseeability – Was it foreseeable for ∆ to be hauled into court in the forum state?
• Mere foreseeability insufficient (WWV)—∆ must have reasonably anticipation (McGee; Burger King)
Websites:
• Websites must be interactive (i.e. intend to impact and target forum State) to establish minimum
contacts (Generally no PJ)
o Putting info on website not enough – must intend to effect state through targeting (unique
product, ability to make reservations or contact owner of site, seeking out specific people)
• Zippo Test: Active (PJ) > Interactive (maybe PJ) > Passive (no PJ)
• Community Trust: When ∆ sent passwords to KY, this was intentional activity to permit KY residents to
continue to maintain accounts with ∆. What matters is not the quantity of D’s customers, but the quality.
It was not random, fortuitous or attenuated contacts with KY.

Would asserting jurisdiction offend notions of fair play and substantial justice?
Mention Asahi (only case) and whether foreign or not! (Asahi was foreign; hasn’t been/isn’t an issue within US)
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PERSONAL JURISDICTION (1 ST OF 3 REQUIREMENTS)

Considerations:
1. Burden on the ∆ (primary concern)
a. Consider ∆’s wealth, but not π’s
2. Forum state's interests in adjudicating the dispute
a. States have special interests like protecting public servants (police) and protecting residents
against insurers (McGee)
b. Where did the incident occur?
3. π's interest in obtaining convenient and effective relief
4. Interstate judicial system's interest in obtaining the most efficient resolution of controversies
a. Is this efficient? Whose law is being applied? Where are the witnesses located? Foreign entities?
5. Shared interest of the several States in furthering fundamental substantive social policies
a. Kulko—CA and NY both had shared interest in family harmony and—by denying jurisdiction in CA
over a father who acquiesced in his children's desire to live with their mother—public policies are
protected

6. Is there jurisdiction over property?

In Rem: jurisdictional predicate is the property of ∆
• If the ownership of real estate is in dispute, the court can make determinations of tangible property located in
the jurisdiction, and brought before the court through an attachment at the outset of litigation
• A valid judgment does not create a personal obligation
• Binds the entire world and anyone that comes in after the court decides the ownership gets paid out of state
fund (e.g., action to quiet title and give notice to those who may have claim as well to judge ownership)
• Location of property (both real or personal) gives state power over the owner regardless of where he lives
• Also used to determine status (marriage) or ownership of a bank account
Quasi-in-rem: suits brought because you own property but the issues have nothing to do with the ownership of
the property itself but used to get jurisdiction
• Modern rule: if a case has nothing to do with the property or the underlying cause of action has nothing to do
with the property itself, then jurisdiction is not valid unless a statute validates it (Shaffer)
o Seizure of property is essentially substitute for jurisdiction over the person, so if jurisdiction over the
person requires the International Shoe test, so should this – must assess whether ∆’s contacts with the
forum State satisfy minimum contacts
• Pennington v. Fourth National Bank: For the court to have power over the rem, the property must be within
the forum’s borders, it must be seized at the beginning of the proceedings, and there must be opportunity for
the owner to be heard; the power of the states to seize tangible and intangible property and apply it to satisfy
the obligations of absent owners is not obstructed by the federal Constitution.

7. Is there PJ in the federal courts? FR 4(k)

4(k)(1)(A): When a suit is brought in federal court, the federal court must treat itself as if it were a court of the
state in which it sits and apply same rules (International Shoe) and state’s LAS, including constitutional limits
4(k)(1)(B): Allows for expanded jurisdiction (joinder and claims)
• Applies to parties joined under Rules 14 and 19 and allows service "within a judicial district of the
United States and not more than 100 miles from where the summons was issued"
4(k)(1)(C): permits service when authorized by a federal statute
4(k)(2): a limited federal long-arm provision that establishes PJ "for a claim that arises under federal law" if the
∆ "is not subject to jurisdiction in any state's courts of general jurisdiction" and "exercising jurisdiction is
consistent with the United States Constitution and laws"
• A ∆ that wants to preclude use of this rule needs to name some other state in which the suit could
proceed, which would amount to consent.
• If the ∆ contends that he cannot be sued in the forum state, and refuses to identify any other where suit is
possible, then the federal court is entitled to use this rule

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PERSONAL JURISDICTION (1 ST OF 3 REQUIREMENTS)

So we have PJ? How can the ∆ challenge it?

8. How can the ∆ challenge personal jurisdiction?
Special Appearance (common law): coming into the forum state specifically to contest PJ w/o submitting to the
court’s jurisdiction for any other purpose. This must be done before proceedings start! If it isn’t, then you waive
your objection to PJ. You cannot bring up any defense on the merits or you waive your jurisdictional objection.
• If they find PJ, then you are bound by it (res judicata), but then you get a chance to argue the case on the
merits
o Most states say that after challenging PJ and losing, a ∆ can lose on the merits and appeal the
jurisdictional decision
• If they find PJ and you decide to default on the merits, you cannot challenge jurisdiction in the enforcement
action in your state
• You must follow courts orders on discovery on the PJ issue or else you waive your jurisdictional objection
and consent to PJ (Insurance Corp. of Irleand)
• A growing number of states are abandoning this common law approach for 12(b)-style challenging…
FR 12(b)(2): Similar to special appearance rule, but it allows ∆s to object to PJ and to assert other defenses at the
same time. However, just like SA, if you do not raise the objection in a pre-answer motion or in your answer, you
will waive your jurisdictional objection and consent to PJ—12(h).
Limited Appearance: coming into the forum state specifically to defend your interest in the attached property of
a quasi-in-rem suit without submitting to the full in personam jurisdiction
• The “Limited Appearance Problem”: Without a limited appearance provision, the ∆ must choose between:
o appearing and risking the possibility of an in personam judgment in excess of the value of the
attached property; or
o not appearing and forfeiting the property

Challenges to PJ: some common scenarios

∆/s Reponse to Orig. Suit Action in Rendering Ct. Action in Enforcing Ct.
∆ appears, defends on merits, and Enters judgment for π Must enforce the rendering ct’s
loses judgment, even if ∆ challenges the
rendering ct’s jurisdiction; ∆ has
waived his objection
∆ makes special appearance or In most cases, dismisses for lack of If original suit dismissed, there will
12(b)(2) motion; court agrees that jurisdiction; in some, may order be no judgment to enforce.
it lacks jurisdiction proper service to cure jurisdictional However, π may file a new suit in a
defect ct that has jurisdiction over the ∆
∆ makes special appearance or Enters judgment for π Must enforce judgment because ∆
12(b)(2) motion; court upholds already litigated the rendering ct’s
jurisdiction; ∆ defaults jurisdiction and lost
∆ loses on objection to jurisdiction; In most states, appellate ct may If jurisdiction upheld on appeal, or
defends action on the merits; loses; review decision that jurisdiction objection waived by defense on
appeals was proper; a few may treat merits, must enforce the rendering
defense on merits as waiver of the ct’s judgment
(Direct 1st 4 rows; Collat. bottom jurisdictional objection
2)
∆ defaults, contests jurisdiction in Enters default judgment for π, Enforcing ct may decide whether
enforcing ct unless lack of jurisdiction is clear rendering ct had jurisdiction; if it
from complaint finds it did not, it refuses
enforcement. If it finds that it did, it
must enforce the judgment
∆ defaults, enforcing ct sees no Enforces the judgment; Full Faith
issue with rendering’s J., π later and Credit Clause precludes

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 Civil Procedure I, Fall 2014 (P. Lewton)
PERSONAL JURISDICTION (1
ST OF 3 REQUIREMENTS)

denies liability on merits in the reexamination of merits, which are

enforcing ct settled by default

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 Civil Procedure I, Fall 2014 (P. Lewton)
SERVICE OF PROCESS & NOTICE

Due process requires that a ∆ be given [adequate and reasonable] notice and an opportunity to be heard before a
judgment can be entered against him (notwithstanding any state law saying otherwise)

1. Was notice adequate and proper? (Rule 4—Summons, pg. 13)

Rule 4(c) – What/Who
• 4(c)(1) – Summons and complaint must be served together
• 4(c)(2) – The server must be at least 18 years old and a non-party of the suit
• 4(c)(3) – At π’s request, the court can order a US marshal ($) or someone specially appointed to give the
service

Rule 4(d) – Waiving Service

• 4(d)(1) – the π can request that the ∆ waive the service
o π must send complaint and a specialized form of waiver of service (Forms 5 & 6)
o 4(d)(1)(G) – the waiver request must be sent by first-class mail or other reliable means
• 4(d)(2) – The ∆ can fail to sign and return a waiver request but:
o the ∆ must pay the expenses later incurred in making service; and
o the reasonable expenses of any motion required to collect those service expenses

Rule 4(e) – Service within in the U.S.

• 4(e)(1) – You can serve an individual by following the state law in the state where the district court is
located OR the state where the service is being made
o Maryland State Firemen’s Association v. Chavez - π served ∆ by first class mail when Md. Statute calls
for certified mail; thus, service was rendered invalid even though ∆ was aware of lawsuit.
• 4(e)(2) - OR you can serve by one of the following three ways (A, B or C):
o (A) Delivering a copy of the summons and complaint to the individual personally; OR
o (B) (1) Leaving a copy of each at the individual’s dwelling or usual place of abode (2) with someone
of suitable age and (3) discretion (4) who resides there; OR
Dwelling or usual place of abode? Usually where ∆ is presently living
Suitable age and discretion? Look from server’s prospective
• If you leave it with a small child or someone with memory loss or insanity, they might
still get it to the person to whom it is directed – case by case analysis
Resides?
• Person upon whom process is served must have enough connection to D's dwelling
that we are reasonably certain she will forward the papers to D so the person does
not need to reside there full time or be a family member (doormen, chefs,
housekeepers).
Nat’l Dev. Co. v. Triad - Court upheld service on man with 12 homes because you can have
many places of abode and since ∆ was actually living in apartment on day of service and
service was reasonably calculated to provide actual notice (service was given to housekeeper
who resided there)
Williams v. Capital Transit Co. - Court held service invalid bc it was left with ∆’s estranged wife
and she did not give him the service until 3 years after default judgment
Karlsson v. Rabinowitz - Court upheld service that was left with ∆’s wife in MD even though
the family was in process of moving and ∆ already left for AZ with no intent ever to return
o (C) Delivering a copy of each to an agent authorized by appointment or by law to receive service of
process
Must be proof that ∆ intended to confer authority upon the agent
Nat’l Equip. Rental - Court upheld service where agent is appointed in a contract signed by D,
even though D doesn’t know who the agent it. Also, it’s important that the agent promptly
gave notice to D

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SERVICE OF PROCESS & NOTICE

Rule 4(h) – Serving a corporation, partnership, or association

• 4(h)(1) – Must be served in a judicial district of the U.S.:
o (A) in the manner prescribed in rule 4(e)(1)
o (B) by delivering a copy of the summons and complaint to an officer, a managing or general agent, or
any other agent authorized by appointment or by law to receive service of process and—if the agent
is one authorized by statute and the statute so requires—by also mailing a copy of each to the ∆; OR
Ins. Co. of North Amer. V. Hellenic Challenger - Court upheld service, which was given to an
assistant not expressly authorized to receive service because it was delivered to someone so
integrated with the organization that he knew what to do with the papers. Also, he’s
accepted service twice before, but lost it this time.
Fashion Page v. Zurich - Court upheld service that was given to the executive secretary of the
VP because she said she “can take it” and she had accepted them many times before when the
VP wasn’t there. The corp. established this procedure of receiving service (there must be
evidence that ∆ itself intended to confer such authority upon the agent).
• 4(h)(2) – at a place not within any judicial district of the U.S., in any manner prescribed by Rule 4(f) for
serving an individual, except personal delivery under (f)(2)(C)(i)

Rule 4(k) – Personal jurisdiction in federal courts (see #7 in PJ)

Rule 4(m) – Time Limit for Service

• Gives π 120 days after filing the complaint (commencing the suit) to effect service of process on ∆.
• If π fails to effect service of process, then case is dismissed without prejudice unless π can show good cause
for the delay

2. Was notice reasonable?

Due Process prohibits the exercise of jurisdiction over a ∆ who has not been given reasonable notice of the suit.
Service must be reasonably calculated under all the circumstances to tell all interested parties of the pendency of
the action (convey required information) and give reasonable time for interested parties to make appearance and
present objections

• It is not necessary that ∆ actually has learned of the suit; rather, the procedures used to alert him must have
been reasonably likely to inform him, even if they actually failed to do so (Dusenbery—felon didn’t receive
letter sent by the State about his property; State used reasonable means—certified mail)
• If someone is appointed to receive service of process, the statute must require for that person to send the
notice to the ∆ (Wutcher)

• Publication
o Were names and addresses known? (Mullane)
Reasonable: when there is no info on where somebody is and there is no way of finding that
info
Cost/Benefit Analysis: no info, but info is possible to find. Must weigh:
• Cost to π
• Interest of unknown parties
Unreasonable: when names and addresses are known
o Is there family that could be easily reached? (McDonald—∆ left TX, but family was still there)
o Was there also mail sent? (Dobkin—publication and mail to ∆’s last known address; reasonable)

• Posting
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SERVICE OF PROCESS & NOTICE

o Posting notice on property is not enough; must send letter to home as long as ∆ is in the public
records (Walker v. City of Hutchinson—ended historic notion one can simply post signs on property)
o Posting notice of eviction on a tenant’s door does not satisfy due process because people often rip
these off doors; must do more (e.g. send letter)(Greene)
• Mail
o Certified mail returned? Must take additional step (Jones v. Flowers)
o Ordinary mail to last known address and publication? Fine. (Dobkin)
o ∆ known to be mentally insane with no guardian? Mail invalid. (Covey v. Town of Somers)

3. Did the ∆ have an opportunity to be heard?

Parties must have adequate opportunity at an appropriate time to present their side of the dispute.

Considerations:
• Degree of harm to ∆’s interest from prejudgment remedy
• Risk that the deprivation of ∆’s property will be erroneous
• Strength of π’s interest in getting remedy

SERVICE & NOTICE 8

 Civil Procedure I, Fall 2014 (P. Lewton)
SUBJECT MATTER JURISDICTION (2 ND OF 3 REQUIREMENTS)

SMJ: the court’s power to hear a case because of the nature of the dispute
• You can object to SMJ at any time during trial
• State Courts
o These are courts of general jurisdiction and the SMJ is determined by state constitutions,
statutes, and judicial decisions
• Federal Courts
o These are courts of limited jurisdiction
o SMJ is governed by Article 3 of the U.S. constitution, federal statutes (28 U.S.C. 1332) and federal
judicial decisions
Article 3 provides 9 categories of types of cases the federal courts can hear

Does the federal court have diversity jurisdiction?

28 USC 1332 (limits Art. III, §2): A federal court has SMJ for cases of diversity if the case is:
• Between completely diverse citizens; and
• The amount in controversy is greater than $75,000

Exceptions:
• Domestic-relations cases: family/divorce stays in state court
• Probate matters: legal process administering the estate of a deceased person stays in state court

1. Is there complete diversity? AND…

What is complete diversity?

• There is no diversity jurisdiction if any π is a citizen of the same state as any ∆ (i.e., all πs must be
citizens of a different state than all ∆s)
• This requirement is relaxed for mass class action cases by the Multiparty Act and the Class Action
Fairness Act

How you determine citizenship? (determined at time of initiation; Grupo Dataflux)

• People
o To be a citizen of a State, one must be
Citizen of U.S.; and
Domiciliary of the state
o Domiciliary is:
Person’s place of his true, fixed, and permanent home and principal establishment;
AND
He has the intent to remain indefinitely
• Subjective intent: Basically no definite intent to leave to make home elsewhere
• To return to here whenever he leaves for a while
• Mere residence is not sufficient
• Until you acquire a new domicile you are still a domiciliary of the one you were
before
o Mas v. Perry – ∆ was diverse bc she grew up in Miss and that’s where her permanent address is
and she only was in Louisiana bc she went to school there; she had no intent to remain.
o ConnectU v. Zuckerberg – ∆ grew up in NY and planned to return to college and continue to use
his parents NY address as a permanent. Thus, he was domiciled in NY even though he had his
company in CA and was there for a while.

• Corporations
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 Civil Procedure I, Fall 2014 (P. Lewton)
SUBJECT MATTER JURISDICTION (2 ND OF 3 REQUIREMENTS)

o A corporation is a citizen of:

The state in which it is incorporated; or
The state in which it has its one, principal place of business (PPB)
• Principal place of business is the place where a corporation’s officers direct,
control, and coordinate the corporation’s activities
• Normally where the headquarters are located provided that is where all the
decisions are made (nerve center), not just where it holds board meetings
o Ex. A casino company incorporated in NV may own one casino in NV,
but their corporate offices are in CA. Its PPB is CA.

• Unincorporated associations (Partnerships)

o Courts look at the citizenship of each one of the association’s members

• Aliens
o Citizen of the state in which alien is domiciled
o H.K. Huilin International Trade: no jurisdiction over suits between a nonresident alien on one
side and resident aliens and U.S. citizens on the other

• “Manufactured”
o No diversity action where diversity is “made up” (Kramer v. Caribbean Mills)

• Nominal parties
o Nominal parties are disregarded in assessing diversity of citizenship (Rose v. Giamatti—Rose,
OH, sued Giamatti, NY, but he also added the MLB and the Reds to stay in state. Court
concluded that the real controversy here was btw Rose and Giamatti and the other parties
were nominal).

2. Is the amount-in-controversy requirement satisfied?

Sum must exceed the sum or value of $75,000, exclusive of interest and costs, and be made in good faith

Aggregating Claims:
• 1π v. 1∆ → aggregate all claims to satisfy requirement, even if unrelated
• 1π v. 2+∆s → no aggregation; claims treated separately (neither, one, multiple, or all may satisfy
requirement)
• 2+πs v. 1∆ → (separate and distinct claims) → no aggregation; one must be greater (Exxon)
• 2+πs v. 1∆ → (seeking to enforce a single title or right, in which πs have common and undivided
interests) → aggregate all claims
o An identifying trait of common and undivided interests is that if one π were to fail to collect his
share, the remaining πs would collect a larger share
• Class Action → aggregate of all claims > $5M OR class must consist of > 100 members

Considerations:
• Look at the value to the π
• Look at the view point of the person trying to invoke diversity jurisdiction
• Look to the object sought to be accomplished by the π’s complaint

* Courts take $75k requirement seriously (Freeland v. Liberty Mutual—shy by 1 penny; denied)

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 Civil Procedure I, Fall 2014 (P. Lewton)
SUBJECT MATTER JURISDICTION (2 ND OF 3 REQUIREMENTS)

Continue for Option #2, Federal Question Jurisdiction

Does the federal court have federal question jurisdiction?

28 U.S.C. § 1331 – “The district courts shall have [concurrent; states can hear these too] original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the U.S.”
Requirements:
1. Does the claim arise under the Constitution, laws, or treaties of the U.S.? and
2. Is the complaint well pleaded?
* NO amount-in-controversy requirement whatsoever.

1. Arise Under?
• Originally, very broad view under Article III, §2 / Osborn, but now (more narrow)…
• Cases consistently hold that § 1331 only applies if the π’s claim requires proof of federal law
2. Well pleaded?
• Mottley’s “well-pleaded complaint” rule: asks whether the π would have to raise the federal issue in a
complaint that includes the elements he needs to prove to establish his claim, and only those elements.
o I.e., the federal issue must be present necessarily in the original claim, not in an anticipated
defense and not in a counter-claim or answer
o Holmes’ “creation test” for determining when Mottley’s “well-pleaded complaint” rule is met: a
suit arises “under the law that creates the cause of action.” (American Well Works)
Exception: Smith v. Kansas City Title and Trust—πs could not prove their state law
claim without establishing a proposition of federal law: that the federal statute under
which the bonds were issued was unconstitutional under the U.S. Constitution.
(Contradicted in Moore, but Smith’s exception persists)

- -- --- OR --- -- -

28 U.S.C. § 1338 – Federal courts have exclusive jurisdiction over patents, trademarks, and copyrights

T.B. Harms Co. v. Eliscu – π sued ∆ for breach of contract regarding assignment of copyrights. This did not
have FQJ because it had to do with state contract law and not the copyright itself.

SUBJECT MATTER JUR. 11

 Civil Procedure I, Fall 2014 (P. Lewton)
SMJ - REMOVAL

28 U.S. Code § 1441 - Removal of civil actions

§ 1441(a): Any civil action brought in a State court of which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the defendants (only), to the district court of the United
States for the district and division embracing the place where such action is pending.
• Only the ∆ can remove; a π cannot remove on the basis of ∆’s counter-claim (Shamrock Oil)

§ 1441(b)(2): In DIVERSITY cases: if any of the ∆s are a citizen of the state in which the state action was brought,
the case cannot be removed
• A ∆ can still remove for federal question

§ 1441(c)(1): All claims are removed as one action, and (c)(2) then the district court can decide what stays and
what is remanded; ∆s to claims which stay in the district court are required to consent to the removal.

§ 1441(f): the federal court is not precluded from hearing the case simply because the state court lacked
jurisdiction over it

28 U.S. Code § 1446 - Procedure for removal of civil actions

§ 1446(b)(2)(a): All ∆s who have been properly joined and served must join in or consent to the removal of the
action.

Davis v. City of Shreveport Police Dept

28 U.S. Code § 1447 - Procedure after removal generally

§ 1447(c): If a case is removed erroneously, a federal court must remand it to the state court.

SMJ: REMOVAL 12
 Civil Procedure I, Fall 2014 (P. Lewton)
SMJ – JOINDER & SUPPLEMENTAL JURISDICTION

OVERVIEW: Is there SMJ for an added party/claim?

1. Do the rules of joinder allow the claim or party to be added? and
2. Is there supplemental jurisdiction over the new clim or party?
1. Is there constitutional power under Article III, §2, to hear the supplemental claim?
2. Is there a statutory grant of jurisdiction over the related claim?
3. Should it hear the related claim?

Brief History of Supplemental Jurisdiction:

Pendent Jurisdiction:
When the π, in her complaint,
appends a claim lacking an → → Congress confirms this merger by
independent basis for federal adopting a single term,
jurisdiction to a claim possessing such → → “Supplemental Jurisdiction,” which
These two begin to
basis (Notably: Gibbs) was codified under § 1367,
merge into a single
Ancillary Jurisdiction: → → providing SJ to claims/parties “that
doctrine via Aldinger,
When either a π or a ∆ injects a claim are so related to claims in the action
Kroger and Finley…
lacking an independent basis for → → w/ original J. that they form part of
federal jurisdiction by way of a the same case or controversy under
counterclaim, cross-claim, or 3rd- → → Article III.
party complaint (Notably: Moore v. NY
Cotton Exchange)

1. Do the rules of joinder allow the claim or party to be added?

Additional CLAIM:

Rule 18—Joinder of Claims

• 18(a) – Once a person has properly asserted a claim, counterclaim, crossclaim, or impleader he can join
as many claims as it wants
o Very broad—M.K. v. Tenet
o Don’t have to be related at all; no common transaction or occurrence requirement!

Rule 13—Counterclaim and Crossclaim

• 13(a) – Compulsory Counterclaims (assert it or lose it)
o Must arise out of the transaction or occurrence that is subject matter of claim; and
U.S. v. Heyward: there must be a logical relationship between the claim and
counterclaim; separate litigation would result in fragmentation of litigation and
multiplicity of suits contrary to the purpose of 13(a).
o Must not require adding another party over whom the court cannot acquire jurisdiction.
o ∆ must assert the counterclaim in the original action or lose it.
• 13(b) – Permissive Counterclaims
o Unrelated to original claim; court will almost certainly order separate trials for permissive
counterclaims—utilizing 42(b)
o Allows a ∆ to settle all his claims against his opponent without having to file a separate lawsuit.
o These mostly won’t have supplemental jurisdiction
• 13(g) – Crossclaims
o Must arise out of the transaction or occurrence that is subject matter of claim or counterclaim
o Crossclaim is a claim between two co-defendants brought together by 20(a)(2).
Again it must be a logical relationship – LASA v. Alexander
Cross claims are permissive not compulsory
SMJ: JOINDER & SUPPLEMENTAL JUR. 13
 Civil Procedure I, Fall 2014 (P. Lewton)
SMJ – JOINDER & SUPPLEMENTAL JURISDICTION

Can be used if you think he would be liable to you for some of the damages
• 13(h) – Joining Additional Parties
o Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim

Additional PARTY:

Rule 20—Permissive Joinder of Parties

• 20(a)(1) – Persons may join in one action as plaintiffs if:
o They assert any right to relief jointly, severally, or in the alternative with respect to or arising out
of the same transaction, occurrence, or series of transactions/occurrences; and
o Any question of law or fact common to all πs will arise in the action
• 20(a)(2) – Persons (and more) may be joined in one action as defendants if:
o Any right to relief is asserted against them jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions/occurrences; and
o Any question of law or fact common to all ∆s will arise in the action

Rule 19—Required Joinder of Parties

∆ admits liability but desires to share it with another party
• 19(a) – Person required to be joined if feasible (3 possible reasons)
o (1)(A) In that person’s absence, the court cannot accord complete relief to existing parties
o (1)(B)(i) Without that person, you impair the person’s ability to protect his interest
o (1)(B)(ii) You expose an existing party to a risk of multiple or inconsistent obligations
• 19(b) – Person required when Joinder is NOT Feasible (bc of SMJ or PJ)
o Court can proceed, dismiss the action or try to craft the judgment to provide appropriate relief
o Court has to balance
Extent to which the person or current parties would be prejudiced
Extent to which any prejudice could be lessened or avoided by
• Protective provisions in judgment, shaping the relief
Whether judgment w/o person would be adequate
Whether the P have an adequate remedy if action were dismissed
o Only dismiss actions if the party that can’t be joined is indispensable
Provident Tradesmens Bank & Trust v. Patterson

Rule 14—Impleader/3rd parties

∆ claims no liability and transfers it to another party who must indemnify ∆ if ∆ held liable
• 14(a) Gives a ∆ a limited right implead/bring in a party who is or may be liable to the ∆ (3rd party π) for
part of or the entire claim against it (assuming state law permits contribution)(Jeub v. BG Foods)
• 3rd party π only recovers from 3rd party ∆ if the 3rd party π loses the suit (Contribution; Too v. Kohl’s)
o But 3rd party π cannot indeminify 3rd party ∆ if both were at fault (Too v. Kohl’s)
• 14(a)(2): 3rd Party ∆:
o Must assert any defense against the 3rd party π under Rule 12
o Must assert any compulsory counterclaims under 13(a)
o May assert any permissive counterclaims under 13(b)
o May assert any crossclaims against other impleaders under 13(g)
o May assert against the π any defense that the 3rd party π has to the π’s claim
o May assert against the π any claim arising out of the transaction or occurrence that is the subject
matter of the π’s claim
• 14(a)(3): π can assert any claim against the 3rd Party ∆ as long as it arises out of the transaction or
occurrence that is the subject matter of the π’s original claim
• 14(a)(5): 3rd party ∆ may become a 4th party π and implead a 4th party ∆
SMJ: JOINDER & SUPPLEMENTAL JUR. 14
 Civil Procedure I, Fall 2014 (P. Lewton)
SMJ – JOINDER & SUPPLEMENTAL JURISDICTION

• 14(b): π can bring in a 3rd party when a claim is asserted against the π if a ∆ could do so under 14.

Rule 42 – Consolidation; Separate Trials

• 42(a) – Common question of law or fact? A court may join for hearing or trial any or all matters;
consolidate the actions; or issue any other orders to avoid unnecessary cost or delay.
• 42(b) – Court can order a separate trial on any issue/claim for convenience, to avoid prejudice, or to
expedite or economize (cited in LASA v. Alexander)

Rule 21 – Misjoinder/Nonjoinder
• Misjoinder is not a ground for dismissing an action.
• At any time the court can add or drop a party or sever any claim against a party (instead of dismissing).

2. Is there supplemental jurisdiction over the new claim or party?

1. Is there constitutional power under Article III, §2, to hear the supplemental claim? And…
1. Did the π bring a proper federal question claim or diversity claim, so that the federal court has “original
jurisdiction”? and
2. Does the related claim arise from the same nucleus of operative facts? (Gibbs)

2. Is there a statutory grant of jurisdiction over the related claim? And…

• Most likely—§ 1367(a) broadly grants statutory authority to hear related state law claims that meet the
Gibbs constitutional test above (Does the related claim arise from the same nucleus of operative facts?).

• Exceptions—§ 1367(b): In actions based solely on diversity jurisdiction, “the district courts shall not have
supplemental jurisdiction under subsection (a) over claims by πs against persons made parties under
Rule 14, 19, 20, or 24 of the FRCP, or over claims by persons proposed to be joined as πs under Rule 19 of
such rules, . . . when exercising SJ over such claims would be inconsistent with the jurisdictional
requirements of section 1332.”
o Exxon Mobile: “[W]here the other elements of jurisdiction are present and at least one named π in
the action satisfies the amount-in-controversy requirement, § 1367 does authorize supplemental
jurisdiction over the claims of other πs in the same Article III case or controversy, even if those
claims are for less than the jurisdictional amount specified in the statute setting forth the
requirements for diversity jurisdiction.”

3. Should it hear the related claim?

§ 1367(c): The district courts may decline to exercise SJ over a claim under subsection (a) if:
1. the claim raises a novel or complex issue of State law,
2. the claim substantially predominates over the claim(s) over which the court has original
jurisdiction,
3. the district court has dismissed all claims over which it has original jurisdiction, or
4. in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

SMJ: JOINDER & SUPPLEMENTAL JUR. 15

 Civil Procedure I, Fall 2014 (P. Lewton)
ATTACKING SUBJECT MATTER JURISDICTION

Direct Attack on court’s lack of SMJ

• When? Lack of SMJ can be asserted at any time by any interested party, either in the answer, or in the form
of a suggestion to the court prior to final judgment, or on appeal, and also may be raised by the court sua
sponte.
• You cannot consent to SMJ, this is for the court to determine
• Beware of res judicata (see collateral attacks below)
• Ruhrgas Ag v. Marathon – lower court’s inquiry into PJ can precede that of SMJ (since they’re both required)
• United States v. United Mine Workers – you cannot raise a lack of SMJ as a defense to the contempt of court
charges. The court order must be obeyed until it is set aside
• Grupo Dataflux v. Atlas Global – citizenships of the parties matter at the time when the complaint was filed.
Court held there was lack of SMJ bc when the complaint was filed the partnership had 2 Mexican citizens on
their side, and right after the complaint these partners left. Thus, the entire trial was done with complete
diversity, but it still lacked diversity jurisdiction bc it was filed when there wasn’t complete diversity
jurisdiction

Collateral Attack on Judgment for Lack of SMJ

• Collateral attack is an attack in a different action attacking a judgment from another action
o Durfee v. Duke – General rule is that a judgment is entitled to full faith and credit—even as to
questions of jurisdiction—when the 2nd court’s inquiry discloses that those questions have been fully
and fairly litigated and finally decided in the court which rendered the original judgment
• You normally can’t bring a collateral attack for lack of SMJ bc of res judicata; however, there are certain times
when this is OK
o Kalb v. Feuerstein, US Catholic Conference v. Abortion Rights Mobilization

ATTACKING SMJ 16
 Civil Procedure I, Fall 2014 (P. Lewton)
VENUE (3 RD OF 3)

Venue:

28 U.S.C. §1391. Venue generally

• § 1391(b)—Venue in general: A civil action may be brought in
o (1) A judicial district where any ∆ resides, if all ∆s reside in same state
Resides is same as domicile for SMJ
o (2) A judicial district which substantial part of the events or omissions giving rise to the claim
occurred (Bates v. C&S Adjusters—Venue is proper under (b)(2) wherever a substantial part of
events that gave rise to the claim occurred, regardless of whether the ∆ entered that venue).
o (3) Judicial district in which any ∆ is subject to PJ at the time the action is commenced, if there
is no district in which the action may otherwise be brought
Fallback provision

Where does a business/entity reside for purposes of 1391(b)(1)?

• § 1391(c)(2) and (d) – Corporations (and other entities) reside in the district, and only that district, in
which you could get it for PJ if that district were treated as its own state
o Applies to ∆s, not πs
o Residence of unincorporated associations, for venue purposes, is determined by looking to the
residence of the association itself rather than that of its individual members (so they’re treated
the same as a corporation)

• Least restrictive of the 3 requirements (PJ, SMJ and V), but you still need to have all three
• Venue can be waived/consented to for failure to object to it (12(h)(1))
• Some statutes or even contracts might regulate places for venue (forum selection clause)

Continue for Transfer and Forum Non Conveniens

VENUE 17
 Civil Procedure I, Fall 2014 (P. Lewton)
TRANSFER OF VENUE & FORUM NON CONVENIENS

Transfer:
28 U.S.C. §1404—Change of venue
• §1404(a) – A case can be transferred to any other district where it may have been brought by the π; if
the π could not have properly served the ∆ in the transferee district, then transfer is not proper under
the statute (Hoffman v. Blaski).
• In diversity cases, the law of the transferor forum applies even after the transfer of action (Van Dusen)
o Ferens v. John Deere: π couldn’t file a tort claim in PA because the statute of limitatios had
expired, so π filed in MS and then moved to transfer the tort from MS to PA along with MS’ 6-year
statute of limitations. Allowed.

28 U.S.C. §1406—Cure or waiver of defects

• §1406(a) – a court can transfer a case to a proper venue if it is wrong or dismiss it, but either way it must
be done in the interests of justice

Forum Non Conveniens:

Generally:
• A court may dismiss a claim without prejudice that was properly brought (PJ, SMJ and V) for lack of
convenience, but normally only if there exists a more convenient forum elsewhere
o Exception: Islamic Republic of Iran v. Pahlavi—there was not another forum known, but the case was
still dismissed (probably because of foreign policy, etc.)
• Court can respond to ∆’s FNC plea before looking at any other objections (PJ, SMJ)
• Often courts will only dismiss if the ∆ agrees to waive a defense (waive statute of limitations, PJ, etc.) in the
new forum
Determining Convenience (Gulf Oil v. Gilbert):
• Private interests of the litigants
• Ease of accessing source of proof (evidence/witnesses)
• Availability for compulsory process for attendance of the unwilling
• Possibility of view of premises or location
• All other practical problems preventing an easy, expeditious, and inexpensive case
• Factors of public interest:
o Administrative difficulties for costs piling up
o Jury duty for people who have no relation to the litigation
o Where the affair of the trial affects many people and those people won’t be able to learn of the trial bc
its being litigated so far from them
o Where there is a particular local interest to have trial in certain area
o Where state law is being used, it’s usually nice to have trial in that state
Cases:
• Piper Aircraft Co v. Reyno – Plane crash victims in Scotland sued in California
o Court decided to dismiss for forum non conveniens using the Gilbert rules
o Private interests that warrant dismissal for forum non conveniens
π’s choice of forum was not merely for convenience since all πs were foreign
Most if not all witnesses and evidence are in Great Britain which is closer to Scotland
It would be difficult to implead 3rd parties in the U.S. instead of Scotland
Finally Scotland has a greater interest in litigation than U.S.
o Public policy interests favored trial in Scotland because the ∆s would have had two different sets of
law applied to them
• WIWA v. Royal Dutch Petroleum – The greater the π’s ties to the π’s chosen forum, the more likely it is that
the π would be inconvenienced by a requirement to bring the claim in a foreign jurisdiction

VENUE 18
 Civil Procedure I, Fall 2014 (P. Lewton)
PLEADING

Modern Pleading: (FR 2, 3, 7, 8, 10, 11, 12(e), 84)

Rule 8—General Rules of Pleading (3 requirements)

• 8(a)(1) – A short and plain statement of the grounds for the court’s jurisdiction;
• 8(a)(2) – A short and plain statement of the claim showing that the pleader is entitled to relief; and
o Facts, not legal conclusion (Ashcroft v. Iqbal)
o Conley v. Gibson: no dismissal unless it appears beyond doubt that the π can prove no set of facts in
support of his claim which would entitle him to relief
o Bell Atlantic v. Twombly: A complaint must allege facts with sufficient specificity to state a claim for
relief that is plausible, not merely conceivable, on its face.
o Ashcroft v. Iqbal: Iqbal’s complaint simply recited the elements of his claim, and was too conclusory
to be assumed true; He needed to provide facts plausibly showing that Ashcroft purposefully adopted
the policy because of race, religion, or national origin.
• 8(a)(3) – A demand for the relief sought

Form 11 (Complaint for Negligence) includes: Jurisdiction, time, place, cause of action, types of damages, amount
of damages, and the total amount of damages

Burden of pleading:
o Generally follows the burden of proof (π has burden; preponderance of the evidence; 51%) and the π
will have to plead
o ∆ will have to plead any affirmative defenses
o “Ordinary Default Rule” is that the party seeking relief, and thus the one who must raise the issue in
its pleading, must also carry the burden of proof.

Pleading Special Matters: (FR 9)

Rule 9—Pleading Special Matters

• In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or
mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
• Denny v. Carey
o Rule 9(b) is satisfied when there is sufficient identification of the circumstances constituting fraud
that the ∆ can prepare an adequate answer to the allegations.
o Rule 9(b) does not insulate professionals from claims of fraud where a complaint alleges the
fraudulent acts with particularity. This is especially true where many of the matters are peculiarly
within the knowledge of ∆s. Once π has satisfied the minimum burden of 9(b), π should be allowed to
flesh out the allegations in the complaint through discovery.

Private Securities Litigation Reform Act (PSLRA)—a heightened pleading requirement

• The complaint must specify each statement alleged to have been misleading and give the reason or reasons
why each is misleading
• If an allegation is made on “information and belief,” all facts on which that belief is formed must be stated
with particularity
• Facts giving rise to a “strong inference” that the ∆ acted with scienter must be stated with particularity
o Tellabs v. Makor Issues & Rights: To qualify as “strong,” a reasonable person would deem the
inference of scienter cogent and at least as compelling as any opposing inference one could draw
from the facts alleged.

PLEADING 19
 Civil Procedure I, Fall 2014 (P. Lewton)
PLEADING

Responding to the complaint – Motions: (FR 12)

Rule 12—Defenses and Objections

o 12(a): A ∆ must serve an answer
Gives most ∆s 21 calendar days from date of service to respond either by a motion pursuant to Rule
12 or by answering the complaint
Time may be extended by court order under 6(b)
o 12(b): Motions to dismiss:
1) Lack of SMJ
2) Lack of PJ
3) Improper venue
4) Insufficient process
5) Insufficient service of process
6) Failure to state a claim upon which relief can be granted
1. The purpose is that the claim might be legally insufficient or factually insufficient
2. American Nurses’ Association: complaint contained general allegations of intentional wage
discrimination as well as more specific allegations of disparate wage discrimination.
a. If a complaint’s allegations are ambiguous and one reading states a possible claim,
the claim cannot be dismissed under 12(b)(6). The ∆ can only move for the court
to order the π to allege a more definite statement of the claim.
3. If the complaint is dismissed most judges will give you one chance to amend it
a. If it’s dismissed with prejudice you can no longer bring it again (res judicata)
7) Failure to join a party under Rule 19
o 12(c)-(e): More methods; pg. 40 of supplement
o 12(f): Motion to Strike—The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not
allowed, w/in 21 days after being served with the pleading.
• To strike material as scandalous it must be obviously false and unrelated to the subject
matter of the action.
• Immaterial matter consists of statements and averments bearing no essential or important
relationship to the claim for relief or the defenses being pled.
• Motions to strike are rarely granted and normally granted if the material was put in solely to
harass the ∆

Responding to the complaint – Answer: (FR 8)

Clark: “When you get served, think through all of your potential affirmative defenses. If the ∆ files a counterclaim in
his answer, then the π is required to reply, and the π would have to include his own affirmative defenses.

Rule 8(b)—Defenses; Admissions and Denials

• 8(b)(1)(B): ∆ must admit, deny, or plead insufficient information in response to each allegation
o General Denial – deny everything in the complaint
This is to be used cautiously and in good faith otherwise a judge may deem ∆ to have
admitted π’s specific averments.
o Specific Denial – deny all allegations of a particular paragraph and each and every claim
o Improper Denials
Conjunctive Denial – deny allegations using the exact same words as complaint
Pregnant Denial – say things like “we do not owe $10”
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 Civil Procedure I, Fall 2014 (P. Lewton)
PLEADING

• 8(b)(5) – Lacking knowledge or information to admit or deny anything in a claim is deemed a denial
• 8(b)(6) – Anything that you don’t deny or admit is deemed to be admitted, except for one that relates to the
amount of damages
o To avoid unintended admission, ∆s often add an all-inclusive paragraph denying everything unless
otherwise admitted.

Rule 8(c)—Affirmative Defenses

• A ∆ must affirmatively state any avoidance or affirmative defense if he wants to use it/them at trial
o If you do not plead or state an affirmative defense you lose it to avoid “unfair surprise”—π has to
have a chance to refute it and not be surprised (Ingraham v. U.S.)
• 8(c) lists 19 examples of affirmative defenses (pg. 29)
o Other affirmative defenses are normally:
Something that will be contested at trial or ∆ has to prove certain facts to get the defense
Something that relies on facts particularly within the ∆’s knowledge

Amendments to pleadings: (FR 15)

Rule 15—Amended and Supplemental Pleadings

• Purpose: We want each claim to be decided on the merits rather than on procedural technicalities, and that
pleadings no longer carry the burden of proving given facts, which now belongs to the discovery process
• 15(a) – Amendments Before Trial
o 15(a) gives all parties the opportunity to amend once as a matter of course, that is, of right, without
having to make a motion and have it granted by the judge.
o 15(a)(1)(A): a ∆ will have 21 days after serving an answer to amend it without leave of court
o 15(a)(1)(B): the party (typically the π) may amend within 21 days after receiving an answer or a pre-
answer motion under Rule 12.
o 15(a)(2): In all other cases, a party may amend with opposing party’s written consent or the court’s
leave or when justice so requires.
Normally only deny when there was already a chance to amend, they are asserting legally
insufficient claims, it will prejudice, or is done in bad faith
• Beeck v. Aquaslide – allowed amendment in good faith
• 15(b) – Amendments During and After trial
o 15(b)(2): You can expressly or implicitly consent to issues being tried that are not in the pleadings if
you don’t object under 15(b)(1)… so make sure you object!
• 15(c) – Relation Back of Amendments—Under 15(c), when an amendment is allowed, the amendment
“relates back”/is usually treated as though it were filed on the date of the original pleading if:
o 15(c)(1)(A): The statue of limitations governing the cause of action allows the relation back;
o 15(c)(1)(B): The claim or defense in the amending pleading arose from the same transaction or
occurrence as that set forth in the original pleading; or
o 15(c)(1)(C): When a new party is joined, and it is not “unfair” for the claim against that party to be
treated as if it were raised on the date that the original pleading was filed (Krupski v. Costa Crociere)
The new party had notice of the action either within the statute of limitations or 120 days
after the complaint was filed
The new party knew or should have known that the action would have been brought against
it, but for a mistake concerning the proper party’s identity
• Note: deliberately choosing to sue one party over another for tactical reasons,
however, is NOT the kind of mistake that the rule was enacted to cover.

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 Civil Procedure I, Fall 2014 (P. Lewton)
PLEADING

Ensuring integrity in pleading: (FR 11)

Rule 11 – Signed Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
• 11(a) – Signature
o Every pleading, written motion, and other paper must be signed by at least one attorney of record in
the attorney's name—or by a party personally if the party is unrepresented
The court must strike an unsigned paper unless the omission is promptly corrected after
being called to the attorney's or party's attention.
o The paper must state the signer's address, e-mail address, and telephone number
o Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied
by an affidavit
• 11(b) – Representations to the Court – Certified after an inquiry reasonable under the circumstances:
o No improper purposes (harass, cause unnecessary delay, or needlessly increase the cost of litigation)
o No frivolous arguments
o Facts have evidentiary support
o Denials warranted on the evidence or, if specifically so identified, are reasonably based on belief or a
lack of information.
• 11(c) – Sanctions
o (1) If, after notice and a reasonable opportunity to respond, the court determines that 11(b) has been
violated, the court may impose an appropriate sanction on any attorney, law firm, or party that
violated the rule or is responsible for the violation.
o (2) Before you file a motion for sanctions (served under rule 5 and separately from any other
motion), you must give your opponent a 21-day “safe harbor” period to try to correct the issue
Hadges v. Yonkers Racing Corp
• No sanctions on π because π was not afforded “safe harbor” period
• No sanctions on attorney because:
o Showed evidentiary support for his incorrect statements
o An attorney is entitled to rely on the objectively reasonable representations of
the client
o He didn’t have to mention the state action because it wasn’t a decision on the
merits and there was no advantage for not mentioning it
o Also, he didn’t get the “safe harbor” period
o (3) On the Court’s Initative—On its own, the court may order an attorney, law firm, or party to show
cause why conduct specifically described in the order has not violated 11(b).
o Business Guides v. Chromatic Communications- Any party who signs a pleading, motion, or other
paper has an affirmative duty to conduct a reasonable inquiry into the facts and the law before filing

Surowitz v. Hilton Hotels:

• Rule 23.1 (pg. 61)—Derivative Actions
o (a) Prerequisites – the derivative action may not be maintained if it appears that the π does not
fairly and adequately represent the interests of shareholders or members who are similarly
situated in enforcing the right of the corporation or associations
o (b) Pleading Requirements – the complaint must be verified, etc.
Verification of a complaint under 23.1(b) is not required if the party has been advised by
a competent individual that the allegations contained in the complaint are true.
Created to discourage suits where a complaint is without merit and filed with the
expectation that it would be settled out of court to avoid the expenses of litigation. It is
obvious from the affidavits that π intended no harm to ∆ nor was there any sign of bad
faith by π or her attorney.

Well, looks like you’re done. Go drink a beer.

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