Kwok Tse

Civ Pro Issue Sheet

FQ: The issue is whether there is FQ. FQ is a case that arises under federal law. The claim msut arises under federal law. It’s not enough that the complaint mention federal law, it has to violate a federal law. A significant case is the Motley case in which the Π stated that the railroad breach K which is not federal law and that the new Fed law does not apply to them. This would be considered an anticipation of defense and needs to be rebutted in advance. The Motley’s never argued for a violation of federal law, there issues never arose from a federal question even though they had federal content in there.

  • To determine if FQ exit: see if the Π is enforcing a federal right. If Π is enot enforcing a right under the federal law then it’s not FQ. If it violates your rights under Federal law then you have a FQ.
  • Creation Test: The Federal law is embedded in the state claim that it could be considered a Federal Question
  • Centrality Test: So substantial that it was necessary for federal court to resolve this.

Diversity: Requires every Π to be from a different state from every Δ.

  • Under Strawbridge v Curtis, we have complete diversity. Under 28 USC 1332 as a basis of complete diversity. Co parties can be from the same state in a lawsuit.
  • Domicile: Physical presence coupled with intent to remain indefinitely
  • Domiciled is determined at the tie the law suit is filed.
  • Test Domicile for everybody
  • Counter Domicile as well
  • Corporation Domcile: SOI and PPB (HQ) Hertz Test
  • LLC: each individual Domicile

Amount in Controversy: Diversity jurisdiction also requires that eh amount in controversy exceed $75k. See if they all met the amount in controversy.

Personal Jurisdiction: the next issue I will address is PJ. First, since the suit has been removed to federal court, the federal rules regarding raising Personal Jurisdiction will apply. Thus so longas the Δ IN THEIR FRIST RESPONSE IN FEDERAL COURT TO Π COMPLAINT’S RAISE THEIR PJ OBJECTIONS Rule 12(b)(2), they will not be waived if joined with other objection, such as ______.

Long Arm Statute: Federal court will apply the Long Arm statute of the state in which it is sitting; in this case, X state Long Arm statute allows its courts to assert PJ to the full extent permitted under the US constitution. Thus the only test used to determine whether there is PJ In X state is whether such an assertion complies with the DUE PROCESS CLAUSE of the federal constitution.

Personal Jurisdiction IN PERSONAM CONTACT: PJ can be found under: Δ consent to it or is domiciled in the state, physical presence in that state, actually handing a notice in that state to Δ. Neither is true for any of the Δ unless the Δ is domicile in that forum state. Therefore we will go and see if we can get PJ through minimum contacts from the Δ in the forum state.

Minimum contract (MC): is another way that PJ can be established over an out of state Δ. the MC test requires that the Δ has contracts with the forum state, that at least one of those contracts give rise to the claim, and that the contract which give rise to the claims is aas a result of the Δ purposely availing themselves to that state.

  • General: unrelated claims but substantial contact
  • SOI/ PPB
  • Domicile
  • If contact was so substantial
  • Good year: 2 boys kills in paris by good year. Brings suit to NC against Good eyar which multiple foreign parties were involved. Good year foreign does not manufacture design and the tire that blew up did not arise out fo the claim (it was not he same tire that was manufacture y Good year foreign)
  • The claim was a claim arising out of GJ due to claims so substantial
  • However courts rules that ~10,000 tires was not enough for GJ.
  • Substantial is brick and mortar (factories plants, HQ)
  • Specific: related to the claims
  • Purposeful a availment
  • Unilateral activity does not count

Reasonableness Test: the second prong for minimumcontracts, is if it’s reasonable and fair to have pj over the Δ.

  • The Π has an interest in the case being heard in X state because the accident occurred there, the documents are there, the medical records etc.
  • The state interest is ensuring to protects it’s citizens from non residents and to protect public safety.
  • The Δ inconvenience would be high/low (distance/ legal cost/ cost of Δ resources)

Minimum Contacts Distributor/Inc Stream of commerce (SOC): To see if the manufacture/X purposefully availed themselves the best way to analyze this issue is to refer to the McIntyre case which stated that because McIntyre itself had not targeted New Jersey, thus had not purposefully availed itself to doing business in that state.

  • Ways to purposefully avail for Δ goods reaching the forum state
  • Sending goods into a SOC at least in substantial quantities constitutes “purposeful availment “whether or not the original makers know that the goods will be sold in a particular state. Rationale: makers foresees and benefits from such sales in other states whether it distributes them directly or indirectly profits from the fact that another entity conveniently does so in place.
  • If the X develops relationship with the US distributor and encourages sales- will likely be PJ for claims arising from those sales in the state where it directs it’s goods where US distributor is located
  • Also seems likely that a foreign manufactures that engages in the type of conduct describes in Asahi is intended to promote its goods in the state will be subject to specific PJ for claims that arises out of sales (including indirect sales in state)
  • Case: Asahi
  • O’Conner Test: Needs concrete evidence of reaching out such as advertising, retail store, HQ to specifically “TARGET THAT STATE”
  • Courts were divided on this issue, however the reasonableness test challenged the PJ issue and ultimately ruled that CA did not have PJ over Asahi due to the No state interest and Δ inconvenience along with the Π not being from that state.

In Rem Jurisdiction: Meets minimum contract. Has jurisdiction over a person by attaching a property (attach property to have defendant come to the forum state to defend a claim). If a person owns a property and not in the forum state and an injury occurs on the property (plaintiff can use quasi based on Δ maintaining the property even though not domiciled in that state and unrelated to the claim.

  • Minimum contact would be the property owned in the forum state
  • The claims does nto arise from the property
  • Δ would have to purposeful avail themselves by having a hosue in the forum state
  • Property must be attached at the outset
  • Claim has to be so substantial to have a claim of General Jurisdiction

If there was an objection to Venue: Objection has to be raised in the 1st response to the Π complaint after it was removed.

Venue tells us where the court system a case can be brought.

  • Rule 1931: Π chooses venue.
  • With 1 Δ: Δ resides in one particular district which he will be subject to venue.
  • Π can lay venue in any district where all Δ reside.
  • Rule 1391b (B)2: If two Δ do no have the same place then Venue where any of the substantial event occurs.
  • Any judicial district in which any Δ is subject to the court’s
  • Rule 1931(c)(3)Δ not resident in US may be sued in any judicial District court

Change of venue: Transfers has to be from one court to another in the same judicial system Fed Fed

  • 1404a and 1406a both the transferee must be a proper venue and have PJ over the Δ to be transferred.
  • 1404a is when the venue is proper and you transfer to another proper venue.
  • Based on convenience and interest of justice
  • If there is no error of venue, there still may be a transfer because it may make more sense for it to be tried somewhere else: depends on the contact.
  • Only a transfer to federal district and cannot transfer to state
  • Can be brought by either Π/Δ.
  • 1406a: improper venue can be raised by Π/Δ
  • If improper, court will dismiss/ or change venue based on the interest of justice. Case may be transfers in which it could have been brought
  • Forum non convenience: gives court option to dismiss the lawsuit and have Π start a new trial.
  • Can’t transfer because court does not have the right to transfer it.
  • New trial is based on condition that Π agrees not to raise any new objection in the forum court to hear the case.
  • Dismissing the court in the US on condition that Δ does not raise objection (new issue) in forum court.
  • Dismiss because other judicial forum must be an adequate forum. Adequate only means that they will receive “a day in court,” and does not mean they will get the same amount of money damages.

Testing eachjoinder parties and claims

1. Type of claim/party: Does it relate to the same T/O

2. Does the claim/party invoke SMJ for fed ct.: (FQ, Diversity (citizen/amt in controversy)

  • if not go sees if there is supplemental Jurisdiction.
  • If the claim has FQ, or Diversity don’t test for Supplemental Jurisdiction.

1367(a): Gibbs test of common nucleus: T/O always meets Gibbs Test.

  • Compulsory counter claims/cross claims. Rule 20 and Rule 14
  • Permissive counterclaim will not meet this test
  • FQ DOES NOT NEED TO TEST 1367(b) IF IT METS 1367(a) already!!

1367(b): Test to see if 1367(b) will take away supplemental jurisdiction in a diversity case only!!

  • ONLY FOR DIVERSITY CASES
  • If it deals with diversity case and the claim or party is brought by the Π, then there is NO SUPPLEMENTAL JURISDICTION.

Rule 18: Joinder of Parties.

Rule 18: Π may join any claim she has (does not have to be related and does not have to be raised from the same T/O. With every claim, you have to see if it invokes SMJ (FQ, Div, or Supp Jurisdiction)

Note: Just because Rule 18 will allow any claim to be brought if it meets the requirement of SMJ, does not mean that they will ALL be heard. There has to be SMJ before a new claim is permitted.

  • Rule 42(b) courts can allow separate trial for claims to not confuse the jury. Court may dismiss the claims due to it being not relevant to the issue.

Rule 14 IMPLEADER: Δ can join someone called 3rd party Δ due to the 3rd party may be partially liable for the Δ claim.

  • Contribution: Δ obtain a judgment that the third party Δ is liable to pay the main defendant part of the damages she is ordered to pay the Π. Shared negligence of liability
  • Indemnification: obtain judgment that the third party should cover “all” of the liability. Does not dissolve liability of Δ, but says that the 3rd party should still pay because they are in the cause of hard. Δ will first pay the Π and then collect the money from the third party Δ.
  • 14(a)(2)(d): 3rd party Δ if they have a claim that relates to the same T/O against original Π can assert a claim against Π.
  • 14(a)(3): Π can assert a claim on third party Δ if the claim arises from the same T/O.

Joining Claims: Δ claims against opposing party; against someone who sues you (file into your answer)

Rule 13(a) compulsory counter-claim: arises from same T/O as the Π claim (must be raised 1st response)

  • Must be asserted in the pending claim otherwise it will be waived
  • Counterclaims are a part of the Δ answer
  • Has to be related from the same T/O

Rule 13(b) Permissive: unrelated claim. MAY be asserted but does nto have to. If asserted, can be brought up in a separate case.

Rule 13(g): Cross-claim against co-parties (Δ against another Δ) after you brings that defendant in by rule 14.

  • MUST arise from the same T/O as the underlying case (Δ may assert this claim but does not have to)
  • No such thing as a compulsory cross-claim