Mama Bear = rules (digested and organized)

Baby Bear = one page, issue spotting outline. Questions to ask?

DUE PROCESS

5th Amendment

14th Amendment

Right to Counsel

I.Matthews vs. Eldrigde

  1. Rule elaboration:
  2. Primarily in the administrative realm – does it apply to other situations well?
  3. Question: how does the court generally rule given the facts?
  4. At the end of the day, it’s about “what feels like th right thing to do” in defining due process

II.Habeus Corpus

III.Capital Punishment

IV.Writ of Certoriari (Hamdi) – accepting case

  1. Cases: Lassiter, Hamdi

Notice and opprortunity

  1. Rule 4 Biggest thing. Familiarize yourself with the rule
  2. 4(c)(1) What documents must be served
  3. 4(a) Contents of the summons
  4. 4(d) – waive the service of summons. Instead you send by first class mail and D needs to sign and return waiver form. Saves money, but the form must be returned.
  5. 4(e)-(j) HOW papers must be served
  6. Burnham
  7. 4(m) WHEN they must be served
  8. 4(c)(2) WHO must serve them
  9. 4(d) How the requirements of service may be waived
  10. Mullane test
  11. Notice that is reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
  12. Must convey sufficient info to notify the party of how and by when it should respond and must allow reasonable time to appear.
  13. Means of giving notice must be such as one desirous of actually informing the party might reasonably adopt to achieve actual notice.
  14. The most reasonable means available is all that is necessary (Greene v. Lindsay – notice should have been mailed not posted; Jones v. Flowers – mail was not enough notice)
  15. Notice via publication: usually no unless lots of Ds and you don’t know D’s addresses.
  16. Technicality: Actual notice is not enough. You need to follow the process.
  17. How it ties to Due Process – fairness. Why is there a strict process for notice – Midcontinent Woods. Having process overcomes being right.
  18. Greene v. Lindsay, Flowers, Mullane, Midcontinent Woods, Khassogi

Personal Jurisdiction – In Personam

General Rule: Gives the court authority to bind a party personally – must have long arm statute.

In Fed Cts, Jx over the D is proper where the D could be subjected to the Jx of courts of the state where the federal district court is located.

  1. Pertains to the authority of a court to render a decision that will bind the parties before it.
  2. Limits state power

Federal?

2.4(k)(1)(A)?

  1. Yes, Then you need to figure out if court has P Jx over D by regular process: go to Long Arm Statute,
  2. No, then 4(k) exceptions
  3. 100 mile rule
  4. Is the party one that was joined under Rule 14 or 19 and served within a judicial district not more than 100 mile s from the place where the summons issues?
  5. Authorized by Federal statutory provision ? then 4k1B
  6. Alien provision? 4k2, minimum contacts

3.Procedural issue: Possible Waiver?

  1. If D has wavied P Jx by not challenging in initial response, then PJx is appropriate.

4.Long Arm Statue: Need both constitutional Jurisdiction and Long Arm statute.

  1. If RI/CA, mirrors the constitution, so go directly to min contacts
  2. Enumerated Act, then do statutory analysis
  3. If claim falls into long arm category then go Min Contacts. Else, no PJx.
  4. If there is no state long arm, then you go into whether or not it meets Due Process
  5. 5th amendment: Federal court
  6. 14th amendment: State court

5.Constitutional Analysis

  1. In-state service. Served while in the state? (Burnham) – then yes
  2. Voluntary appearance – waives PJx challenge
  3. Exceptions to PJx: if no traditional basis for PJx is present, does an exception apply?
  4. Consent
  5. Forum Selection Clause (Carnival Cruise Lines v. Shute). Generally enforeceable, and only if it applies to this case.
  6. State Domestication Statute (corporate registrations, non-resident motorist statutes)
  7. If D knew that these type of actions would mean consent, then it is valid
  8. If D not aware of the consent by doing these actions, then consent may be more suspect.
  9. Status

General Rule: will need to satisfy i and then ii to get Jx

  1. Minimum contacts (first part of S. Jx test) (Int’l Shoe co v. Washington Test)
  2. Min contacts
  3. Number of contacts
  4. Nature of contacts
  5. If activity is continuous
  6. If activity is systematic
  7. Purposeful availment [S1](Hanson v. Denckla, 1958)
  8. Taking advantage of the legal protections and privileges of the state
  9. D must have made a deliberate choice to relate to the state in some meaningful way before she can be made to bear the burden of defending there. Unilateral contacts (P’s contacts with forum) will not do.
  10. Ex: advertising there, doing business there.
  11. Claim arising from contacts with forum and state
  12. Where did the claim come from?
  1. Foreseeable that he would be hailed into court?
  2. Stream of Commerce
  3. Awareness vs. specific intent to place into stream
  4. O’Connor: mere placement of product into the stream insufficient for Min Contacts. You need specific intent
  5. Calder v. Jones: Calder Effects test: intentionally targeting wrongful conduct towards a forum resident will support an assertion of jurisdiction in the victim’s state of residence. (Calder v. Jones, LA star Tabloid case)
  6. Brennan: placement into stream with awareness of market in forum state is sufficient for min contacts
  1. Fairness balancing test – (second and last part of S. Jx test) White and O’Connor – VW, Asahi
  2. Burden to D (traveling from state to state is not really an issue; it’s more like traveling from country to other state)
  3. Social policies, big things
  4. Foreign law
  5. Interest of Forum State in adjudicating the dispute
  6. P’s interest in convenient and effective relief
  7. Interstate Judicial system’s interest in obtaining the most efficient resolution of controversies
  8. And the shared interest of the several States in furthering fundamental substantive social policies.[S2]
  1. Pavolova case – cyberspace, Zippo.
  2. Websites: passive, active, or interactive.
  3. If active, then Jx, but “reserve judgment for interactive”
  4. Pennoyer v. Neff, Shoe, Asahi, BK, VW

Exceptions to Requirements of Traditional Jurisdiction Analysis

  1. If a party consents to Jx (forum selection clause, Carnival v. Shute) then Jx is appropriate. Contract cases - In Civ Pro outline – it is possible for parties, even “little people” to freely enter into and be bound by contract provisions for forum selection.
  2. Consent can be express, implied, or by waiver
  3. Waiver: where D have waived any challenge to Jx (ie failure to object to PJx in initial response to complaint)

Challenging Personal Jurisdiction

  1. Pleadings, how a person consents to Personal Jx, making a general appearance or contracting into .
  2. You have to contest when you first make an appearance; the objection to PJx can only succeed if it’s timely.
  3. Waiving PJx
  4. Stipulations or consent agreements between parties (Carnival cruise case)
  5. State procedures finding constructive consent
  6. Estoppel
  7. If a party makes a motion per Rule 12, but fails to raise the defense of lack of P Jx in the initial motion. (committee vs. Dennis Reimer, p 391)
  8. Does long arm statute extend the proper reach?

In rem and Quasi in –rem

  • The chart on P 152
  • In-Rem (property dispute)

General Rule: gives court authority to decide all claims affecting property

  • Must satisfy minimum contacts standard under Shaffer v. Heitner
  • When claims to the property itself are the source of the underlying controversy D’s claim to property located in the State would normally indicate that he expected to benefit from the state’s protection of his interest.
  • Quasi in-rem

General Rule: Jx over the D personally, but only to the extent of the in-state property belonging to him that has been garnished or attached.

  • They got rid of quasi in-rem. Treatment of stocks. (Shaffer)
  • Now, use minimum contacts test under Int’l Shoe for quasi in rem
  • Limited Appearance
  • D appears in court when a suit has been brought in rem or quasi in rem and defends the case on its merits. Her liability is limited to the debt or property garnished or attached by the court
  • Special Appearance
  • A D appears only to contest Jx; her appearance does not constitute consent to the court’s Jx
  • Cannot make 2 contests. Only Jx. If you contest something else too, then you waive your Jx
  • In personam jurisdiction – being physically present IS due process. Even if no minimum contacts. (Burnham)
  • Scalia vs. Brennan – Tradition vs. Fairnes
  • Looking at trend in SCOTUS
  • Shaffer vs. Heitner & Burnham vs. Supreme Court

Subject Matter Jurisdiction

  1. General Rule: Authority of a court to hear a certain class of disputes
  2. Cannot be waived; must exist. Thus can be raised anytime during litigation
  1. Federal Courts = limited jurisdiction
  2. Most are concurrent – Jx over the matter can exist in state courts as well, unless Fed statute says otherwise
  3. Diversity Jx is ALWAYS concurrent
  4. Where only federal:
  5. Antitrust 1337
  6. Bankruptcy proceedings 1334
  7. Patent and copyright 1338(a)
  8. Securities and admiralty 1333
  1. State courts = general jurisdiction

Federal Court Subject Matter Jx

  1. Federal Question Jurisdiction §1331
  2. Cause of action arises under the constitution, treaties, or laws of the US. Including federal common law.
  3. Arises under =
  4. Federal law creates the cause of action or
  5. The P’s complaint requires resolution of a substantial question of federal law (not incidental)
  6. No Amount in controversy, with a few exceptions not mentioned in class
  7. The federal question MUST BE a WELL PLEADED COMPLAINT, in the PLAINTIFF’S COMPLAINT, not later on by Defendant (Mottley; breach of contract = P against federal statute = D  not Federal Jx)
  8. Can be raised even if the P has a faulty claim, as long as claim is plausible (see pleadings). Then D needs to file 12(b)(6), but still ok as Fed ? Jx
  1. Diversity Jurisdiction §1332

General Rule

  1. The authority of the federal courts to hear cases when the parties fall within certain categories and the amount in controversy > $75,000, exclusive of interests and costs.
  2. Between citizens of different states (see 1332 for specifics)
  3. Citizenship = Domicile = Mental intent to stay indefinitely + physical residence

Sub-rules/elements

  1. Amount in controversy 1332(a)
  2. Must be more than $75K ($75,001 ok)
  3. Amount determined when the action is commenced
  4. P must plead the amount in his complaint. D could successfully move to dismiss by challenging “legal certainty” of amount.
  5. P may not necessarily recover >75,000 (irrelevant to SMJx)
  6. Diverse Citizenship 1332(a)(1)
  7. Look at the time it is filed
  8. Complete diversity <when citizenship does not cross the “versus” line of P(s) v. D(s)>
  9. Citizenship = Domicile= intent to stay indefinitely + physical residence

i. Basic Rules for Diversity Jx Domicile:

  1. US Citizens and resident aliens = state where they live with intent to stay indefinitely
  2. US Citizens living abroad = no domicile in US, can’t sue or be sued under Fed D Jx.
  3. Non-resident aliens = can be sued or sue in any court under “alienage” Jx (§1332(a)(2))
  4. Corporation §1332(a)(1) = state of incorporation and state of principal place of business
  5. PPB
  6. Nerve center test
  7. Corporate HQ, or where decision making takes place
  8. Muscle test
  9. Where majority of manufacturing occurs or service is provided.
  10. Unincorporated association (partnership, trade union, charitable org) = has citizenship in every state of which any member is a citizen. If members in each state, then no diversity jx.
  1. Multiple residences, then focus on intent to stay indefinitely –

Center of gravity factors TEST:

  1. Place of employment
  2. Voter/vehicle registration
  3. Driver’s license
  4. Current residence
  5. Sites of other property or intangible interests
  6. Bank accounts
  7. Club memberships and
  8. Mailing address
  1. Point in time to capture domicile for federal cases – when the action commences
  2. The day the action is filed with the court clerk is when domicile is determined.
  1. Complete Diversity rule: no Diversity Jx if any P is a citizen of the same state as any D
  2. Exceptions: Statutory interpleador, supplemental jurisdiction, class actions
  1. Joinder issues – amount in controversy
  2. 1 P, more than 1 claim = >$75K is ok
  3. 2P, 2 claims >$75K is NOT OK, unless it’s a JOINT CLAIM (single title or right in which Ps have a common and undivided interest, ie property)
  4. If multiple Ds and Ds jointly liable or if suit of conspiracy, then P could aggregate claims to exceed $75K

Venue §1391 ,1392, 1404 (inconvenience), 1405 (cure or waiver defects)

General Rule

  • After you establish Jx, then look at Venue.
  • The place where a given action will be heard (which district)
  • Determined as of the time the action is file (not when the claim arose)
  • If venue is improper and D objects, the remedy generally is to TRANSFER the case to court with proper venue.

Sub-rules (Venue is proper in a judicial district where):

  1. Diversity is the only source of Jx, then use §1391 (a)
  2. Any defendant resides (his domicile), if all D’s reside in the same state, or
  3. A substantial part of the events giving rise to the claim occurred, or
  4. If the subject matter relates to property, where the property is located, or
  5. If neither of the above, then anywhere the D is subject to PJx when the action commences (when P files the complaint in federal court)
  1. Federal Question is the basis for Jx, then use §1391 (b):
  2. Where any D resides, if all Ds reside in the same state
  3. A substantial part of the events giving rise to the claim occurred or, if the property is the subject matter of the suit, a substantial part of the property is located, or
  4. Where any D may be found <subject to P Jx>, if venue isn’t proper in any other district
  1. Corporations §1391 (c)
  2. Residents of any judicial district where they have min contacts necessary to support P Jx.
  3. Residence = any district with PPB, substantial operations, and in any district in which state incorporated.
  4. Keep in mind 3 circles of venue, PJx and Subject Matter Jx
  1. Change of Venue §1404: Forum non-conveniens
  2. A federal district court can transfer to ANY other district in the country only so long as:
  3. Either Plaintiff or Defendant can raise to move under convenience.
  4. All parties must agree
  5. Still tried under the law of the first district because inconvenient, not incorrect.
  6. To do so is “in the interest of justice” (the measure cts use to determine)
  7. The case could have been brought in the transferee court originally.
  8. Federal courts not limited by state boundaries in transferring cases to other districts.
  1. Cure or Waiver defects §1406
  2. Motion for improper venue
  3. Grounds for dismissal (like 12b3) OR, if “in interest of justice,” then
  4. Can transfer anywhere in the country (federal court not limited to in-state transfers)
  5. Tried under the law of the new district because first was improper

Removal §1441

General Idea

  • Moving a case from state forum to a federal forum. Usually because it could have been federal but Ps for some reason chose state. Only the D can remove.
  • Cannot move from federal to state.
  • Determined AT THE TIME THE PETITION TO REMOVE IS FILED (Caterpillar)

Sub-ideas

  • D’s petition can include:
  • Allegations of citizenship
  • Amount in controversy (if not clear in P’s complaint)
  • Any fraudulent joinder the P has undertaken to avoid removal

Rationale

  • For diversity case, protect non-local D’s from bias (thus, no federal to state removal, only vice versa)
  • For fed Q case, removal gives D the ability to have the case litigated in its “natural” forum

FRCP Rules

  1. What actions may be removed from state to federal court? §1441(a)
  2. Any action brought in state court that could have been brought originally in federal district court
  3. Exception: in diversity cases, the action is removable only if no D is a citizen of the state in which the action was brought.
  4. Only the D may remove; P gets first choice in filing complaint.
  5. If removal is possible and the D files a timely petition of removal, then the case MUST be removed to federal court.
  1. Properly removable to federal court. Which federal court to remove to? §1441(a)
  2. The district court of the US for the district and division embracing the place where the state action is pending

Non-removable actions

  1. USC §1445(a): FELA and Jones Act cases
  2. USC §1445(b): Actions against carriers for delay, loss or damages of shipments, where controversy is less than $10K
  3. USC §144(c): workmen’s compensation proceedings
  4. USC §77v(a): Securities act claims for recovery for misrepresentation
  5. USC §216: Fair Labor standards act cases (courts are split about allowing removal)
  6. USC §1445

Remand – bringing it back again to state court after its been removed to federal court

  1. Mandatory Remand §1447(c)
  2. If Statutory req’s for removal are not satisfied, the federal judge MUST remand back to state court.
  3. Discretionary Remand §1367(c)
  4. If federal trial of the case would be Jx’lly proper, but unwise, the federal judge has the discretion to remand the case back to state court

Pleadings

  1. History of pleadings (basics)
  2. Burden of Pleading
  3. Burden of pleading is not the same as burden of persuasion (Renhquist will put burden of persuasion on the Plaintiff)
  1. Burden of pleading: In complaint by P or answer by D or something later? Allegation
  2. Burden of proof or production: Coughing up some evidence; producing something (ie smoking gun memo). Produce evidence admissible at trial supporting an allegation
  3. Burden of persuasion: Convince the fact finder of your way or not. More likely than not all the elements have been met in a claim. This happens during trial. Whether or not that evidence is persuasive at trial.
  1. Basic pleadings: Rule 7, Forms
  2. FRCP 7: A pleading is the complaint, the answer, and the reply, if any
  3. Pleadings lead the way to discovery. Pleadings can be the gatekeeper or floodgates to this expensive next step.
  4. Elements of a claim Rule 7:
  5. Legal cause of action
  6. Facts supporting claim
  7. Damages (in most cases, not including strict liability). Confirms legal claim. Dirty looks not good enough.
  8. Standard for Pleadings from 1938 to 1997: Conley v. Gibson
  9. Rule elaboration Pleading: Swierkiewicz, 2002 case
  10. The Court says you don’t need specific facts to establish a prima facie case. All you need to do is Rule 8, short and plain statement. The rejection of each and every element is still there. You don’t have to address each and every elt, but it’s a good idea generally to try to do this.
  1. New Standard for Pleadings 1997: Bell Atlantic v. Twombly
  2. Short and Plain pleading
  3. P303 “requirement of…more than a statement of conclusions even without the support of Rule 9(b)
  4. Plausible not merely possible; not necessarily probable.
  1. Special pleadings: Rule 9
  2. “Qualified immunity” (Scultea v.