Pre-Answer Motion to Dismiss (Rule12)

Pre-Trial defenses:
Any Rule 12 motion, they must bundle them all together or risk waiver of certain preliminary procedural defenses. FRCP 12(g) and (h).
D can also raise these same defenses in an answer if forgo a Rule 12 motion.

Pre-answer Motion to Dismiss (Rule12)

12b1 (SMJ)
12b2 (no PJ):
12b3 (improper venue) - 1391/1406
12b4 (insufficient process) (eg: Defects in the paperwork, lacking a file stamp, missing the summons)
12b5 (insufficient service of process, the act itself) - Rule 4/state law
12b6 - Bad facts to show that law was broken - or bad law ('attack viability of substantive claims')
Has P pleaded facts that, if true and proven, would entitle P to relief
Did P plead a legal theory not available to them
Insufficient facts
12b7 - indispensable party not here
12b6-7 can be any time up UNTIL trial

Due Process

Opportunity to Be Heard

5th Amendment: / Federal Govt: "nor be deprived of life, liberty, or property, without due process of law"
14th Amendment: / State Govt: Section. 1. "nor shall any State deprive any person of life, liberty, or property,without due process of law"

Right to Counsel

Lassiter, Right to counsel for parent during parent termination hearing used Matthews test
Matthews Test to determine due process, Matthews v. Eldridge, 1976
Due process requires the evaluation of these three elements = The risk v. probable value of additional safeguards'

Private interests at stake
Government's interest
Risk that procedure used will lead to an erroneous deprivation of personal rights [liberty]
Case by case, highly subjective test
Gideon v Wainwright - counsel in criminal trials
But, with Gagnon v. Scarpelli, no counsel with probation revocation
Therefore holding was no counsel for Lassiter: - no standard set one way or the other
Walters - Right to counsel in V.A. case
Hamdi - - national security v. due process
Writ of habeas corpus 28 USC §2241
Grant of certiorari

NOTICE: FRCP 4, - Summons, Serving Process in US

4a - What the summons must contain
4c - Complaint must accompany the summons

Check that summons was served with complaint!
Person serving must be over 18
4d1 - Waiving Service:
D has duty to avoid unnecessay expenses of serving summons
P may notify D that action has been commenced and request that D waive service of summons. Notice and request must:
Be in writing and addressed to D or officer etc
Name court where complaint filed
Accompanied by copy of complaint, 2 copies of waiver form, and prepaid means for returning the form
send by mail or other reliable means.
Check all the requirements in FRCP!
Get 60 days to answer after return waiver. Otherwise must answer 20 days after service.
4d2 - If failure to waive after P requests for D located in US, court charge service fee later incurred.
4e - Serving in a US jurisdiction:
Can't serve a minor or an incompetent person or if waived
Must follow state law for serving summons + complaint: (only use below case if State statute given)
Federal court also follows state law for service
Mullane = Constitutional minimum. Notice must be Reasonably Calculated.
Green - State must look at feasible and reasonable alternatives: Mail
OR:
Hand delivery
Leave copy at person's dwelling or usual place of abode with non-minor
Possible to have more than more dwelling or place of abode. Gauge the likelihood that he received notice. Khashoggi
If indication of permanence and person is presently living at the place of abode it may be proper place to service
Delivery to appointed agent to receive service
Mid-Continent/Wood - Not enough that party 'aware' of suit. Must satisfy rule 4 in successfully serving summons and complaint. Must be procedurally correct.
4f - Serving in a foreign country: (Hague convention or FRCP can be used)
Can't serve a minor or incompetent person or if waived
(4f1) Follow international agreed method like Hague convention:
A "Judicial Officer" who is competent to serve process in the state of origin is permitted to send request for service to the "central authority" in receiving state. That central authority would then arrange for service in a manner permitted and once service is affected, the "central authority" sends certificate of service to the judicial officer.
OR if no internationally agreed means:
(4f2A) Use foreign country’s law for service, OR
(4f2B) Use letter of rogatory to formally request foreign court to effectuate service, OR
Unless prohibited by foreign country's law:
Hand deliver to person (not allowed for foreign corporations)
Any form of mail that the clerk of the court addresses and sends to individual and requires signed receipt.

4h - Serving Corporation:
Same as 4e1, but to an officer or managing agent or service agent OR
Delivering to officer/managing agent AND by also mailing copy to defendant
Note: Was it addressed to the officer?
If to foreign corporation, use 4f, but no hand delivery

4i - Serving the US and its agencies, officers, employees
Hand deliver to US attorney for district where action is brought for OR
Send by registered/certified mail to US attorney's office

AND

Send registered/certified mail to Attorney General of US in DC

AND

Send registered/certified mail to agency (if action against agency)

4j - Serving Foreign State or Local Government
For Foreign State - Follow 28 USC 1608
For State or Local Government
Hand delivery to CEO or
According to that state's law

4m - Time Limit for service:
Must be served 120days after complaint is filed otherwise action dismissed without prejudiced.

PERSONAL JURISDICTION

Why does Forum matter? Stakes in Choice of Forum:

Convenience
Bias—places outside ∆ at disadvantage
Cost:
Travel, hire two lawyers

Home court advantage:
Leverage Reduced. ∆'s local attorney more motivated to settle.

Choice of law based on forum
System tends to favor πs

Defenses to Jurisdiction:

Jurisdiction challenge must be raised at 1st motion or in answer or waived.
Direct attack: special appearance to challenge jurisdiction 12b
Collateral attack: accept default judgment and when they try to collect assert no jurisdiction Rule 60b

If defendant is in forum state:
Service in forum , Grace v. MacArthur-airplane/airspace)
Must voluntarily travel to forum state. No fraud.
No tag jurisdiction over companies
Burnham/Pennoyer --> Justice Scalia:
Tradition from Pennoyer. Pennoyer never overturned. So Scalia's argument stronger.
Burnham ---> Brennan
Not fair just because of tradition. Undertake independent inquiry into the fairness (min. contact analysis)
Agent to receive service of process (even if you don't know him) Consent! Szukhent

If defendant is NOT in forum state: -
Two element must be satisfied

Statutory Requirement: Long Arm Statute. Make sure you address each subsection in the statute.

Constitutional Requirement: Comport with the requirements of the Due Process Clause of the 14th Amendment.

Satisfy Long-Arm Statute: AND
State: Use State's Long-Arm Statute. If state issue and in federal ct because diversity, still use state Long Arm Statute
Federal: Also use state's Long Arm Statute. If can't establish Jx w/ Long Arm, then use Rule 4k2 if:
Stateless corporation: Can’t have PJ in any state’s courts?
Federal issue (Must have SMJ)
State Long Arm Statute doesn't apply.

Satisfy Constitutional Floor: 2 part test of 1) Min contact 2) TNSJFP (International Shoe)
Minimum Contact with Forum State: (treat entire US as one 'state' for Federal Law)
Contacts must Purposefully Avail forum state. (Intentionally and making deliberate effort to reach out to forum state or residence in that forum)
Examples of Purposeful Availment:
Property (Shaffer)
Contract (BK, McGee)
Use of Road? (Hess)
Streams of Commerce Plus (Asahi, Justice O'Conner required more for purposeful availment)
Placement of a product into the stream of commerce without more is not an act of the D purposefully directed toward the forum state.
Must indicate an intent or purpose to serve the market in the forum state:
Designing product for the market of the forum state
Advertising in the forum state
Establishing channels for providing regular advice to customers in the forum state
Marketing the product through a distributor who has agreed to serve as the sales agent in the forum state
% of sales from CA
Agency (wholly owned subsidiary) (Telcordia)
Allow a court to establish jurisdiction over the parent based upon its jurisdiction over a subsidiary.
Under the agency theory, the court may attribute the actions of a subsidiary company to its parent where the subsidiary acts on the parent's behalf or at the parent's direction.
Thus, the agency theory examines the degree of control which the parent exercises over the subsidiary.
The factors relevant to the court's examination include:
The extent of overlap of officers and directors;
Methods of financing;
The division of responsibility for day-to-day management; and
The process by which each corporation obtains its business.
No one factor is either necessary or determinative; rather it is the specific combination of elements which is significant
The mere existence of an agency relationship is not sufficient to confer jurisdiction. The court must still apply the state long-arm statute. A finding of agency does not render the long-arm statute inapplicable, but simply implicates its or through an agent provision
It is entirely appropriate for directors of a parent corporation to serve as directors of a subsidiary, and that fact alone may not serve to expose the parent corporation to liability for its subsidiary's acts. As such, this factor does not weigh in favor of a finding of agency
Website:
Contracts with residents involving knowing and repeated transmission of computer files. Passive website not enough to satisfy min contacts. (Zippo)
The mere operation of a commercially interactive web site shall not subject the operator to jurisdiction anywhere in the world. Rather, there must be evidence that the defendant purposefully availed itself of conduct activity in the forum, knowingly interacting with residents of the forum state via its web site.
Zippo sliding scale:
Enter into contracts with residents of foreign jurisdiction that involve the knowing and repeated transmission of computer files over the internet (PJ is proper in this case)
Interactive Websites where users can exchanged information with the host computer. In these cases exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the website.
Those who simply posted information on an internet website accessible to users in foreign jurisdictions.
Examining the level of interactivity and commercial nature of the exchange of information that occurs
Traditionally when an entity intentionally reaches beyond its boundaries to conduct business with foreign residents, the exercise of specific jurisdiction is proper. (Burger King)
Examples of Not Purposeful Availment:
Streams of Commerce (Asahi, Dissent Justice Brennan introducing product into commerce that you know will reach state is purposeful availment)
Family Relationship (Kulko)
For policy reasons. Don't want you to avoid your family just to prevent min. contact.
Website: Only post information on internet website for viewing
Contacts Relatedness to Dispute:
Specific Jurisdiction
Few contacts AND
but highly related to dispute
General Jurisdiction
Many contacts: continuous and systematic (WWVW) AND
not related to dispute

AND TNFPSJ not offended in bringing suit there: (International Shoe):
In determining whether exercising jurisdiction comports with TNFPSJ we consider five factors: “…. [Asahi] These factors may render a jurisdiction unreasonable despite the presence of minimum contacts. (Number with headings)
Test (Asahi):
Burden on Defendant in going to forum state (in having to litigate in the forum)
Although progress in communications and transportations has made the defense of a lawsuit in a foreign court less burdensome...
Having to defend oneself in a foreign legal system should have significant weight in accessing reasonableness.
Compare distances to in BK where court found it reasonable for MI resident to defend a suit in FL

Forum State's Interest in adjudicating dispute
Parties citizen of its state?
State has high interest in adjudicating claims regarding harm suffered by its citizens and ensure the safe of the products sold in the state.
Eg: US has interest in adjudicating claims of malpractice occurring before its federal agencies.
This factor does not indicate that exercising personal jurisdiction on D would be unconstitutional

Plaintiff's interest in obtaining convenient and effective relief
Both U.S. and Canadian courts could equally provide the relief that Touchcom seeks
P not forum shopping and are citizens of that state.
All witnesses and medical evidence in CA.
This factor is therefore neutral

The interstate judicial system's interest in obtaining the most efficient resolution of controversies
(Eg Asahi: Location of Contacts, Where fault occurred, Act)
The United States does not appear to be any less efficient a forum in which to adjudicate this dispute
Look at the choice of law rules for a particular state in relation to where the wrongful act occurred and determine which state's law governs the action.
This factor would/ would not favor either party.

The shared interest of the states in furthering fundamental substantive policies (social policies):
US has Policy Interest of regulating the practice of foreign attorneys appear before a US agency.
Canada also has an interest in regulating …
State has interest in ensuring safety of products entering state.
This factor would/ would not favor either party.

In light of appellees' minimal burden in litigating this case in the United States and the United States' interest in and efficiency in adjudicating this dispute, we accordingly find that exercise of jurisdiction in this case comports with due process.

Consent:
Carnival:
Choice of forum clauses: can argue not bargained for or argue boiler plate necessary for efficiency.
Szukhent:
Contract to appoint agent to receive service of process
Domicile:

Notice (Procedural Due Process: Must provide with notice and opportunity to be heard)

SUBJECT MATTER JURISDICTION:

FRCP 12(b)(1): Defenses by motion - Lack of subject-matter jurisdiction

FRCP 12(h)(3): If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

SMJ can't be waived and can be brought up any time (during trial or appeal) by the D or by the courts sua sponte

SMJ can be established by Diversity Jurisdiction or by Federal Question Jurisdiction. (also Supplement Jurisdiction)

DIVERSITY JURISDICTION:

Diversity Jurisdiction has both a constitutional floor and a statutory authority.

U.S. Constitution, Art. III, Sec. 2 (918) - Most Broad
Power of Federal Court shall extend:
To Controversies "between 2 or more States; between citizens of different States; between Citizens of the same State claiming Lands under grants of different State, or the Citizens thereof; and foreign States, Citizens or Subjects

Statute: 28 USC Sec. 1332 - Diversity of Citizenship: (675)
Federal Jurisdiction when:
Matter in controversy exceeds $75,000 excluding interest and costs AND
Parties are citizens of different states:
Citizens of different States; Eg: CA v. NY
Citizens of a State and citizens or subjects (UK) of a foreign state (foreign country)
Citizens of different States and in which there's a citizen or subject of a foreign state
A foreign country as P and a citizen of a State or of different states.

For alien US Permanent Resident. Citizenship = State he is domiciled.
Corporations can be deemed citizens in State they are incorporated and also in principal place of business(headquarter)
Legal representative of:
Estate of a decedent deemed citizen only of same State as decedent.
Infant or incompetent deemed citizen only of same State as the infant or incompetent

Case Law: (page 210 of text)

Courts determining diversity Jurisdiction:
There must be COMPLETE diversity(Strawbridge v. Curtiss, 1806)
OK to dismiss non-diverse party to make up complete diversity
Citizen determined at the time action is filed
Burden of proof to establish domiciliary of the parties is on the party who wants to establish diversity to prove. (Tanzymore).
Examples:
CA citizen v. US Citizen domiciled abroad: No Federal Jx because US Citizen is considered stateless.
French Citizen v. British Subject: No Federal Jx because they are considered stateless.
CA citzen v. Corporation(PPB@CA and Inc@DE): No Federal Jx because look at both components of Corporation.
Definition of Citizenship:
To be a citizen of a State, must be both US citizen and a domiciliary of that State (Mas v. Perry)
"Domicile" is: (Stine v. Moore, 1954)
"Presence" - the place of "his true, fixed, and permanent home and principal establishment AND
"intent to remain indefinitely" - to which he has the intention of returning whenever he is absent

"Resident" is where you live, but not necessarily where you intent to stay
Wife's State citizenship no longer follows husband. Gone from Mas v. Perry
When husband is a foreigner, shouldn't make wife stateless (Mas v. Perry)
When Wife is the main breadwinner
American woman doesn't lose US citizenship just because marriage to an alien (8 USC 1489)
Children have their own citizenship and don't necessarily follow guardian
Unincorporated associations - Businesses such as partnerships are citizens of every State a partner resides in

Amount in Controversy; costs
Matter in controversy must exceed $75000. If not stated, complaint in violation of rule 8
Necessary to show that Ps cannot recover > $75K to a legal certainty to defeat diversity jurisdiction
Excludes interest and cost (court fees etc), but attorney's fees only if you're entitled to it (civil rights etc)
Details from case law: (pg229)
OK to aggregate:
Two of more claims of one Plaintiff against a Defendant
Can include counter claims of defendant against Plaintiff.
Cannot aggregate:
More than one Plaintiff against Defendant if claims are separate and distinct
A Plaintiff's claims against multiple Defendants
Estimates of attorney fees, punitive damages etc are base on good faith estimate on the part of the attorneys.

FEDERAL QUESTION JURISDICTION:
State Courts = General Jurisdiction
Federal Courts = Limited Jurisdiction ---> must satisfy SMJ.

Exclusive Federal Jurisdiction: / Exclusive State Jurisdictions:

IP
Securities
Bankruptcy
Military Commissions

Traffic
Family
Probate
Small Claims.

Federal Court / State Court

Protection from state bias
Insulated from local politics
Specialty:
More familiar with federal law
Uniformity:
Fewer circuits
Less judges, easier to predict outcome
Certain areas want to be consistent
Efficiency?

Federalism: Recognize state powers
More familiar with local issues

If there is a federal question, then all other state claims in the suit can be heard together in federal court to promote judicial efficiency