Barbri Notes

Personal Jurisdiction
What states can we sue the individual in?

Determined by two things

Power over defendant or power over her property

First question to ask: Does the statute (LONG ARM) grant jurisdiction?

Two Part Process

1. Statue Inquiry
2. Constitutional analysis

In Personam
a. General jurisdiction – claim can arise anywhere in the world
b. Specific – claim must arise in the forum

Traditional Basis of In Personam (Penoyer)

1. D Served with process in forum state.
2. D agent is served in forum state
3. D is domiciled in the state
4. D consents
a. Hess (expanded implied consent) Based on state statute allows
specific jurisdiction ( Motorist on the road)

International Shoe – Minimum contacts with the jurisdiction.

1. Flexible rule
2. Clears that you can serve process on a defendant outside of the forum
3. Does not overrule Peynoyer, this is just in addition to
4. Looks at two parts, Contacts and Fairness

McGee – Court said 1. Defendant solicited contract in CA. 2. Plaintiff’s claim arose
from defendants contact with forum (relatedness) 3. The state had significant
interest.

Hanson – When applying International Shoe contact must result from the
defendant’s purposeful availment in the forum.

Calder – causing an effect on the forum is enough

Ashai – Stream of commerence

1. Brenan – is a contact if put product into the stream of commerce and
reasonably believe it will get to state x.
2. O’Connor – Need Brenan test plus an INTENT to serve state x.
Bernum – Asked if Peynoyor had been replace by International Shoe
1. Scalia – Presence when your served is good on it’s own. No “Shoe” needed.
2. Brenan – Must apply “Shoe” everytime.

There is General Jurisdiction is the defendant has continuous, systematic ties

with the forum.

Question to ask: Does the traditional (Peynoyer) basis apply? If not apply
International Shoe

Shoe asks
1. Was there relevant contact between defendant and forum?
a. Must result from Purposeful Availment
b. Must be foreseeable defendant could get sued there
2. Is jurisdiction fair?
a. Relatedness? Arising from contacts with forum?
b. Fairness factors
i. Inconvenient for defendant
ii. States interest
iii. Plaintiff’s interest
iv. Interest in efficiency
v. Interstate Interest in shared substantive policies

In Rem
In rem- the dispute is over ownership of the property.

Quasi in rem – property has nothing to do with the dispute.

QIR is valid only if the court seizes property at the beginning of the case.

Shafer – must meet International Shoe plus QIR, (minimum contacts and property
seized at the beginging of the dispute.
NOTICE

Service of process
Federal Rule 4

1. Process consist of summons and complaint.

2. Service can be made by any non party who is at least 18 years old.
3. If defendant is human there are three ways to serve
a. Personal service
b. Substitute service. Must be at your home and the person served must
be of a suitable age and discretion who resides there as well.
c. Serve the defendant’s agent.

Rule 4 E (1) Following the method permitted by the state law can be used as well.

How to serve a business

Rule 4 H (1)
Must serve an officer or a managing or general agent. Also can use state law.

Waiver of Service
Rule 4 D
Must Mail a process and waiver form, including a self-addressed envelop. If
defendant signs it and returns it, formal service has been waived. If not returned in
30 Days, defendant must still be served. In some cases the defendant may have to
pay for the cost of service.

Constitutional standard
Malone vs. Central Hanover Bank – Notice must be reasonably calculated under all
circumstances to give proper notice.

Subject Matter Jurisdiction

Diversity

Domicile = presence + intent to stay

Company citizenship = State where incorporated and state where principal place of
business is located (nerve center of corporation where business is directed from)
$75000.01 needed for diversity claims.

Cannot aggregate if there are multiple plaintiffs or defendants.

Where filing “joint”, the total value of the claim is taken into consideration.

If not diverse claim must be a federal question

Supplemental Jurisdiction
1367 a,b

Lets federal court here a claim it normally couldn’t.

1367 B – Claims brought by Plaintiffs, only in diversity cases.

No supplemental jurisdiction under claims against parties joined under rules
14,19,24. Rule 19 plaintiffs and rule 24 plaintiffs.

Supplemental Jurisdiction is allowed if it shares a common nucleus of operative face

with the first claim. Common nucleus is always met from claims that arise from the
same transaction or occurrence (t/o)

Removal
1441,1446,1447

Removal allows defendant to have state court case removed to a federal court.

Case is removable if it meets federal SMJ or diversity.

(Cannot remove a diversity case if defendant is a citizen of the forum)

All defendants must agree.

Can only be removed to the federal district court that embraces that state court.

Must be removed within 30 days of service.

Cannot remove diversity case if ANY defendant is a citizen of the forum state.
Venue
1391

Decides which federal court should hear your case.

A. When filing in federal court you may…

1. Venue in any district where all defendants reside
a. If all d’s reside in different districts of the same
state can sue all where any one of them resides.
2. residence is your domicile
3. a business resides in every district where it is subject to
personal jurisdiction.
B. Also can file in any district where a substantial part of the
claim arose.

Transfer of Venue

From one federal court to another federal court.

Original court – transferor

Receiving court – Transferee

Transferee must be a proper venue and have personal jurisdiction over the
defendant.

1404a- applies when transferor is a proper venue ( transferred based on

convenience and the interest of justice) Public & private factor

1406a – applies when transferor is an improper is an improper venue. Can dismiss

or transfer

Forum non convien – dismissed because there is another court that is the center of
gravity, Done when transfer is not possible ( Usually in cases involving a foreign
party)
Erie (Choice of Law)

1st thing to always consider is Hannah v. Plummer. Is there some federal directive
concerning this question? If so Federal directive always wins (REA 2072)

Next we consider Erie.

Federal court in diversity case must apply state substantive law and federal
procedural law (RPA 1652 & 10th Amendment of the Constitution)
*Elements of claim are considered substantive.

Is a rule substantive? 3 test exist

1. Outcome determinative test (Guarantee Trust) – does

applying federal law affect the outcome? If so we should use
state law.
2. Balance the interest test (Byrd) – We should follow state law
unless there are federal interests in doing it differently.
3. Twin arms of Erie
1. To avoid forum shopping
2. The equitable administration of the law
a. If the judge ignores state law on this issue will it
encourage parties to flock to federal court? If so
follow state law.

Pleadings
Pleadings are the documents parties file

Complaint (Rule 8a) – Filed by the plaintiff. Includes:

1. Statement of grounds for SMJ
2. Short and plain statement of the claim
3. Demand for relief sought

Short and plain statement of claim

Twombly & Iqbol changed the rules
1. Plaintiff must plead facts supporting a plausible claim.
2. Court will ignore conclusions of law.
3. Court will use it’s own experience and common sense to determine whether
a claim is plausible or not.

Rule 9B – Allegations of fraud or mistake require detailed complaints

Rule 9G – If claiming special damages must be pleaded with specificity
Defendant’s response (Rule 12)

Must respond within 21 days by motion or by answer.

Motion – is not a pleading but a request for a court order (rule 12b)
Answer – a pleading. Can raise 12B.

Motions
Listed in rule 12
Rule 12G & 12H
1. Rule 12 B 2-5 must be included in your first rule 12 response.
2. Rule 12B 6-7 – Can be raised anytime throughout the trial.
3. Rule 12B 1 is not waivable

Answers
Response to the complaint (rule 8B) must
1. Admit some things
2. Deny some things
3. Or say you lack sufficient information

Failure to do so is treated as an admission

Can also raise affirmative defense in answer.

Joinder
Rules that determine the scope of the litigation.

1. Claim Joinder by a plaintiff (rule 18A)

a. No limit
2. Claim Joinder by a defendant
a. Counter Claim (13A,B) – claim against opposing party
i. Complusory counterclaim – one that arises from the same t/o
as claim (13A)
ii. Permissive counterclaim (13B) – does not arise from the saim
t/o. Does not have to be asserted but can.
3. Cross claims (Rule 13G)
a. Claim against a co-party
b. Must arise from same t/o of underlying claim
4. Proper parties (Rule 20A)
a. Who may be joined?
i. Parties can join together if claim arises from same t/o and raise
at least one common question.
 ii. Rule 20A2 – Can join multiple defendants if claim arises from
same t/o and raise at least one common question.
5. Necessary / Indispensable parties (Rule 19)
a. Who must be joined?
i. Ask, “Who is necessary?”
1. Rule 19A1a – Without x court cannot accord complete
relief among the parties.
2. Rule 19a1b1 – Absentee’s interest may be harmed if not
joined.
3. Rule 19a1b2 – absentee’s absence may subject D to
multiple or inconsistent obligations
6. Is Joinder feasible?
a. Yes if there is personal jurisdiction, and
b. It doesn’t mess up diversity
7. Necessary absentee but joinder not possible (Rule 19B)
a. Proceed without absentee
b. Dismiss case
i. If court dismisses case will plaintiff have adequate remedy? If
court dismisses it means absentee is indispensible. (Rule
12B7)

IMPLEADER
Rule 14

Defending party joins someone new (Third party defendant) because TPD may be
liable to d for plaintiffs claim. May owe indemnity (insurance company) or
contribution ( joint tortfeasor)

Plaintiff can assert claim against TPD s well (Rule 14A3).

TPD can assert a claim against plaintiff as well (14A2D)

INTERVENTION
Rule 24

When an absentee party joins themselves. Absentee can choose whether they want
to be a plaintiff or defendant however the court may realign them.

When you intervene it must be done in a timely manor

Two types of intervention

1. Intervention of Right (24A2) – you have a right to intervene if your interest
may be harmed if you are not joined
2. Permissive intervention (24B2) – absentee must show that his claim and the
pending case have at least one common question.
DISCOVERY
Required disclosures (Rule 26A)
Parties must produce certain information
1. Initial Disclosures (26A1) – must identify people with discoverable
information that you may use at trial.
2. Must give description of documents you plan to use at trial including;
a. Experts (26A2)
b. Pretrial information, given on the eve of trial (26A3)

Discovery Tools

1. Deposition – Sworn oral testimony. Can depose a party or non-party, but

must subpoena non-party (Rule 30 &31)
2. Interrogatories (Rule 33) – written questions answered in writing under
oath. Can go to parties, never to non-parties.
3. Request to Produce (Rule 34) – Written request that access be granted to
something (ESI, documents, etc). Can be used for non-party, if subpoenaed.
4. Medical exam (rule 35) Must get court order, must be part of the party or
party who has legal custody or legal control (children).
5. Request for admission (Rule 36) – to force another party to either admit or
deny any discoverable matter. Must be a party.

Scope of Discovery

1. Standard (26b1) can discover anything relevant to the claim or defense.

2. Privilege matter is not discoverable
3. Work Product/ Trial Prep materials (26B3) – Material prepared in
anticipation of litigation is protected to avoid free loading.
a. Can override if you show substantial need and info is not otherwise
available.
b. Mental impressions/ conclusions/ legal theories never have to give
over.
c. Does not have to be generated by a lawyer.

PRE TRIAL ADJUDICATION

12B6 Motion to dismiss for failure to state a claim.
1. Court never looks at evidence here
2. Looks at face of complaint only
3. Court ask, “If everything here were true would the plaintiff win?” (Missing
elements)
4. If can’t win motion will be granted.
5. Looks at legal sufficiency of the claim.
Summary Judgment (SMJ) Rule 56
1. Court can and will look at evidence
2. Moving party must show
a. no dispute on an material issue of fact
b. entitled to judgment as a matter of law
3. Evidence is provided by parties. Items under penalty of perjury. Can use
affidavits, not pleadings.

TRIAL
To resolve disputes over facts. Left to the jury.

Bench trial - no jury, just judge.

Right to Jury Trial

7th Amendment only applies in civil cases in federal court. Preserves right to jury
trial. Does so only at law an not equity.

Is the claim analogous to a claim that existed in 1791? Answer is almost always yes.

What is the plaintiff after? A legal or equitable remedy?

1. Remedy at law is damages (i.e. money)
2. Equitable remedy – Injunction, specific performance, rescission of contract.
a. Can be enforced by threat of incarceration.

Beacon Theater / Dairy Queen

1. Must determine right to jury issue by issue. Not center of gravity.
2. If an issue of fact underlies both law and equity. You get a jury trial.
3. Generally will try jury issues first.

MOTIONS
A way for the judge to control the jury.
Judge has to determine if there is enough evidence to go to the jury (only in civil
cases)

1. Judgment as Matter of Law ( Rule 50A)

a. Is raised at trial
b. Takes case away from jury
c. Standard (50A)
d. Will grant if reasonable jury can only come out one way.
e. Must be a motion for JMOL
f. 50A2 can only move after other side has been heard at trial
2. Renewed JMOL (RJMOL) Rule 50 B
 a. Same as JMOL. Here the court denied JMOL. Trial goes to judgment
and jury comes back with irrational verdict. Loser makes a renewed
JMOL motion. Comes up after trial.
b. To move for RJMOL you must have moved for JMOL at trial.
3. Motion for new trial (59A1)
a. Comes up after judment has been entered.
b. Judge must think there was a big enough error that the trial should
start over.
c. Less drastic than RJMOL

APPEALS
Final Judgment rule – cannot appeal until trial court enters a final judgment.
-test- ask after making this order does the trial judge have anything left to do on the
merits of the case? If yes, not final, cannot appeal yet.
1. exception
a. interlocutory review
1. by statute 1292A & 1292B
2. Federal Rule 23F & 54B
3. Collateral Order Rule – allows you to ask ct of appls to review another
issue that is unreviewable if left to final judgment.

CLAIM AND ISSUE PRECLUSION

Must be two cases. One, which is over, and another, which is pending. Does
judgment from first case preclude it from litigating it in the second?

Claim Preclusion (res judicata)

You only get one case to vindicate a claim (one bite at the apple)
Will apply if:
1. Shaw that both cases are by the same claimant against the same defendant.
2. Show that case ended in a valid final judgment on the merits. Every judgment
is on the merits unless based on jurisdiction, venue or indispensable parties
(rule 41B)
3. 3. Show that both cases involve the same claim. Claim = T/O
a. Minority view (CA) – Primary rights get a claim for each right invaded.

Issue Preclusion (Collateral estoppel)

Issue was established in case 1.
1. Show case one ended in a valid final judgment on the merits.
2. Show that issue was litigated and decided in case 1.
3. Must show that issue was essential to judgment in case 1.
4. Ask against whom preclusion is used. Only used against someone who was a
party in case 1.
5. By whom is preclusion used. Mutuality. You can only use it if you were a
party in case 1. Used to be the majority view
a. Defensive – non mutual issue, majority allow. (where not part of the
first case) a defendant in this case.
b. Offensive - non mutual (plaintiff) – majority says it is not acceptable.
But trend says it’s ok if it’s fair. (Parkside Hosiery)
i. Fairness factors
1. Did D have a full chance to litigate in case 1?
2. Could D foresee multiple claims?
3. Could you have easily joined in case 1?
4. No inconsistent judgments?