Civil procedure attack outline PDF

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Civil Procedure Attack Outline 1.! Personal Jurisdiction Analysis a.! 3 requirements for a Federal Court to have jurisdiction over a case: i.! Personal jurisdiction 1.! to exercise PJ on absent non-resident defendant, jurisdiction must: a.! fall within long arm statute and b.! comport with due process clause of 14th amendment) ii.! Subject matter jurisdiction iii.! Appropriate venue 2.! Step 1: Does the state have jurisdiction through the state long arm statute? a.! Absent special legislation, federal court only has jurisdiction if the state in which it is sitting has jurisdiction b.! Each state must have a long arm statute—can be broader or more narrow than constitution c.! What is the complaint about and what does the state long arm statute explicitly prohibit or permit? i.! Breach of contract—transacts business within the state (Burger King) ii.! Tortious Act—(Calder/Keeton) 1.! Consider where the act starts and where it finishes in determining if the act took place in the forum state (broad/narrow view of tort) a.! NY Rule—Flint—tort deemed committed within the state only if tortious act or omission itself happened within—not the injury b.! Illinois Rule—Flint—tort resulting in damage inside the state is deemed to have occurred inside the state regardless of where the act or omission actually took place 3.! Step 2: Due Process Clause of the 14th amendment a.! Due process clause prevents the deprivation of citizens’ rights when it comes to a person’s life, liberty, or property without proper due process b.! In establishing jurisdiction, court must consider relationship between the defendant, the forum and the litigation (Shaffer) c.! If jurisdiction is established, Full Faith and Credit Clause makes the decision binding in other states 4.! Step 3: Identify the Contacts with the Forum a.! Residency/domicile b.! Property c.! Transient presence d.! Other contacts e.! Agent in the state 5.! Step 4: Does cause of action arise from or relate to contacts with forum state? a.! Supreme court has never answered what arises from or relates to means i.! Use circuit court decision: 1.! But for: but for conduct, plaintiff wouldn’t have been harmed 2.! Proximate cause: conduct substantial and foreseeable factor in bringing about harm to plaintiff !

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Civil Procedure Attack Outline ii.! Analysis: 1.! If yes to both tests, apply specific jurisdiction and general jurisdiction 2.! If no for both, could argue relates to through specific jurisdiction 3.! If yes to one and no for other, argue both specific and general jurisdiction and note the uncertainty 4.! If contact presence or property, use Pennoyer territorial approach and contacts analysis a.! Plurality decision of Shaffer creates uncertainty (Judge Marshall’s opinion taken literally means Pennoyer gone and use Shoe contacts analysis for everything; dissent/concurrence: Pennoyer good law for real property but not intangible property) 5.! Transient presence, apply both territorial and contacts (Burnham) 6.! Step 5: Specific Jurisdiction Analysis a.! Defendant’s conduct must be continuous and systematic and cause of action relates to the activities in the forum or sporadic or casual activities (even single contact) may suffice if cause of action related to conduct/forum activity (Shoe) b.! Two Prong test: 1) Minimum Contacts; 2) TNFPSJ i.! Minimum contacts: 1.! Purposefully availed self to privileges and benefits by conducting activities in forum state (Hanson) 2.! Def. reasonably anticipated being haled into court there (WWVW) 3.! Examples: (see outline for rules p. 6-7) a.! Conduct directed at forum or contract i.! Contract considerations: nature of contractual relationship, reach out to make contract with resident of forum, prior negotiations, contemplated future considerations, terms of contract, choice of law provision in contract, forum clause, b.! Tortious act c.! Contact based on relationship with citizen in forum d.! Unilateral activity of a person e.! Stream of commerce ii.! TNFPSJ 1.! Where a defendant who purposefully has directed his activities at the forum resident seeks to defeat jurisdiction, he must present a compelling case that the presence of some other consideration would render jurisdiction unreasonable (Burger King; WWVW) 2.! The defendant must show that the forum is not only inconvenient, but unconstitutionally inconvenient because due process only guarantees a forum that is constitutional, it does not guarantee a convenient forum (Burger King) 3.! Due to the holding in Daimler, TNFPSJ only applies to Specific Jurisdiction, not General Jurisdiction 4.! Shoe established additional factors to make sure jurisdiction comports with due process: a.! 1) burden on the defendant (Burger King) !

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Civil Procedure Attack Outline b.! c.! d.! e.!

2) forum state’s interest (McGee) 3) plaintiff’s interest 4) interstate judicial interest 5) shared interest of the several states

7.! Step 7: General Jurisdiction Analysis a.! General jurisdiction can be exercised when the defendant’s forum activities were so continuous and systematic that they allow for the cause of action unrelated to the forum activities to be brought against them (Shoe) i.! Mere purchases, even if occurring at regular intervals, are not enough to warrant a State’s assertion of in-personam jurisdiction over nonresident corporation in cause of action not related to those purchase transactions (Helicopteros) ii.! To meet GJ, activities need to be so continuous and systematic as to render the defendant essentially “at home” (Goodyear) 1.! “At home” for corporations: a.! incorporated state OR b.! principal place of business (Goodyear) i.! Hertz defined as the corporation’s “nerve center” (Goodyear; Hertz) 2.! At home for a person: a.! Their domicile (Goodyear; Hertz) **Hertz=SMJ case** 3.! This is a difficult standard to meet, and a corporation’s presence in the forum, alone, does not allow for jurisdiction (Daimler) **see outline for TPJ and TA** 8.! Step 8: Subject Matter Jurisdiction: Diversity of Citizenship and Federal Question a.! Federal courts are courts of limited SMJ and only have specific amount of power to hear cases as granted by the constitution b.! Not a waivable (about balance of state and federal governments) c.! Diversity of Citizenship: 28 U.S.C. § 1332 i.! 2 requirements: 1.! Complete Diversity: all plaintiffs in suit must be of diverse citizenship from the defendants (Strawbridge) a.! Citizenship: i.! Citizen of US ii.! Domiciliary of the state 1.! True, fixed and permanent home and principal establishment to which he has the intent of returning to whenever he is absent therefrom (Mas v. Perry) b.! Changing Domicile: (Mas v. Perry) i.! Physical requirement: take residence in another state ii.! Mental requirement: Intent to remain there 1.! Additional factors considered: a.! Voter Registration b.! Purchase house c.! Payment of taxes !

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Civil Procedure Attack Outline d.! Getting job e.! In-state tuition c.! Businesses i.! Corporations are citizens of 1.! State incorporated in 2.! Principal Place of Business (only 1) a.! Hertz nerve center test (p. 14 outline) ii.! Non-incorporated Businesses: citizen of all the states of which its members are citizens (Belleville Catering) 2.! Amount in Controversy a.! Must be excess of 75k (Freeland) ie. Must be 75,001 not 75,000 b.! Plaintiff must make good faith allegation to satisfy AIC (St. Paul Mercy) c.! See outline for when can/can’t aggregate claims to meet AIC** (p. 15) d.! Federal Question: 28 U.S.C. § 1331 i.! Does the federal question appear on the face of the plaintiff’s well pleaded complaint? (Mottley) 1.! Only consider aspects of the complaint that are essential to the cause of action ii.! Does the civil action arise under Federal Law? 1.! Federal Law: American Well Works test a.! Suit arises under the law that creates the cause of action 2.! State Law (embedded federal question) a.! Substantial disputed question of federal law is necessary element of one of the well pleaded state claims (Franchise Tax Board) i.! Merrell Dow defines substantial as congress giving explicit or implicit right to sue b.! Grable 3 part test: i.! Does the state law claim raise a stated federal issue? ii.! Is the federal issue substantial and actually in dispute? 1.! Explicit/implicit right to sue Merrell Dow 2.! Govt has strong interest in deciding claim Grable iii.! May a federal forum hear the federal claim without disturbing the balance of federal and state responsibilities 1.! Don’t want to open the floodgates 9.! Step 9: Venue a.! Waivable like PJ, unlike SMJ b.! 28 U.S.C. § 1391 i.! civil action can be brought in: ii.! judicial district where any defendant resides, if all defendants are resident of the state in which the district is located 1.! Defining residency for venue purposes: !

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Civil Procedure Attack Outline a.! Natural person, including those admitted for permanent residence in US, deemed to reside in judicial district in which that person is domiciled i.! Domicile: same as Mas v. Perry SMJ definition b.! Any business, incorporated or not, can be sued in any district where def. subject to PJ; if plaintiff, where PPB is 2.! judicial district in which a substantial parts of the events or omissions that give rise to the claim occurred 3.! if no district in which an action may otherwise be brought, bring suit in any judicial district where defendant is subject to PJ (rarely used/last choice) 10.! Transfer of Venue (p. 24) a.! § 1404—venue proper but defendant wants to change the venue so court may transfer to place where suit might have been brought b.! § 1406—venue is improper and court unable to hear cause so can 1)transfer to where suit could have been brought 2) dismiss the case 11.!Forum Non-Conveniens (p. 25) a.! Occurs when US court not most appropriate venue to hear case and cannot transfer case out because other nations are own sovereignty so dismiss for forum nonconveniens 12.!Removal (p. 18) a.! 28 U.S.C. 1441 i.! defendant may remove action to the district court for the district and division where the action is pending (bears burden of proving SMJ) ii.! If removing based on SMJ under federal question § 1331 1.! May remove case regardless of parties’ citizenship 2.! May remove all claims that form part of the same case and controversy as the claim over which the court has § 1331 jurisdiction iii.! If removing based on SMJ under DOC § 1332 1.! Cannot remove to federal court if any defendant is citizen of the state in which the plaintiff filed suit iv.! Cannot remove claims that do not arise under the same set of facts b.! Procedures for removal § 1446 i.! 1446(b)(2)(A): 30 days after service to file for removal 1.! rule of unanimity—all defendants who have been properly served must agree to removal a.! 1446(b)(2)(c): if def. served at different times and last def. served files for removal, defs. Served earlier can consent to removal even though their 30 days may have passed ii.! 1446(c): requirements for removal based on DOC § 1332 1.! diversity must exist both when def. removes case and when the plaintiff files it in state court (Gibson) 2.! 1446(c)(1) removal based on def. being dismissed (within 1 year time period)—

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Civil Procedure Attack Outline a.! if plaintiff voluntarily dismisses non-diverse defendant, other def. can file for removal within 30 days of voluntary dismissal b.! court involuntarily dismisses defendant—cannot file for removal because dismissal could be reversed c.! 28 U.S.C. § 1447: Procedures after removal i.! § 1447(c): A motion to remand the case other than for lack of subject matter jurisdiction after the case has been removed to federal court must take place within 30 days after the filing of the notice of removal ii.! § 1447(e): If plaintiff seeks to join additional defendants after removal to federal court that would destroy subject matter jurisdiction, the court may deny their joinder (i.e. fraudulent joinder), or permit it and remand to State court 13.!Choice of Law (p. 25) a.! Rules of Decision Act § 1652: Addresses when federal statute on point i.! If federal statute, apply Erie & progeny 1.! Modified Outcome Determinative Test (Byrd) a.! Federal interest in applying federal rule b.! State interest in applying state rule c.! Likelihood that applying federal law will affect the outcome of the case i.! Will result affect one of the twin aims of Erie 1.! Discourage forum shopping 2.! Avoiding inequitable administration of the laws b.! Rules Enabling Act § 2072: FRCP i.! Is there a federal rule of civil procedure on point? Is there a conflict between the FRCP and state law (issue with how to interpret FRCP and state law to read it broadly—conflict, or narrowly—no conflict Shady Grove) 1.! Yes there is a conflict a.! Does the rule fall within the statutory authorization granted by § 2072 b.! Does the FRCP really regulate procedure? (Sibbach) i.! Has never had majority opinion overrule this ii.! Unlikely to be found to not really regulate procedure c.! Justice Stevens concurrence in Shady Grove—says that test should be (calls into question Sibbach but doesn’t overturn it) i.! Does it regulate procedure ii.! Does it “abridge, enlarge or modify any state substantive right?” (2072(b)) d.! **last majority was Sibbach but last time addressed was Shady Grove 2.! No conflict a.! Apply state law

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Civil Procedure Attack Outline

14.!Supplemental Jurisdiction (p. 21) a.! Congress passes § 1367 to codify Gibbs and overrule Finley i.! Gibbs: 1.! Claim arising under federal law (1331 jurisdiction) 2.! State and federal claim must arise from common nucleus of operative fact ii.! Aldinger/Owen: when court has SMJ to hear one claim, may entertain other claims that arise from the same nucleus of operative fact as the claim over which they have SMJ if Congress has not expressly or implicitly NEGATED supplemental jurisdiction 1.! Owen: § 1332 negated SMJ because no diversity and 1332 says must be diversity 2.! Finley: congress must explicitly authorize supplemental jurisdiction for PENDANT PARTY (not pendant claims( iii.! 1367(A) codifies Gibbs and overturns Finley 1.! Applying 1367(a) a.! Determine whether original jurisdiction over claim b.! Must determine whether the additional claims for which there is not 1331 oe 1332 jurisdiction form part of the same case in controversy i.! Whether arise from same nucleus of operative fact c.! If requirements for 1367(a) met, proceed to b and c iv.! 1367(b): only applies when original jurisdiction based on § 1332 1.! if § 1332 jurisdiction and claims brought against person under Rules 14, 19, 20, or 24 (Owen) or 2.! claims brought by persons coming in as plaintiffs under Rules 19 or 24 3.! THEN must meet requirements of § 1332 (complete diversity and amount in controversy) 4.! **upsloping claims not allowed unless meet requirements of 1332

Def. 2 (brought in by def. 1)

!!!!!

!Pl 1

def. 1 Suit based on 1332

v.! 1367 (c): discretion built into Gibbs codified 1.! can decline supplemental jurisdiction a.! claim raises novel/complex state issue

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Civil Procedure Attack Outline b.! claim substantially predominates over the claim or claims for which DC has original jurisdiction c.! DC has dismissed all claims in which had original jurisdiction d.! In exceptional circumstances, other compelling reasons for declining jurisdiction 15.!Federal Rules of Civil Procedure a.! Rule 4: (p. 34) i.! Must have copy of summons and complaint ii.! Each defendant must be issued service iii.! Service can be made by any non-party at least 18 years old iv.! 4(d)(1): may request def. waive right to service 1.! benefits: cheaper for plaintiff, def. does not waive any defenses, has longer time to respond to complain (60 instead of 20 days) v.! Breaking down rule 4(e)(2)(b) 1.! Individual’s Dwelling Place or Usual Place of Abode a.! P. 34—can have two or more dwelling houses 2.! Someone of suitable age (ambiguity with what is suitable age) a.! 13 not suitable age (Holmen) 3.! Who resides there a.! Service valid on resident doorman (Churchill) b.! Valid on apt. manager who lived in complex (Nowell) vi.! Serving corporation: 1.! Serve pursuant to state law or 2.! By delivering (handing not mailing) to officer/agent of co. AND mailing copy to each defendant b.! Defendant’s Response Options i.! Removal ii.! Answer (p. 35) 1.! Admit 2.! Deny 3.! Insufficient info to admit or deny 4.! Claims by defendant iii.! Motion 1.! Direct attack; if found to have PJ over you, must continue through litigation process iv.! Do nothing (p. 38-40) 1.! Collateral attack on PJ after default judgment entered c.! Rule 12 Motions

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Civil Procedure Attack Outline

d.! 12(b)(6) Motion: Failure to State a Claim a.! Legal Sufficiency—look at face of the complaint i.! Whether the plaintiff has alleged a claim recognizable by law a.! In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. (Conley v. Gibson) ii.! If facts are true, shows negligence – not just a mere legal conclusion 1.! Origami Chart—claim elements on one side; facts on other side that show how going to meet element of that claim iii.! The wrong that the plaintiff describes in his complaint is needs to be a violation of any legal right iv.! Court does not consider evidence that may support the allegations 1.! i.e. it does not look at disputed facts b.! Factual Sufficiency i.! What the complaint needs 1.! Detailed factual allegations generally are not required a.! “give def. fair notice of what claim is and grounds upon which it rests”—idea of notice pleadings 2.! Plaintiff must allege facts to each specific element showing she is entitled to relief 3.! A judge must accept all facts in the complaint as true 4.! The factual allegations in the complaint must be enough to raise a right to relieve above the speculative level 5.! Because of this, it used to be easy to show a claim of relief (until Twombly) ii.! Two Approaches 1.! Before Twombly it was easy to factual state your claim a.! A short plain statement may suffice due to example in Form 11 of FRCP a.! Dioguardi v. Durning : In FRCP: there is no pleading requirement of stating “facts sufficient to constitute a cause of action”, but only that there is a “short and plain statement of the claim showing that the pleader is entitled to relief”Rule 8(a)(2) 2.! Twombly/Iqball a.! Plaintiff must plead facts supporting a plausible claim even though Rule 8(a)(2) does not mention either b.! Twombly: Two principles i.! First, the court ignores conclusions of law and focuses on the allegations of facts 1.! The tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory !

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Civil Procedure Attack Outline statements a.! Need to allege facts which, if prove, would evidence of a state of claim-- It is not sufficient just to show legal conclusions, there must have plausibility behind it by alleging facts too ii.! Second: Determining whether a complaint states a plausible claim is context-specific requiring the reviewing court to draw on its experience and common sense (subjective approach of the courts) 3.! Applying Twombly a.! 1) Identify and disregard “legal conclusions” because they are mere conclusions are not entitled to the assumption of the truth” i.! Motion to dismiss for failure to state a claim is based on factual sufficiency (12(b)(6)) b.! 2) Assume the veracity of “well-pleaded factual allegations” and then determine whether they plausibly given rise to an entitlement to relief c.! left with tension between plausibility standard and no required to plead facts i.! On the one hand, the Supreme Court has adopted a “plausibility” standard, but on the other hand, it has insisted that it is not requiring fact pleading, nor is it adopting a single pleading standard to replace [current st...