Civpro Attack Outline 1m4m4e

CHECKLIST Personal Jurisdiction a. Statutory b. Constitutional 2) Notice (Service) – 4 3) SMJ – §1331, 1332, 1367, 1441/46/47 a. DivJ, FQJ, Supplemental, Removal 4) Venue – §1391, 1404/06 5) Erie Doctrine 6) Pleadings – 8, 11, 12, 15 a. Complaint, Response b. Amendments 7) der – 13, 14, 18, 19, 20, 22, 24 a. Permissive Claim J, Counter-, CrossClaim, Permissive Party J, Compulsory, Impleader, Intervention, Interpleader, Class Action 8) Pre-Trial Adjudication –41, 12, 56 a. Voluntary/Involuntary Dismissal, 12(b)(6) Dismissal, Summary Judgment 9) Preclusion Doctrines 1)

Assess SMJ on every claim filed in fed. ct. Forum Selection = PJ + Notice + SMJ + Venue PERSONAL JURISDICTION General 1) ∆ has continuous and systematic s with the forum (“at home”) (GY, Daimler) Specific 1) Served with process in forum 2) ∆’s agent is served w/ process in forum 3) ∆ is domiciled within the state 4) Consent to PJ - express, implied, waived Statutory Test 1) Is there a Long-Arm Statute? a. BULGE: if w/in 100m of ct. if ed under 14 or 19 2) Statute for PJ over tortious act? a. Where mfr’d v. where injured Constitutional Test 1) Tag “Transient” Jurisdiction (Burnham) a. traditional basis of presence (Pennoyer) is enough for PJ b. Traditional AND International Shoe is necessary (O’Connor) International Shoe Standard 1) Minimum s a. Purposeful Availment i. Reached out to forum in some way; invoked benefit/protection of laws b. Claim arose from in forum c. Need more than Stream of Commerce i. Seek to serve (i.e., ads, deg product) (Asahi: SOC+) d. # of s vs. quality of s i. Cannot be based only on purchases and sales; physical presence 2) Fair Play and Substantial Justice a. Foreseeable: reasonably anticipate to be haled into ct. b. Burden on ∆ to show inconvenience c. ∆ burden, state interest, legal sys. interest, shared substantive policies Electronic (Website) 1) Active, conducts business = PJ 2) ively in market, only info ≠ PJ In-Rem/QIR(1&2) Attach as PJ basis must do at beginning; QIR2 DNE, attach must relate to property

NOTICE – RULE 4 Served by person non-party at least 18 Must be served w/in 90d w/ process: summons + complaint Serving an Individual 1) Personal Service 2) Substituted Service a. Dwelling/usual place of abode b. Suitable age/discretion, resides there 3) Serve ∆’s agent Serving a Corporation 1) Officer or managing or general agent Ct. can serve however/wherever state ct. can Waiver of service 1) π can request ∆ waive service 2) ∆ must have good reason to not waive or else pays cost 3) If waived = 60d to respond to complaint instead of 21d, 90d if outside US Notice must be reasonably calculated to inform D – newspaper = last resort (Mullane) SMJ (assess for every claim filed in fed ct!) Diversity Jurisdiction (DivJ) – §1332 1) Complete Diversity Rule: π ≠ ∆, all πs citizens of diff. states than ∆s 2) Diversity of Citizenship a. Individual: US citizen and where domiciled (physical presence in state + Intent to remain) b. Corp: dual citizenship – PPB (nerve center) + state of incorporation 3) Amount in Controversy >$75K a. Cannot aggregate if multiple parties unless t claims Fed. Question Jurisdiction (FQJ) – §1331 1) Case arises from under fed law 2) Well-Pleaded Complaint Rule a. Is the Cause of Action st. or fed.? i. If fed. = FQJ, If st. = go to (b) b. State CoA incl. fed. ingredient? i. No = no FQJ, Yes = FQJ c. Matter of fed. concern? i. Actually disputed/substantial? ii. Affect balance b/w fed. & st.? Supplemental Jurisdiction (SJ) – §1367 1) Does §1367(a) grant SJ? a. YES if claim arises from same case/controversy; or, “fed hook” b. Unless (b) â 2) §1367(b) takes away SJ = NO SJ (only in diversity cases): a. π claim against party ed by R:14, 19, 24 (StarKist/Allapattah – 20, 23) b. Claims by R:19 compulsory πs c. Claims by R:24 intervener πs Removal – §1441, 1446, 1447 1) All ∆s must agree 2) ∆ cannot remove if it's a diversity claim in state of citizenship (needs SMJ) 3) ∆ 30 days to remove, runs when served 4) Lawsuit is removed to embracing fed. ct. VENUE Venue in Div/non-Div cases – §1391 1) where any ∆ lives if all ∆ in same state 2) where substantial part of event occurred 3) FALLBACK: where any ∆ is subj. to PJ (div); or where any ∆ can be found (non) 4) “residency” a. individual: domicile b. corporation: wherever subj. to ct. PJ

Transfer – where there is PJ over ∆ §1404 – initial venue is proper 1) Take transferor (ct. #1) ct.’s laws, choice of law travels w/ proper (Van Dusen) 2) Discretionary: convenience of parties, witnesses, and interest of justice §1406 –initial venue is improper/no PJ 1) Take transferee (ct. #2) ct.’s laws 2) Only transfer where PJ/app. venue 3) Ct. can dismiss/transfer to proper Forum Non Conveniens 1) Properly filed but the ct. dismiss b/c more appropriate venue (convenience) a. State to other state, US to foreign ERIE DOCTRINE Fed. ct. should apply st. substantive law 1) Conflict between st. and fed. law? 2) Valid fed. rule on point? (Hanna 2, REA) a. YES: use fed. procedural law 3) If NO: state v. fed. interest? No countervailing fed, apply state (Hanna 1, RDA) a. Twin Aims: forum shopping & inequity b/c of citizenship (Erie) b. State law is bound up w/ rights obligations of parties = substantive c. Constitutional interest? (Byrd) PLEADINGS Complaint – RULE 8 1) Grounds for SMJ 2) Short/Plain statement of the claim a. Twiqbal: π must plead facts (allege) ing a plausible claim; b. Factual allegations as true; fraud or mistake allegations needs more facts c. Judge uses judicial xp, common sense 3) Demand for relief sought Response – RULE 12 Within 21d, unless waived = 60d; 90d (R4) Methods of Response 1) Motion to Dismiss (RULE 12(B)) a. Defenses 12(b)(1) Lack of SMJ - never waived (b)(2) Lack of PJ (b)(3) Improper Venue (b)(4) Insufficient process - prob w/ doc (b)(5) Insufficient service of process-not properly served (b)(6) Failure to state a claim (b)(7) Failure to party under RULE 19 à NOTE: 2-5 must be infirst response or waived; 1, 6-7 anytime b. Answer i. Must respond to claim 1. it, deny (explicitly stated) 2. Lack of knowledge = denial 3. Failure to deny = ission ii. Affirmative defenses (RULE 8): raise new matter or inject new fact (SOL, RJ/CE) 1. Must plead or waived SLIME – Rule 11: sanctions; signed pleadings (attorney screws up: stupidity, laziness, ignorance, malice, evasion) Amended Pleadings – RULE 15 1) π can amend once before ∆ response 2) ∆ can amend once w/in 21d of answer 3) If no right to amend, ct. may freely give 4) Relation Back: amend after SOL run, “same T/O” test, proper ∆ should have known (Krupski v. Costa Crociere)

DER (assess SMJ for every claim filed in fed ct!) Proper Parties Permissive – RULE 20(A) – IPJ/SMJ/V? 1) Parties ed as πs/∆s if 2) Assert right to relief that arises from same T/O or series of T/O 3) At least one common Q of law/fact à NOTE: misder ≠ dismissal; ct. should sever (R21) Compulsory/Necessary – RULE 19 Necessary/indispensable/required party? 1) No complete relief w/o absentee 2) Absentee interest would be impaired 3) Absentee interest would be subj. to multiple/inconsistent obligations à NOTE: t tortfeasors not necessary! der feasible? 1) IPJ ok? Retain SMJ? (check DivJ) a. YES: party must be ed 2) NO: does court dismiss/proceed? a. Prejudicial? Adequate judgment? Most imp’t: will π have remedy? 3) If party determined indispensable and can’t be ed, then court dismiss (rare) 3P Practice Impleader – RULE 14 – SJ or SMJ 1) 3P∆ may be liable for all/part orig. π’s claim against orig. ∆, file complaint 2) Timing: w/in 14d, or need ct.’s permit 3) SJ governs for 3P∆ to 3pπ (orig ∆) 4) π against 3P∆? NO SJ (R14 not ok!), needs SMJ (“same T/O” as orig. claim) Intervention – RULE 24 1) Party assert or defend claim (check SMJ) 2) Motion must be timely = not disruptive 3) Right: absentee legal interest impaired if not ed; adequate rep? 4) Permissive: absentee claim/defense has at least 1 common Q of law/fact π Plaintiff Claim der Permissive Claim der – RULE 18 1) π can all the claims (SMJ) ∆ Defendant Claim der Counter-Claim – RULE 13(A), (B) – SJ? 1) Compulsory – 13(a) a. Against opposing party, no new party b. Same T/O as π’s claim c. Must assert or waive 2) Permissive – 13(b) – IPJ/SMJ/SJ? a. state any claim against opposing party b. R18 only works for party once they successfully add claim via R13(a)/(b) Cross-claim – RULE 13(G) - permissive 1) Against co-party (same side of “v.”) 2) Same T/O as underlying dispute Interpleader – RULE 22, §1335 Stakeholder force all potential claimants into single case, party may file defensive if sued first (through R13 counter-claim) 1) Rule (narrow): complete div, no deposit, status quo IPJ/SMJ/V, rare injunction 2) §1335 (broad): minimal div, need deposit stake; AIC>$500, §1397 for V, §2361 SOP, IPJ, and injunction possible Class Action – RULE 23 Pre-reqs for certification: 1) Numerosity 2) Commonality 3) Typicality 4) Adequacy

Types (need at least one): 1) Prejudice: mandatory, NO notice, NO opt-out; incompatible standards for ∆, limited funds (small pool of $) 2) Injunction: mandatory, NO notice, NO opt-out; decl. relief benefits all πs 3) Damages: notice, opt-out; common Q predominate individual questions; class is superior method to resolve suit a. Notice: class rep must give notice to all reasonably ID-able b. SMJ: look @ rep for AIC, citizenship PRE-TRIAL ADJUDICATION Voluntary Dismissal – RULE 41(A) 1) Dismissal signed by all parties 2) Ct. order (discretionary) 3) π dismiss w/o prejudice once by notice of dismiss before ∆ respond (answer, MSJ) Involuntary Dismissal – RULE 41(B) w/ prejudice if ct. decides; “on the merits” unless lack IPJ/SMJ, improper V, failed to necessary party (R19) à happens if π fails to move forward/prosecute; ∆ can MTD RULE 12(B)(6) Dismissal 1) Ct. does not look at evidence, only face a. Claim where ct. might grant relief? b. Legally sufficient claim? Summary Judgment – RULE 56 1) Ct. looks at evidence 2) Moving party must show: a. No dispute of material issue of facts b. and entitled to JMOL 3) Evidence provided by parties a. Evidence acquired under oath b. Not include pleadings 4) Timing: any time except 30d after close of discovery PRECLUSION DOCTRINES (RJ) Claim Preclusion One case to vindicate claim 1) Valid & final judgment? a. Majority: final even if appeal pending or time has not expired b. Minority: appeal has ed 2) “on the merits”? a. can refile if dismissed on procedural (lack IPJ/SMJ, improper V, failed to necessary party (R19) 3) Same claim (Transactional Test) a. Minority: primary rights = diff. claim per right invaded; “2-Disease” Rule 4) Same parties: same claimant v. same ∆/privity, same configuration (CE) Issue Preclusion (often loser as shield) 1) Valid & final judgment? 2) Identical issue: exactly the same issue 3) Actually litigated/decided 4) Essential to judgment: beware alt. holds 5) Party to be Bound: was in Suit #1 6) Mutual v. Nonmutual? Mutuality (Minority): party asserting CE must have been in Suit #1 Defensive: new ∆ v. old π (S1: π sues ∆1, π loses. S2: π sues ∆2, ∆2 pleads CE as shield/bar); OK if π had full chance to lit. Offensive: new π v. old ∆ (S1: π1 sues ∆, ∆ loses. S2: π2 sues ∆. π2 invokes CE as sword) 1) Could new π have ed S1? 2) Unfair to ∆? a. Stakes, inconsistent determinations of issue, procedural constraints

CASE LIST • Band’s Refuse: judge=neutral arbiter, pre-trial hearings, der, pleading amendmts IPJ - see PJ chart p. 5-6! Notice (Service) – 4 • Mullane: reasonably calculated to inform SMJ – §1331, 1332 FQJ • Mottley: FQJ must “arise under” fed law • Osborn: fed ct. can hear if fed element/issue • Skelly Oil: need fed law dispute b/w π and ∆ • Vornado: no plead fed counterclaim • Merrell Dow: state law w/ fed issue, mere presence of fed issue does not confer SMJ • Grable: IRS notice, 4-pt test upheld SMJ DivJ • Strawbridge: complete diversity for 1332(a) SJ – §1367 • Gibbs: “common nucleus”, same case/contro • Owen: R14 need complete diversity • Alla/StarKist: SJ over add’l πs who fail to satisfy AIC ok if still diverse, named π AIC > $75k, add’l claims if same case/contro Removal – §1441/46/47 Venue – §1391, 1404/06 • Atlantic Marine: transfer to enforce forum selection clause (FSC), uphold K validity • Ricoh: fed 1404 trumps state ban on FSC • Reyno: forum non conveniens test Erie Doctrine - see Erie chart p. 27! Pleadings – 8, 11, 12, 15 Complaint • Conley: notice plead, “no set of facts” • Swierkiewicz: “short & plain” statement • Twombly: plausibility pleading • Iqbal: no legal conclusions, no fact detail • Kopmann: alt. plead ok, honesty in pleading • Tellabs: PSLRA specificity/heightened pleading • Zuk v. EPPI: sanction, inquiry into fact/law Response • Darrah: default set aside for “good cause” • Crompton: ineffective denial = ission Amendment • Krupski: relate back, new ∆ should’ve known • Crompton: no amend, π would be prejudiced der – 13, 14, 18, 19, 20, 22, 24 Proper Parties • Kedra: police brutality, allow party der • Insolia: smokers, no der, not same T/O 3P Practice • Clark: 3P complaint proper for indemnity • Augenti: 3P & orig. suit need causal connect • Grutter: aff. action, intervention of right Claims • Wigglesworth: labor union, permissive CC needs independent jdx’l grounds Interpleader • SF v. Tashire: inappropriate, injunction to stake only, all suits need judgment Class Action • Hansberry: RJ no apply to absent class member if inadequate rep. in class action • Walmart: need commonality • Reno: aliens, appropriate injunction class • Castano: state law differ, mass torts disfavor Preclusion Doctrines • Moitie: RJ bars re-lit unappealed final jdgmt • Manego: “same claim” precluded (T/O test) • Lil’ Blue Goose: est. CE materiality grounds • Blonder Tongue: DCE ok (shield) • Parklane: offense OCE (sword) 2-pt test • Kremer: §1738 fed look at state preclusion law • Marrese: “implied repeal” 1738 only if in fed § • Semtek: R41(b) re: preclusion gets a new meaning: “w/ prejudice” FQJ=on merits, DivJ=depends on state law