Jurisdiction over the Parties or Their Property (jop)
§§ 1391, 1404, 1406, 1407
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| §§ 1391, 1404, 1406, 1407 Federal Actions – which federal district shall try the action
Not a substitute for JOP Three ways for venue in a particular district If any defendant resides in that district, and all defendants reside in the state containing that district Diversity and Fed Q Substantial part of the events giving rise to the claim occurred in the district Or substantial part of the property that is the subject of the action is situated If at least on defendant is reachable in the district and no other district qualifies Usually used for cases where events occurred abroad Diversity – venue in district in which any defendant is subject to JOP, if there is no district in which the action may otherwise be brought § 1391(a)(3) Fed Q – venue in which any defendant may be found if there is not district in which the action may otherwise be brought § 1391 (b)(3) Removal – a case removed from state to federal court passes to “the district court of the U.S. for the district and division embracing the place where such action is pending.” § 1441(a) Forum non conveniens – when D successfully moves for FNC, the original court transfers the case to another district rather than dismissing it. § 1404(a) – for the convenience of parties and witnesses…a district court may transfer any civil action to any other district or division where it might have been brought § 1406(a) – when a suit is brought in a district where venue is improper, the action may be transferred to a district where it might have been brought Mays till be transferred if lacking JOP Hoffman v. Blaski – D’s motion – transferred only to a district where P would have had the right, independent of the wishes of D to bring the action If the P could not have properly served the defendant in the transferee district, then transfer is not proper under the statute. Venue may be waived Van Dusen v. Barrack Choice of law – state law of the transferor court is to be applied by the transferee Ferens v. John Deere - law follows regardless of who initiates the transfer Piper Aircraft - A P may not defeat a motion to dismiss for FNC merely by showing that the substantive law that would be applied in the alternative forum is less favorable to him than that of the present forum. Gulf Oil v. Gilbert (p391) - factors to consider in FNC interest of the litigant, ease of access to proof, availability of compulsory process for attendance of unwilling witnesses, other practicalities that make trial “easy, expeditious and inexpensive.” public interest, judicial economy, jury duty as a burden on people of a community with no relation to the litigation, local interest in deciding local cases in that locality, hold trial where people interested are and can learn of it, have trial in place where law is familiar. Pleading See FRCP 8, 9, 10, 11, 12 esp. 12(b)(6) Generally Pleadings need not be verified (or sworn to) Exceptions Stockholders’ derivative action FRCP 23.1 Temporary Restraining order 65(b) Attorney must sign the pleadings Rule 11 If the lawyer knows the pleadings are not well grounded in fact, the court must impose an appropriate sanction – most commonly attorney’s fees to other side 21 day safe harbor to withdraw or modify challenged pleading and avoid sanction Alternative pleading allowed 8(d) Complaint Initial filing, filed by P, this commences the action (in diversity commencement for statute of limitations purposes depends on how state law defines commencement) Elements of complaint 8(a) Jurisdiction – short and plain statement on the grounds of jurisdiction Statement of the Claim Relief – demand for judgment for the relief Gillispie v Goodyear (p.555) - Pleadings should disclose what occurred, when it occurred, where, who did what, etc. Dioguardi v. Durning - P drew up his own complaint when Customs confiscated his wine The FRCP only require a complaint contain a short and plain statement of the claim showing a right to relief. Specificity – short and plain statement of the claim showing that he is entitled to relief. Factual detail is not high, gaps remedied by discovery Legal theory not required – need only state the facts, not the legal theory he is relying upon Prima Facie case need not be recited –P just needs to give enough facts to put D on notice about what is being alleged, it is irrelevant that the P has failed to allege some matter that he will ultimately have to prove in order to recover Conley p.562 - "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." Erickson p.577 - courts give more latitude for pleading for small claims, and non-lawyers "Specific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds on which it rests" Bell Atlantic v. Twombly (p. 568) telephone co. violating antitrust laws. In order for a complaint to survive dismissal on the pleadings, the complaint must include enough facts to state a claim to relief that is plausible on its face. Antitrust cases have a higher stander than other cases. Special matters that must be pleaded with particularity Rule 9 Denial of a party’s legal capacity to sue or be sued The circumstances giving rise to any allegation of fraud or mistake Any denial of performance or occurrence of the condition precedent The existence of judgments or official documents on which the pleader plans to rely Material facts of time and place Special damages Certain aspects of admiralty and maritime jurisdiction These apply to answer as well as complaint Responding to the Complaint (Answer) Motions against complaint Either in answer or in separate motion D may attack the validity of the complaint. Rule 12(b) Lack of jurisdiction over the subject matter Lack of jurisdiction over the person Improper venue Insufficiency of process Insufficiency of service of process Failure to state a claim upon which relief may be granted Failure to join a necessary party under 19 12(b)(6) – motion to dismiss for failure to state a claim upon which relief can be granted On the facts as P has pleaded, no recovery is possible under any legal theory This is generally made before D files his answer. If D has filed his answer and the pleadings are complete, D can accomplish the same result by making a 12(c) motion for judgment on the pleadings Garcia v. Hilton Hotels International, Inc. p.579 - 12(b)(6) On a motion to dismiss for failure to state a claim the complaint must be construed in the light most favorable to plaintiff with all doubts resolved in his favor and the allegation taken as true Plaintiff must only plead what he must prove in court American Nurses' Association p.603 - If a complaint’s allegations are ambiguous and one reading states a possible claim, the claim cannot be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The defendant can only move for the court to order the plaintiff to allege a more definite statement of the claim. Amendment – if the complaint is dismissed in response to D’s dismissal motion, P will almost always have the opportunity to amend 15(a) - Amendment of right – P may automatically amend, w/out leave of court any time before a responsive pleading is served, and motions made under 12(b) are not deemed to be responsive pleadings By leave of court – if D serves his answer before making a 12(b) motion and is successful, P may amend only if the court allows, which it almost always does 12(e) - D may move for a more definite statement 12(f) – if P has included redundant, immaterial, impertinent or scandalous material in the complaint, D may move to have this material stricken from the pleading 8(b) - Answer generally – D states in short and plain terms his defenses to each claim asserted, and admits or denies each count of P’s complaint Alt. Pleading – may also be pleaded in the alternative Rule 11 - Answer must be signed by D’s attorney Denials 8(b)(6) – those not denied are deemed admitted D may make general denial, denying each and every allegation (but then must contest all of P’s allegation or face sanctions) Specific denial – which denies all of the allegation of a particular paragraph or count of complaint Qualified denial – denial of a particular portion Denial of knowledge or info – which says D doesn’t have enough knowledge or info sufficient to form a belief as to the truth of P’s complaint (must be in good faith) Based on info and belief – I don’t know, but believe it is false Zielinski p.612 - Under Rule 8(b) of the Federal Rules of Civil Procedure, allegations in a complaint that are not specifically denied are deemed admitted. 8(c) - Affirmative defenses must be explicitly pleaded in the answer in order to raise at trial Most important Contributory negligence Fraud Res judicata Statute of limitations Illegality Any defense which relies on facts particularly w/in the D’s knowledge is likely to be found to be an affirmative defense Ingraham p.618 - Under Rule 8(c) of the Federal Rules of Civil Procedure, affirmative defenses listed in the rule or “any other matter constituting an avoidance or affirmative defense” that are not raised in the answer are waived. The major consideration behind the rule is preventing unfair surprise. 13(a) – Counter claim – compulsory if it “arises out of the transaction or occurrence that is the subject matter of the P’s claim” Time frames 12(a) Complaint – filing of complaint normally happens before it is served. Service must then normally occur before 120 days 4(m) Answer – must be served w/in 20 days after service of complaint except that If P has served D out of state, by long arm (4(k)(1)(A)) the time to answer allowed under that state rule controls Rule 12 motion – if D makes Rule 12 motion and loses, D has 10 days after the court denies the motion to answer Waiver of service – if D waives (4(d)), then he gets 60 days to answer running from the date the request for waive was sent by P 12(a)(1)(A)(ii) Reply to counterclaim – P must serve rely within 20 days after service of answer Reply “Answer to an answer” allowable if The answer contains a counterclaim (reply required) At P’s option, if P obtains a court order allowing a reply Amendments Federal Rules are liberal in allowing amendment of pleadings Amendment as of right - a pleading may be amended once as a matter of right Complaint – may be amended at any time before the answer is served (motion not the equivalent of an answer) Answer – may be amended once w/in 20 days after D has served it (if it contains a counterclaim, the answer may be amended until P has served reply) By leave of court – if above requirement are not met a pleading can only be amended by leave of court, or consent of the other side. But the court “ should freely give leave to amend when justice so requires” 15(a) – usually only denied if it will cause prejudice to the other side Beeck v. Aquaslide ‘N’ Dive - Under Rule 15(a) of the Federal Rules of Civil Procedure, a party can amend its pleading only with leave of court or consent of the other party. Leave shall be freely given. Leave to amend should only be denied if the party opposing the amendment can show bad faith, undue delay, or prejudice. Relation back – the amendment relates back to the date of the original pleading if they claims arose out the conduct, transaction or occurrence in the original pleading” – useful in meeting statute of limitations Action commenced – Rule 3 – on the date which the complaint is filed Change of party – only relates back if Same transaction or occurrence The party to be brought in by amendment received actual notice of the action before the end of 120 days following original service The new party “knew or shoud have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity” 15(c)(1)(C)(ii) Worthington v. Wilson - an amended complaint does not relate back to the original complaint where the amended complaint names Ds whose names were not known at the time the original complaint was filed. 15(c) requires the P “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought” against them. There was no mistake in this case, just lack of knowledge. Supplemental Pleadings 15(d) - Supplemental Pleadings Setting out any transaction, occurrence, or event that happened after the date of the pleading Some courts will allow new claims or substantially different claims in the interest of judicial economy Most courts will let it relate back under 15(c) even though supplemental pleadings are different Provisions to deter Frivolous Pleadings Surowitz v. Hilton Hotels - Party verifying a complaint as required by 23.1(b) is not required to verify the complaint on the basis of her own knowledge if she has been advised by a competent individual that the allegations in the complaint are true. This rule is in place to prevent ungrounded “strike suits.” Hadges v. Yonkers Racing Corp - Pursuant to FRCP 11, those facing sanctions must receive adequate notice and the opportunity to respond. Joinder of Claims and Parties Overview Cluster One: Basic Three Joinder of Claims Permissive Joinder of Parties Compulsory Joinder of Parties Cluster Two (Can have SMJ Problem) Counter Claim Cross Claim Third Party Claims Cluster Three Big Procedures Interpleader Intervention Class Action Cluster one: Joinder Joinder of Claims Federal Rules: Anything 18(a) – once a party has made a claim against some other party, he may then make any other claim he wishes against that party Any grievance against the D. does not have to be transactional related. Not out of the same substantive law background. ANYTHING may be joined. Not required, left at claimants option Harris v. Avery - A alleged H slandered him. H claims A stole a horse. P may unite causes of action when they arise from same transaction or transactions connected with the same subject matter. Rule 18- can join liberally, unless creates smj issues, the court may also separate claims if it would be easier for the jury. M.K. v. Tenet - Rule 18 permits joinder of all claims a party has against an opposing party. State Courts Split Same Transaction or Occurrence Auto accident Contract Property Pattern of Discrimination Conspiracy Anything Approach Permissive Joiner of Parties Rule 20 Two Part Test Any parties whose claims that as plaintiffs or whose potentially liability stems from the same transaction or occurrence. The claims/liability must create a common question of law or fact Joinder of P’s – Multiple P’s may voluntarily join Single transaction or occurrence Common Q of law or fact common to all P Joinder of D’s – same test, at P’s option Jurisdiction JOP – joinder of multiple D’s JOP must be met with each D individually and be personally served SMJ – All Parties must meet Fed SMJ. Supplemental Jurisdiction generally does not apply to joinder of multiple D’s; it only partially applies to Multiple P’s Complete Diversity – Aggregation where one P meets amount Tanbro v. Beaunit (p. 685) The term “same…transactions or occurrences” does not require the parties to have identical duties and obligations to the plaintiff. Joinder should be liberally granted under the new rule if it would be more convenient to try the cases together. Compulsory Joinder of Parties Rule 19 Three Levels of Analysis (in order) Who MUST be joined? 19(a) Necessary Parties – must be joined if jurisdictionally possible Intended to avoid prejudice to two classes of people: Impaired interest - If you don’t get the outsider in, it’s the outsider who will be hurt by prejudice Exception Torts: Joint and Several Liability =don’t have to join all Incomplete relief - If you don’t get the outsider in, the insider will be hurt (that person already in court) by not getting effective relief After deciding that the outsider should be joined and it appears that the outsider can’t be joined because there is lack of jurisdiction. Deal with the issue of SMJ or Personal JXN Once someone is an indispensable party, but there’s no JXN, you have to dismiss. However, FRCP 19(b) says that the Court should try to go forward the best it can. You shape relief. Exceptions where you’ll dismiss Land partition Provident Tradesman Bank v. Patterson - Under Rule 19(b) there is a concern about prejudice to parties from not joining a party. Look at several factors: P in having a forum D may wish to avoid multiple litigation or inconsistent relief Interest in outsider who wished to join Interest of courts and public. Counter-Claims/Cross Claims/ Third Party Claims (Impleader) Counter Claim (D Returning Fire) Compulsory 13(a) A counter-claim that arises out of the same transaction or occurrence that is the subject of the main claim or a related series of transactions or occurrences Efficiency device: You avoid multiplicity of litigation If not asserted it is waived. You cannot assert it in a subsequent action. Rides the coattails of the base claim Gets supplemental jurisdiction: Series of same transactions or occurrences 1367(a)/Gibbs Bypass amount in controversy rule Bypass the complete diversity rule Heyward-Robinson Co. p.658 - Counterclaims need only have similar circumstances to the subject matter of the litigation in order to be compulsory. There need not be identical facts. Failing to assert your claim in the first instance bars you from bringing it in the future (if it is a compulsory counter claim) Permissive 13(b) Anything Else; Anything that is not transactionally related. Does not get Supplemental Jurisdiction automatically The Cross Claim: A claim between two co-parties = doesn’t cross the v. (FRCP 13(g)) Must arise out of the same transaction or occurrence Probably in line with gibbs and § 1367(a) Takes supplemental jxn Is not excluded by 1367(b) Lasa p.668 Test: Logical relationship between the cross-claims and the transaction or occurrence that is the subject matter of the complaint and the two pending counterclaims Transaction or occurrence tests p.663 note 2 Issues of fact and law the same? Would res judicata bar a subsequent suit Will substantially the same evidence support or refute claims? Logical relation between claim and counter claim Third Party Claims (FRCP 14). Sometimes called Impleader/Third party Practice The action over for indemnification or contribution. Each party pointing a finger at someone down the line. Brings in a third party defendant Jeub v. B/G Foods - P claimed he got sick from eating at D1’s restaurant. D1 disclaimed negligence and blamed D2. If the 3rd party D is or may be liable to D, then D can implead 3rd Party D rather than wait until after the law suit to bring a new lawsuit. Determine rights of all parties and avoid subsequent independent actions Too, Inc. v. Kohl's p.707 Whether to grant leave to implead Whether the movant deliberately delayed or was derelict in filing the motion (good faith) Whether impleading would unduly delay or complicate the trial Whether impleading would prejudice the third party defendant Whether the third party complaint states a claim upon which relief can be granted Third Party Claims requiring brining in a new Plaintiff or Defendant Here is some backdoor questioning: JXN Notice Service of Process Supplemental JXN 1367(b) Excludes Rule 14. But! It only excludes Rule 14 situations brought by the original plaintiff. Rule 14(a)(3) allows the original plaintiff to bring an action against a 3rd party defendant. This is what is being knocked out of supplemental jxn. Big Procedures – Interpleader/Intervention/Class Action Interpleader A technique whereby a party who owes something to one of two or more other persons, but isn’t sure which, may force them to argue out their claims among themselves before coming to sue him. It is designed to prevent the party from being made liable to the same claim twice. Hancock v. Independent Distributing If adverse claimants both claim the right to the same debt or property, the party owing the debt/holding the property can interplead both claimants and force them to litigate the issue of which claimant has superior claim to the debt/property. New York Life v. Dunlevy - P had a judgement entered against her intrests in PA over a life insurance claim. One of the parties tried to implead her there, but it was not valid b/c PA did not have personal jxn over her. State court needed to have personal jxn over both parties Types of Interpleader in Federal Courts Statutory Interpleader Directory: sites -> www.phideltaphi.org -> resource -> collection -> EA88E61A-F827-4590-985B-EC1F412EAE4E sites -> Glossary for Chapter 1 Algorithm sites -> North Carolina Inclusion Initiative Mapping Where Children with ieps are Being Served Purpose sites -> Northern England’s set-jetting locations sites -> Physical custody of 1033 program property accountibility form statement of Physical Custody: By signing for the below 1033 property I am a Law Enforcement Officer of the aforementioned Law Enforcement Agency sites -> Nstructions for Acquiring Excess Equipment online, through the 1033 Program sites -> Memorandum of agreement EA88E61A-F827-4590-985B-EC1F412EAE4E -> Five Juicy questions where the heck does property go upon death of decedent? Download 321.23 Kb. Share with your friends:
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