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
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.
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 originalplaintiff.
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