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236 Cards in this Set
- Front
- Back
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Subject Matter Jurisdiction-
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Subject matter jurisdiction is the power of the court to hear and determine a particular type of claim or controversy
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General Principals of Federal Subject Matter Jurisdiction-
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a)Federal courts are of limited jurisdiction – they can only hear federal question cases and diversity cases
b)When a court finds that any claim in a complaint lacks its own independent basis for subject matter jurisdiction it must dismiss the claim. c.)Subject matter jurisdiction cannot be waived and it can be raised at any time (even for the first time on appeal) d.)Subject Matter Jurisdiction cannot be conferred by consent e)Because federal courts have limited subject matter jurisdiction a plaintiff must plead in his complaint the exact basis for which federal subject matter jurisdiction is asserted |
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Federal Courts have exclusive jurisdiction over the following types of cases-
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(a)Certain antitrust cases
(b)Patent and copyright cases (c)Bankruptcy cases (d)Admiralty cases |
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Concurrent Jurisdiction-
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Both the federal courts and the state courts can hear the case. Unless there is exclusive jurisdiction, concurrent jurisdiction is presummed.
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Federal Question Jurisdiction/ Arising Under Jurisdiction
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Federal courts can hear cases which arise under the Constitution, laws or treaties of the United States
(Basically the claims are based on federal law) |
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Constitutional Authority for Federal Question Jurisdiction/ Arising Under Jurisdiction says-
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the case can be heard in federal law so long as there is some ingredient of federal law- this is a broad reach
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The statutory authority for Federal Question Jurisdiction/Arising Under Jurisdiction-
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Section 1331
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What does the statutory authority for Federal Question Jurisdiction/Arising Under Jurisdiction say
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must turn on a substantial issue of federal law. This is a limitation on the constitutional authority for federal question jurisdiction
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Test for Federal Question Jurisdiction/Arising Under Jurisdiction-
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Well Pleaded Complaint Rule
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Well Pleaded Complaint Rule (Mottley Rule)-
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a claim does not arise under federal law unless it appears on the face of a well pleaded complaint. This means that a substantial federal issue must be raised as a legitimate part of the plaintiff’s cause of action.
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Elements of Well Pleaded Complaint Rule
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(1)The plaintiff must allege the complaint that pertains to federal law
(2)The federal aspect must be a substantial issue: (so that the plaintiff cannot manufacture federal question by anticipating a federal defense) |
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Policy of the statutory limitation in Federal Question Jurisdiction/Arising Under Jurisdiction (Grable and Sons test)
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(i)The court must consider avoiding interference with state court jurisdiction
(ii)The need for uniform interpretation of federal law (iii)Avoid the risk of bringing in too many claims to federal court |
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Definition of Diversity of Citizenship-
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: the federal district courts have original jurisdiction over all civil actions where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs and the controversy is between:
1.Citizens of different states or 2.Citizens of a state and citizens or subjects of a foreign state 3.Citizens of different states and in which citizens or subjects of a foreign state are additional parties 4.A foreign state, as plaintiff, and citizens of a state or different state |
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The divisity of citizenship requires that the claim be between-
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Citizens of different states or
2.Citizens of a state and citizens or subjects of a foreign state 3.Citizens of different states and in which citizens or subjects of a foreign state are additional parties 4.A foreign state, as plaintiff, and citizens of a state or different state |
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Rationale of diversity of citizenship requirement-
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To protect out of state citizens from local prejudice in state courts
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Elements of Well Pleaded Complaint Rule
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(1)The plaintiff must allege the complaint that pertains to federal law
(2)The federal aspect must be a substantial issue: (so that the plaintiff cannot manufacture federal question by anticipating a federal defense) |
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Policy of the statutory limitation in Federal Question Jurisdiction/Arising Under Jurisdiction (Grable and Sons test)
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(i)The court must consider avoiding interference with state court jurisdiction
(ii)The need for uniform interpretation of federal law (iii)Avoid the risk of bringing in too many claims to federal court |
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Definition of Diversity of Citizenship-
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the federal district courts have original jurisdiction over all civil actions where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs and the controversy is between:
1.Citizens of different states or 2.Citizens of a state and citizens or subjects of a foreign state 3.Citizens of different states and in which citizens or subjects of a foreign state are additional parties 4.A foreign state, as plaintiff, and citizens of a state or different state |
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The divisity of citizenship requires that the claim be between-
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Citizens of different states or
2.Citizens of a state and citizens or subjects of a foreign state 3.Citizens of different states and in which citizens or subjects of a foreign state are additional parties 4.A foreign state, as plaintiff, and citizens of a state or different state |
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Rationale of diversity of citizenship requirement-
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To protect out of state citizens from local prejudice in state courts
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Rationale behind the amount in controversy requirement of diversity jurisdiction-
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judicial economy
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Definition of the amount in controversy requirement of diversity jurisdiction
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the sum claimed by the plaintiff in his complaint controls if the claim is made in “good faith” of over $75,000.
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The good faith element of the amount in controversy requirment of diversity jurisdiction-
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(1)Good faith is determined at the time the plaintiff makes the claim.
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If the amount in controversy is not a monetary claim the courts will use the following tests (they will use both tests and go with the higher monetary value)
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(a)Value of the object test (to the plaintiff)
(b)Loss to the defendant test |
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When will a claim be dismissed on amount in controversy-
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if it appears to be a legal certainty that the plaintiff cannot possibly recover in excess of $75,000.00
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When isnt there a good faith amount in controversy claim-
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when the defendant cannot recover to a legal certainty
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What is a legal certainty (when the defendant cannot recover due to amount in controversy)-
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Statutory caps placed on certain types of claims. This limits the amount that a plaintiff can recover for certain claims.
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Is diversity jurisdiction lost of the defendant ultimatley recovers for less than $75,000-
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No.
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Can the court do anything if the plaintiff ultimately recovers for less than $75,000
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(1)The courts may penalize the plaintiff by refusing to award him costs or imposing costs upon him.
(2)The court will not dismiss |
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Definition of Aggregation-
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only seen when there are different claims that need to be added up
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When can a defendant agreggate claims-
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(1)A single plaintiff may aggregate all his claims against a single defendant to meet the requisite amount in controversy requirement.
(2)Plaintiffs may only aggregate if their claims are based upon a common undivided interest. (3)The US Supreme court held that where one plaintiffs claims exceed $75,000.00 and a second plaintiffs claim against the same defendant is less that $75,000.00, district courts can exercise supplemental jurisdiction over the second plaintiffs claim (4)A plaintiff suing multiple defendants cannot aggregate his claims unless the defendants are jointly liable to the plaintiff, as where the plaintiff sues individual partners of a partnership for damages in excess of $75,000.00. |
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When can two or more plaintiffs not agreggate claims-
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If their claims are separate and distinct. Even if the claims are factually related they may be distinct and separate
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What is an example were the claims are factually yet are seperate and distinct
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class actions- each member of the class with separate and distinct claim must meet the amount in controversy requirement
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Do supplemental claims have to meet the amount in controversy requirements-
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The supplemental claim does not have to meet the amount in controversy requirement
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Elements of diversity jurisdiction
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1. Amount in controversy
2. Domicile |
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Authorites behind the domicile requirement of diveristy of citizenship-
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1. Constitution
2. Statutory Authority 1331 |
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Statutory Authority (1331) for the domicile requirement of the diversity of citizenship-
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requires complete diversity (no member of the defendants side can be from the same state as a member from the plaintiffs side)(a) Were the jurisdiction is based upon diversity of citizenship, diversity between plaintiffs and defendants must be complete meaning that no plaintiff may be a citizen of the same state as any one of the defendants.
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Consitutional Authority for the domicile requirment of diversity of citizenship-
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requires minimal diversity when as long as one of the plaintiffs is from a different state than one of the defendants
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Definition of National Individual citizenship of the state
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The party must be a citizen of the United States (One who is not a citizen may be able to invoke “alienage” jurisdiction)
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Definition of State Individual citizenship of the state
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The party must be domiciled with the state:
1. The person physically resides in the state 2. An intent to remain for the indefinite future 3. A person keeps his domicile until he requires a new one |
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Definition of the element "the person must physically reside in the state" for domicile requirement of diversity of citizenship-
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(i) The person must actually have a fixed and permanent home in the state. It is not enough that the person intends to make the state his permanent home, if he has not yet physically established a place to live in that state
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Definition of the element "the intent to remain for an indefinite future" for domicile requirement of diversity of citizenship-
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Factual based inquiry -looks at common sense indicators (Whether the health insurance is, or where the drivers license is located)
(i)Examined at the time the complaint is filed-subsequent changes are irrelevant |
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Citizenship of a corporation for the domicile requirement of diversity of citizenship-
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A corporation is deemed to be a citizen of any state in which it is incorporated and of the state in which it has its principal place of business.
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Where is the state of incorporation (when determining the citizenship of a corporation for the domicile requirement for diversity of citizenship)-
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Look to the articles of incorpoation- can be numerous
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Where is the principal place of business(when determining the citizenship of a corporation for the domicile requirement for diversity of citizenship)-
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a corporation can only have one principal place of business.
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The principal place of business for a coprorations domicle (a requirement for diversity jurisdiction) is determined though:
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Corporate headquarters test (Nerve center test)
Bulk of activities test (Muscle test) |
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Define the Corporate head quarters test aka the nerve center test for the domicile requirement for corporations in diversity of citizenship-
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where the corporation is headquartered
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Define the Bulk of Activities test aka the Muscle test for the domicile requirement for corporations in diversity of citizenship-
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were the corporation conducts most of its business or produces the majority of its products or services
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The domicile (the requirement of diversity jurisdiction) of unincorporated associations: Parternships ect.-
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(1)Citizens of every state where a member is domiciled
(2)Hypo: you take the citizenship of all the partners (limited and general) and ascribe them to the business—the more citizenships you have the harder it is to have diversity of |
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Domicile component of Class Action Suits in Diversity Jurisdiction-
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Only the citizenship of the named class representatives comes into consideration
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Can you contrive to make citizenship
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No. You cannot pay someone to bring suit for the sake of creating diversity
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When is diversity jurisdiction determined?
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At the time the action is commenced.
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Do you need diversity jurisdiction to continue after the action has commenced?
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No
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Definition of supplemental jurisdiction-
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Federal courts determined that they had the power to hear certain non-federal (State Claims), non-diversity claims (claims that lack and independent basis for subject matter jurisdiction) which are related to claims, which do have an independent basis for subject matter jurisdiction, in order that the entire controversy may be adjudicated in one federal lawsuit rather than multiple lawsuits.
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Rational of Supplemental Jurisdiction-
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judicial economy and convenience
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When is supplemental jurisdiction needed-
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1. Only needed when the claim does not have an independent basis for subject matter jurisdiction. Thus carefully check each claim given to you in the facts and ask yourself whether that particular claim is supported by either federal question or diversity jurisdiction
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Supplemental jurisdiction authority-
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Constitution Section 1367 Subsection A,B,C
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Constitution Section 1367 Subsection A-
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Gives general power
a) The federal courts have subject matter jurisdiction over any claim that is sufficiently related to the claim before the court. (1)The claims must be from the same case or controversy (2)Common nucleus of fact- Must be factually and legally tied together |
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Constitution Section 1367 Subsection B-
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Limitations on supplemental jurisdiction- the court has NO jurisdiction if ALL requirements are satisfied)
a)Requirement 1: must be a diversity claim b)Requirement 2: plaintiff must bring the claim c)Requirement 3: the plaintiffs claim must be one of the following types 14,19,24 d)Requirement 4: this claim will destroy diversity between the parties |
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Consitutional 1367 Subsection C-
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When the court has discretion not to use supplemental jurisdiction:
a)The claim raises a novel or complex issue of law b)The state claim substantially predominates over the claim or claims over which the district court has original jurisdiction c)The district court has dismissed all claims over which it has original jurisdiction d)In exceptional circumstances, there are other compelling reasons for declining jurisdiction (cannot simply be to much work) |
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Situations in which discretion can be used not to have supplemental jurisdiction-
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POND:
a)The claim raises a novel or complex issue of law b)The state claim substantially predominates over the claim or claims over which the district court has original jurisdiction c)The district court has dismissed all claims over which it has original jurisdiction d)In exceptional circumstances, there are other compelling reasons for declining jurisdiction (cannot simply be to much work) |
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Definition of Removal Jurisdiction-
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Where the plaintiff has brought the suit in state court, the removal statute permits the defendant to force the case to be transferred to federal district court only if the case could have originally been brought in federal court (i.e., the federal court must have federal subject matter jurisdiction over the case)
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Who bears the burden of proof for Removal Jurisdiction?
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The defendant
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General Limitations on Removal Jurisdiction-
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1.There must be a basis for subject matter jurisdiction at the time of removal
2.All defendants must agree to removal of the case and only defendants can remove. 3.Notice of removal must be filed within 30 days of the date the defendant receives a copy of the initial pleading unless the case becomes removable later (as by dismissal from a nondiverse party), in which case the case may be removed within 30 days of the date it becomes removable 4.A case may not be removed from federal to state court |
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Exception to the General Limitation on Removal Jurisdiction (All defendants must agree to removal of the case and only defendants can remove).
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when the ground for removal is a separate and independent claim only the defendant against whom this claim is asserted need seek the removal.
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Exception to the General Limitation on Removal Jurisdiction (Notice of removal must be filed within 30 days of the date the defendant receives a copy of the initial pleading unless the case becomes removable later (as by dismissal from a nondiverse party), in which case the case may be removed within 30 days of the date it becomes removable-
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a case is removable on diversity grounds may be removed only within one year after it is brought to state court.
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When can a claim be removed to federal court based on diversity?
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where the sole basis of federal subject matter jurisdiction over the case is diversity jurisdiction, the case can be removed only if none of the defendant’s is a citizen of the forum state.
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What is the rationale behind removing a claim based on diversity jurisdiction?
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no home- court disadvantage
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When can a claim be removed based of federal question jurisdiction?
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where the basis for federal subject matter jurisdiction includes federal question jurisdiction the case may be removed without regard for the citizenship of the parties
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Define Personal Jurisdiction
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personal jurisdiction is the power or authority of the court to render a judgement that binds the person of the defendant.
1.The means by which a plaintiff seeks to assert personal jurisdiction is to serve a summons on the defendant. 2. A service of summons (or process) is the means by which the court symbolically seizes the defendants person |
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General Approach to personal jurisdiction-
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1.Does the particular act or conduct of the defendant fall within the scope of the long arm statute
2.Assuming the statute applies, is it constitutional under the Due Process Clause for the court to assert personal jurisdiction? |
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Authority beind the Long Arm Statute-
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Federal Rules of Civil Procedure- Rule 4
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Federal Rules of Civil Procedure- Rule 4
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(1) Authorizes nationwide service of process of a summons in federal court where specifically authorized by federal statute
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Types of Long Arm Statues a requirement of personal jurisdiction
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Laundry List Long Arm Statues
Non Specific Long Arm Statues (Due Process Long Arm) |
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What is a specific long arm statute or launry list long arm statute-
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base the assertion of personal jurisdiction over non residents upon the commission of certain acts by the defendant in the forum state
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What is a non-specific long arm statute or due process long arm-
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authorizes state courts to assert personal jurisdiction to the full extent allowed under the Due Process Clause
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Exam tips for long arm statues:
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the exam will usually state the terms of the states long arm statute. If the exam gives you a specific act long arm statute, then you will have to apply the specific terms of the statute to the facts relating to the defendants contacts within the forum. If the exam does not give you a long arm statute, then assume that one exists and that its terms would allow the court to assert personal jurisdiction.
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How to satisfy the due process requirement for personal jurisdiction-
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1. Personal Service
2.Domicile 3. Consent 4. Minimum Contacts |
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Define the personal service element of the due process requirement for personal jurisdiction-
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1. Territorial Rule
2. Tag Jurisdiction |
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Define the Territorial Rule
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Every state possesses exclusive power and sovereignty over persons and property located within its territory and may assert that power over any defendant. Conversely, a state may not acquire personal jurisdiction by service of process outside the forum state on a non-resident defendant.
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Define Tag Jurisdiction-
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in state service of process on a non-resident defendant who is only briefly in the forum state
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Define the Domicile element of the Due Process Requirement for Personal Jurisdiction-
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service of process on a domiciliary (citizen) of that forum state even while he is outside the forum state is constitutional
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Define the Consent element of the Due Process Requirement for Personal Jurisdiction-
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A defendant may waive his rights under the Due Process Clause and consent to personal jurisdiction. Waiver may occur, either before or after he is sued.
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Ways in which there can be a waiver of consent
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(1)Waiver through failure by the defendant to properly raise the objection to personal jurisdiction
(2)Express Consent (3)Implied Consent |
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What does a defendant need to do in order not to consent to personal jurisdiction-
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Special Appearance
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Define special appearence
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is needed if the defendant decides to object to personal jurisdiction. Must strictly limit his objection to jurisdiction issues
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What are two ways a defendant can specially appear-
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1. Direct Attack
2. Collateral Attack |
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Define Direct Attack-
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the defendant shows up and directly challenges the lawsuit
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Define Collateral Attack-
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the defendant does not show up and directly attack personal jurisdiction in the original lawsuit. Rather it allows for entry for a default judgement and then challenges personal jurisdiction (this is risky)
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Is a failure to assert timely objection consent?
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Yes. But only in federal court
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Define a general appearence-
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if the defendant defends himself on the merits of the action rather than on personal jurisdiction
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Define express consent-
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a provision in the contract known as a forum selection clause
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Define a forum selection clause-
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says that the litigation will take place in a particular state
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Does a forum selection clause always apply?
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Yes if the contract contains a forum selection clause it will apply
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Why would a contract contain a forum selection clause?
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In limiting the forum’s that the corporation can potentially be sued in they can pass off their savings to the customers
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Define express consent by operation of law-
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The appointment on behalf of the Defendant of an agent for service of process
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Define implied consent-
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(a) Used to uphold the constitutionality of the state implied consent statutes that say the state courts can assert personal jurisdiction over non- resident corporations and individuals who committed torts within the forum state.
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Define Minimum Contacts-
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Due Process requires only that in order to subject a defendant to a judgement in personam, if he be not present within the territory of the forum, he must have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
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Requirements for Minimum contacts-
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1. Purposeful availment
2. Fairplay and substantial justice |
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Define the purposeful availment requirement of the minimum contacts element of personal jurisdiction-
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Only purposeful acts or conduct directed by the non-resident defendant at the forum state could support personal jurisdiction under the due process clause
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Requirements for the puposeful availment requirement of the minimum contacts elements of personal jurisdiction
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(a) Assess whether these contacts are purposeful or deliberate acts of the defendant directed at the forum state
(b)Assess the frequency and regularity of defendants purposeful contacts (c)Assess the nature and quality of defendants contacts with the forum (d)Assess the relationship between the plaintiffs cause of action and the defendants contacts with the forum state |
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How do you assess whether these contacts are purposeful or deliberate acts of the defendant directed at the forum state for the minimum contacts element of personal jurisdiction-
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1. Initation of contact
2.Forseeability 3.Circumstances surrounding the contacts |
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Forseeability-
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the forseeability that the defendant can see himself being hauled into court in the forum state
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Initation of contact-
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any connections we want to ascribe to the defendant the defendant must be responsible for.
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What do you look for in stream of commerce cases when determining purposeful availment-
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Purchases v. Sales
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What is the difference between purchases and sales when determining purposeful availment-
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generally speaking when someone chooses to sell a product they are intentionally reaching into that state where they do not have to do simply purchase something
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What test is used in intentional tort cases when determining purposeful availment
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Effects Test
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Define the effects test-
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if the defendant knew that his behavior would have a devastating effect on the plaintiff in that particular state
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What to look for when dealing with the internet cases when determining purposeful availment-
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1. Repeated transmission of computer files- This is intentionally reaching out
2. Interactive websites- THis is a grey area. Interactivity and commercial nature of the activity that occurs on the website. 3. Passive websites- that does little more than make information available to those who are interested. This is not reaching out in a particular way. |
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How do you assess the frequency and reglulariity of minimum contacts and elements of personal availment for the minimum contacts requirement of personal jurisdiciton-
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the more frequent and regular the defendant activities are with the forum state the more likely it is that the court will find that defendant should have reasonable be expected to be sued there
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What is continuous and systematic activity?
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is substantial activity that allows the defendant to take advantage of the laws of the state and whether the law suit is based on those ties and connections
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What is general jurisdiction-
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Under the continuous and systematic activity element of personal availment for the minimum contacts requirement of personal jurisdiction
even if the cause of action does not relate to the activity (i)Generally evaluates a residents ties or connections (ii)If the unrelated contracts are substantial you can still have personal jurisdiction. |
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What is specific jurisdiction-
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Under the continuous and systematic activity element of personal availment for the minimum contacts requirement of personal jurisdiction
when the claim relates to the activities. (a)Generally evaluates a non residents ties or connections |
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Define the fair play and substantial justice requirement of minimum contacts for personal jurisdiction-
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focuses on the forum chosen by the plaintiff and requires the court to consider the following factors which relate to the appropriateness of this particular forum to litigate the plaintiffs suit.
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What elements are considered for the fair play and substantial justice part of minimum contacts for personal jurisdiction-
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(a)The relative convenience of the forum to the plaintiff and defendant.
(b)The interest of the forum state in adjudicating this suit in its own courts (c)The interest of the forum state in providing a local forum for its own citizens to enforce their rights (d)The ease of access to an alternative forum (e)The avoidance of multiple lawsuits |
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The relationship between purposeful availment and fairplay and substantial justice for personal jurisdiction-
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(a)A strong showing of fair play and substantial justice can outweigh a weak showing of personal availment and vice versa.
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How do you challenge personal jurisdiction?
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1. Direct Attack
2. Collateral attack ** only one can be done*** |
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Define the service of process or notice-
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In order for a judgement to be valid and enforceable, the Due Process clause requires not only that the court have the power of the person and property but that the defendant also have given proper notice.
If no proper notice no personal jurisdiction: If the defendant has not been given proper notice, the court does not have personal jurisdiction |
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General Rule for Notice
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In general a summons must be served with a copy of the complaint. The plaintiff is responsible for having the complaint served within the time allowed by federal rules of civil procedure rule 4m and must furnish the necessary copies to the person who makes the service.
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Define Summons-
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a historical paper that says you have been brought within the courts power. If you do not respond within the judgement time a default judgement will be brought against you.
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Define complaint-
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filed with the court
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Who may serve a complaint or summons-
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any person who is at least 18 years old and not a party may serve a summons or a complaint
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What happens if the defendant agrees to waive service of process-
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(1) He gets three times longer to file his answer (Normally he gets 20 days this will give him 60 days, maximum is 120 days -Judge has a little bit of discretion but you cant count on this
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What happens if the defendant decides not to waive service of process-
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The defendant will have to reimburse the plaintiff for the expenses incurred by the formal service of process
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What is a manner that notice must be given in?
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One that is reasonably calculated- : notice must be given in such a manner that is reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections
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Permissable methods of service in state court-
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plaintiff can only use those methods of service specifically authorized in state statute which must be must be constitutional and must meet the due process standard- of being reasonable calculated
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What are the permissable methods of service in federal court-
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1. Personal Service
2. Substituted Service 3. Publication 4. Registered Mail |
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How do you challenge personal jurisidciton-
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Eithier a:
1.Direct Attack 2. Collateral Attack |
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Define a direct attack-
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A challenge to jurisdiction which is made before the court that is trying to exercise jurisdiction because personal jurisdiction can be waived:
1. In state court-you need to make a special appearance and move to quash service in order NOT to waive personal jurisdiction 2. In federal court- you need to file a Rule 12 motion (which is a pre-answer motion) that must include his objection to personal jurisdiction. If he omits his personal jurisdiction objection he will be deemed to have waived it, and cannot assert the objection later |
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What happens if the defendant waives his objection to personal jurisdiction because he fails to specially appear or submit a rule 12 motion-
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he will be deemed to have waived his objection and the objection cannot be raised on appeal or in collateral attack in a subsequent proceeding to enforce the judgement.
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What happens if the defendant properly asserts his objection to personal jurisdiction in a pre-answer motion and his motion to dismiss is denied?
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Majority view: the defendant must wait until a final judgement before he can appeal the denial of his motion
Minority view:: if the defendant looses the case on his merits he will not be able to attack the judgement on appeal on personal jurisdiction grounds. Thus a collateral attack would be better but it is risky |
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What happens if the defendant motion to dismiss for personal jurisdiction is denied and the defendant does not appeal or appeal is unsuccessful:
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he may not collaterally attack the court’s jurisdiction in another state.
(a)Once the forum states court determines that it has jurisdiction that determination is entitled to full faith and credit in every other state (b)Can only collaterally attack the court’s jurisdiction if he did not appear at all and suffers a default judgment |
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Define a collateral attack-
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A challenge to jurisdiction of the court that has rendered a judgement in a subsequent proceeding to enforce that judgement
In either federal or state court if a defendant doesn’t respond to the summons AND takes a default judgement AND the plaintiff seeks to enforce that default judgement in a second proceeding, defendant may seek to block the enforcement of that judgement by challenging the personal jurisdiction of the court that rendered judgement |
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What happens if the collateral attack fails?
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The court will enforce the default judgement against the defendant- Because he defaulted he cannot fight on the merits of his case
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Define venue-
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Answers the question of what is the most convenient forum?
Venue requirements are designed to identify a convenient forum in which to litigate a suit. 1.Always distinguish between a diversity case and a case of federal question 2.Always distinguish between a person or a corporation |
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What are venue jurisdictions based on-
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Based on population
1.4 is the maximum number a state can have a)This is the case in California |
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Is it possible to have more than one appropriate venue
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Yes because venue falls into two possible situations:
1.When venue can be in a different state 2.Within the state which venue is most appropriate |
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What authority do the venue requirements reside in?
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1.28 U.S.C.A § 1391
(yet remember to distinguish between diveristy and fedeal question cases) |
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What does 28 U.S.C.A § 1391 say about venue in diversity cases?
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consider the requirements in chronological order
(1)Requirement A: Venue is proper only in a judicial district where any defendant resides if all defendants reside in the same state- This is generally when there are multiple defendants (2)Requirement B: Venue is proper only in a judicial district where a substantial part of the events or omissions giving rise to the claim occurred (3)Requirement C (Fall back- only used if A and B do not apply): Venue is proper in a judicial district where any defendant is subject to personal jurisdiction at the time the action is commenced if there is no district in which the action may otherwise be brought |
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What does sub-section A of U.S.C.A § 1391 say about venue in diversity cases
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Venue is proper only in a judicial district where any defendant resides if all defendants reside in the same state
This is generally when there are multiple defendants |
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What does sub-section B of U.S.C.A § 1391 say about venue in diversity cases
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Venue is proper only in a judicial district where a substantial part of the events or omissions giving rise to the claim occurred
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What does sub-section C of U.S.C.A § 1391 say about venue in diversity cases
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Requirement C (Fall back- only used if A and B do not apply): Venue is proper in a judicial district where any defendant is subject to personal jurisdiction at the time the action is commenced if there is no district in which the action may otherwise be brought
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What does § 1391 require of venue for federal question cases?
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(1)Requirement A: Venue is proper only in a judicial district where any defendant resides if all defendants reside in the same state-This is generally when there are multiple defendants
(2)Requirement B: Venue is proper only in a judicial district where a substantial part of the events or omissions giving rise to the claim occurred (3)Requirement C (fall back- only used if A and B do not apply): Venue is proper in a judicial district where any defendant may be found, if there is no district in which the action may have otherwise been brought. Where the defendant may be found means were the defendant can be personally served Might have been brought does not mean consent (4)Requirement D: if we are talking about someone who is an alien. They can be sued anywhere and we don’t give them any deference- we rely solely on personal jurisdiction and subject matter jurisdiction. |
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What does Requirement A of § 1391 require of venue for federal question cases?
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(1)Requirement A: Venue is proper only in a judicial district where any defendant resides if all defendants reside in the same state-This is generally when there are multiple defendants
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What does Requirement B of § 1391 require of venue for federal question cases?
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2)Requirement B: Venue is proper only in a judicial district where a substantial part of the events or omissions giving rise to the claim occurred
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What does Requirement C of § 1391 require of venue for federal question cases?
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3)Requirement C (fall back- only used if A and B do not apply): Venue is proper in a judicial district where any defendant may be found, if there is no district in which the action may have otherwise been brought.
Where the defendant may be found means were the defendant can be personally served Might have been brought does not mean consent |
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What does Requirement D of § 1391 require of venue for federal question cases?
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4)Requirement D: if we are talking about someone who is an alien. They can be sued anywhere and we don’t give them any deference- we rely solely on personal jurisdiction and subject matter jurisdiction.
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What is the distinction between federal question cases and diversity cases in § 1391:
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Subsection C:
Diversity Requirement C: Venue is proper in a judicial district where any defendant is subject to personal jurisdiction at the time the action is commenced if there is no district in which the action may otherwise be brought Federal Question Subsection C: Venue is proper in a judicial district where any defendant may be found, if there is no district in which the action may have otherwise been brought. (a)Where the defendant may be found= were the defendant can be personally served (b)Might have been brought does not mean consent |
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Where is the proper venue for a corporate defendant?
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a corporation’s residence for venue purposes is any district where it is subject to personal jurisdiction at the time the action is commenced.
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How do you challenge improper venue in court?
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The procedure for raising a venue objection is the same as the procedure for challenging personal jurisdiction. In other words, through a Rule 12 motion: the defendant must raise improper venue in the pre-answer or answer or else it is waived.
a)If the defendant makes a pre-answer on some other ground it must include improper venue or it will be waived. |
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What happens if if the plaintiff brings suit in a federal court with improper venue and the defendant timely objects?
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the court can dismiss the case or it can transfer it to any federal district court it could have originally been brought.
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What happens to the venue of an action removed from state court into fedeal court?
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An action removed from state court goes directly to the federal court of the district in which the state action is pending
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Define inconvienient forum
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1.Where the plaintiff brings suit in a proper forum which is nevertheless inconvenient to the defendant
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Define a dismissal under forum non- convenience (Common law doctrine):
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this is a common law doctrine in state and federal courts which gives the court the discretion to dismiss the suit- even though venue is proper because it meets all jurisdictional and statutory venue requirements. Yet it is very burdensome for the defendant to defend in that forum
(1)The forum may have little or no relation to the litigation (2)In federal law: only applicable were the more convenient forum is a forum country (since the US cannot transfer to another countries courts) (3)In state court: far more applicable because a state court cannot transfer a case to another state court. |
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What authority does forum non- convenience rely on?
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§1404
§1406 |
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Define the expressed forum non convenience authority in §1404
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A federal court may for the convenience of the parts and in the interest of justice transfer a suit to any other district court where the suit might have been originally brought.
This means the federal court does not have to dismiss the case where dismissal would prejudice the plaintiff. If the court transfers the case the plaintiff does not have to file another lawsuit and serve the defendants again. |
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What level of proof does a transfer for forum non convience require?
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Requires a lesser showing of inconvenience to defendant that do dismissals under forum non convenience.
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In a forum non convenience or §1404 what must the courts balance?
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convenience to all the parties. Also known as the Gilbert factors (gives the court discretion):
(a)Whether the plaintiff is a resident of the forum state -If he is, that is a significant factor mitigating against dismissal or transfer though not necessarily determinative (b)Location of witnesses and other evidence (c)Relative costs of suit to plaintiff and defendant in forum state as opposed to other forum (d)Whether the forum state court would have to apply the substantive law of another state or country- the forum states interest in adjudicating the dispute |
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What happens were the plaintiff does not have a proper venue?
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He may transfer or dismissal under 28 U.S.C.A §1406
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What does §1406 say about forum non- convienience?
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If the plaintiff did not file the lawsuit in an appropriate venue. The court shall dismiss or if in the interest of justice transfer the case to any district in which the claim could have been brought.
This gives the court discretion as to whether to dismiss the case or transfer it to a place where venue would be proper |
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What is the general approach to forum non- convienience
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a)A forum non convenience or §1404 issue is raised only where plaintiff has brought suit in a technically proper forum and defendant seeks dismissal or transfer because of inconvenience. If it is not a proper venue the defendant must seek to dismiss under §1406.
b)In a forum non convenience or §1404: the court must balance the convenience to all the parties |
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What does the Erie Doctrine help to decide-
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which law to apply (the federal law or the state law)
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Which 4 cases compose the Erie Doctrine?
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1.Erie R.R v. Tompkins
2.Guaranty Trust v. York 3.Byrd v. Blue Ridge Rural Electric Cooperative Inc 4.Hanna v. Plummer |
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What standard does Erie R.R v. Tompkins provide for the Erie Doctrine-
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In diversity cases or in federal question cases not governed by federal law the federal courts must apply state substantive common and statutory law, but are free to apply federal procedural law
Therefore, State substantive law and federal procedural law are applied. (1)Substantive law: law dealing with contracts, torts ect. (2)Procedural law: Federal rules of civil procedure |
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What standard does Guaranty Trust v. York provide for the Erie Doctrine-
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When you don’t know whether a law is substantive or procedural- apply the outcome determinative test
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Define the outcome determinative test as provided for in Guaranty Trust v. York for the Erie Doctrine-
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if ignoring the state law and applying the federal law would result in a substantially different outcome we apply the state law
Example: a state statute of limitations is substantive in the Erie sense because there would be a substantial difference in the outcome of a suit in federal court of the state statute of limitations if the federal law was applied. Therefore the state law applies. |
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What is the underlying policy for the outcome determinative test as provided for in Guaranty Trust v. York for the Erie Doctrine-
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Prevent forum shopping, and the different application of the same law
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What standard does Byrd v. Blue Ridge Rural Electric Cooperative Inc provide for the Erie Doctrine-
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Tried to clarify Erie but only ended up mucking it up through the additional requirement of a balancing test: the court to look at the importance of the state law and weigh it against the importance of the federal law
Bound up test: if the state law in question is integrally bound up with the definition of state created substantive rights then the state interest in the federal court is high |
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General approach to the Byrd v. Blue Ridge Rual Electric Cooperative standard of the Erie Doctrine-
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(a)Focus on the state law and ask yourself whether the intent behind the state law is to confer benefits on the state’s citizens rather than merely to regulate procedure in state court.
(b)Also ask whether the particular law is intended to be an integral part of the enforcement mechanism of the state created right being enforced by the plaintiff in federal court. (i)If so, the state interest is accorded much weight b)If not bound up with the state created substantive rights and obligations but is one of form and mode- fall back on the outcome determinative test (1)Focus on the federal law and ask what federal policies would be served by applying the federal law |
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Define the bound up test of Byrd v. Blue Ridge Rual Electric Cooperative for the Erie Doctrine-
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if the state law in question is integrally bound up with the definition of state created substantive rights then the state interest in the federal court is high
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What standard does Hanna v. Plummer provide for the Erie Doctrine-
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when the state law and federal law address exactly the same issue and are in conflict
a)General rule: when federal law and state law are in conflict we go with the federal law. b)If the laws are not in conflict we fall back on the outcome determinative test |
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What is the general approach to follow when considering Hanna v. Plummer for the Erie Doctrine
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(1) Look for a federal rules of civil procedure
(2) Is the federal rule intended to resolve the issue confronting the court? (3) If yes- look to determine whether there is a conflict between the federal rules and the state law or whether the scope of the federal rule is narrower than the scope of the state statute so that you can apply the state rule without undercutting the policy of the federal rule |
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Define Pleadings-
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Rule 7 refers to the complaint, the answer and if permitted the reply which will set forth the contentions of the parties
A Complaint: gets the lawsuit rolling An Answer: the defendants response to the claims within the complaint |
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What is the purpose of pleadings-
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pleadings give background and are designed in varying degrees:
1.To narrow the issues being tried 2.To reveal the factual contentions of the parties to help the parties to prepare for trial 3.To give notice to the court and the parties of the nature of the case 4.To dispose of cases without trial where the pleadings reveal no issues of fact |
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What are the types of pleadings-
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1. Code Pleadings
2. Notice Pleadings |
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Define Code Pleadings-
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The minority view and only in some states- you must plead every element of the law and set forth the facts constituting the cause of action in ordinary and concise language.
For example: if you are pleading negligence you must list duty, breach, causation, proximate cause ect. |
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Define Notice Pleadings-
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The majority view) that is used in federal courts and most state courts- must set forth a short and plain statement of the claim showing that the pleader is entitled to relief
Caveat: there may be a requirement for more factual detail, it must set forth factually allegations sufficient to raise a right to relief above the speculative level |
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What is the purpose of a complaint-
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to provide fiar notice to the defendant of the underlying transaction that is the basis for the lawsuit. The complaint need not contain detailed fact allegations (defendant can discover the details of plaintiff’s case through discovery). A complaint is sufficiently pleaded so long as the courts can find some theory (cause of action) recognized by law under which the plaintiff might recover
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How is a complaint commenced in federal court-
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by the filing of the plaintiffs complaint
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What are the elements of a complaint:
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1. Must have a caption naming the court and the parties to the action
2. A party must state the claims or defenses in numbered paragraphs 3. Jurisdictional statement 4.Statement of the claim 5. Prayer for relief 6. Subscription |
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What does Rule 10(a) require-
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The complaint must have a caption naming the court and the parties to the action
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What does Rule 10(b) require-
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A party must state the claims or defenses in numbered paragraphs- each limited as far as a single set of circumstances
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What does Rule 8 require of a complaint-
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A Jurisdictional statement and a statement of a claim and a prayer for relief
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What are the requirements of a jurisdictional statement for a complaint under rule 8-
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(1)Federal Courts: allegations establishing the subject matter jurisdiction of the courts should be set forth in the first paragraph as federal courts are courts of limited subject matter jurisdiction. In other words, Federal Question Jurisdiction, Diversity or Supplemental Jurisdiction
(2)State Courts: courts of general jurisdiction are presumed to have jurisdiction. However, some states require jurisdictional allegations especially for complaints filed in inferior courts |
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What are the requirements of a statement of a claim for a complaint under rule 8-
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(1)Code pleading: must have a statement of facts constituting a cause of action
(2)Notice pleading: a short and plain statement of the claim showing that the pleader is entitled to relief (a)The attorney must sign the pleading- certifying that it is made in good faith, formed after reasonable inquiry, in the viability of the pleading (b)If it is permissible to plead or deny facts on the basis of information and belief (c)Rule 8 (d) (2) -Alternative and inconsistent allegations are permitted if made in good faith- This is done when you are not sure who is responsible you set both theories forth in the complaint so that everyone is on notice. You then do not have to worry about the statute of limitations expiring. May be submitted regardless of consistency (d)Rule 8 (d) (3) - there is no magic way of phrasing things |
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What specifically does Rule 8 (d) (2) say about a complaint-
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Alternative and inconsistent allegations are permitted if made in good faith
(i)When you are not sure who is responsible you set both theories forth in the complaint so that everyone is on notice. You then do not have to worry about the statute of limitations expiring. (ii)May be submitted regardless of consistency |
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What does Rule 8 (d) (3) say about a complaint-
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there is no magic way of phrasing things
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Define a "prayer of relief" pertaining to a complaint-
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must list the relief or damages expected- what you want in the way of damages
(1)The pleader is not limited to the relief prayed for in his complaint (a)Default cases: when the defendant defaults, the relief granted cannot exceed or differ from that prayed for in the complaint (b)Verdict in excess of amount demanded: where the evidence at the trial indicated that the plaintiff is entitled to more than the amount demanded in the complaint, the plaintiff will be rewarded the amount to which he is entitled. (i)In those states where this is not the general rule the plaintiff may in the discretion of the court amend the damge allegations and the prayer for relief in the complaint (c)Federal subject matter jurisdiction: the prayer for relief is generally determinative of the amount in controversy for purposes of diversity of citizenship jurisdictions |
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What does Rule 11 require of a complaint-
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a subscription
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Define a subscription pertaining to a complaint-
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requires that every pleading, written motion and other paper to be signed by the attorney which constitutes his certification- that a reasonable inquiry has been made, and that the pleading is well grounded in fact and warranted by existing law or a non-frivolous argument to change the existing law.
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What happens if you violate rule 11-
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will result in sanctions (penalties for non-innocent mistakes), yet sanctions for violations of Rule 11 are no longer mandatory; even if the court finds a violation exists it may choose not to impose any sanctions
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Define the safe harbor rule pertaining to Rule 11 of the complaint-
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allows the withdrawal or correction of propositions which violate rule 11 within 21 days
Basically when you see something that your opponent has done that requires Rule 11 sanctions you make a motion and serve the opponent. Then you give them 21 days to fix the problem. If the opponent does not fix the problem within 21 days then you are not able to file a motion with the court This reflects that the court is more concerned with finding the truth instead of simply punishing- it gives them a chance to fix the problem if it was inadvertent |
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What is the exception to the safe harbor rule-
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Exception of Rule 11 (3) (c) - even if the opponent does not raise the issue the courts can rise this and it is not subject to the safe harbor rule.
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What are the three choices of sanctions as listed in Rule 11 (4) (c) -
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1.Order that the lawyer pay a fine to the court
2. Any money has to be paid to the opponent 3. Non monetary directives or you can be told that you just waived one of your defenses. The court can issue orders that the court thinks will have a direct impact and deter future behavior. |
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What is one way that rule 11 can be violated according to Rule 11 (b):
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Rule 11 can be violated by persisting in advocating a position which did not initially violate the rule but which in light of subsequently acquired information has come to violate the rule
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Do we expect lay people to understand the law-
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No according to Rule 11 (b) (5) , therefore we hold the lawyer liable
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What else does Rule 11 (b) (5) require-
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That the lawyer have some notice when he is being sanctioned by the court
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What does rulee 11 (d) require of sanctions-
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Rule 11 (d) - when papers are being filed in discovery those are not subject to sanctions imposed under Rule 11
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Can the court impose sanctions without subject matter jurisdiction-
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Yes. Especially if disrespect is shown to the judicial system
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Define the Modern Rule of Professional Conduct 3.1, 3.3
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Most states based their provisions on the model rules. They apply to all active lawyers with the state bar. There is a private and public reprimand
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What happens when you are pleading special matters?
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certain matters are required to be pled with particularity and general allegations are not sufficient- requires more detail
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Which rule governs the pleading of special matters and what are the special matters
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FRCP 9- fraud and special damages
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Why does the FRCP 9 require particularity for fraud-
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the defense needs to know why they are being pulled into court, and we are trying to avoid frivolous lawsuits. If you accuse someone of fraud (this smacks of moral turpitude) and goes towards someone’s personal qualities. This is a disfavored claim.
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Define special damages under FRCP 9-
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those that are a proximate result of the defendants conduct but that only occurs because of the specific situation of the plaintiff and therefore is not presumed to flow from the defendants conduct (i.e. hospital and medical bills).
(2) General damages: those which are natural and expected result of the defendants conduct and therefore presumed to flow from the defendants wrongful act- these need not be pleaded with particularity |
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Define the commonlaw rule of a heightened pleading requirement:
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applies more generally to any civil rights case and requires particularity
This cannot be used in federal court. a) Yet through FRCP 7a the courts can impose a heightened pleading requirement through a reply to an answer- back door approach |
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How does a state court challenge a complaint
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through a demurrer (general or special) or a motion to strike
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Define a demurrer-
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a demurrer challenges only defects which appear on the face of the complaint and pleading (denies the complaint). This is a state court process
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What are the grounds for a demurrerr in state court-
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lack of subject matter jurisdiction, defect or misjoinder of parties, failure to state a cause of action
Waived unless raised in the initial pleading except if it is a failure to state a cause of action and a lack of subject matter jurisdiction |
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Define a "general" demurrer
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is a challenge to the substantive sufficiency of the complaint or answer. Assuming all the pleaders fact allegations are true the pleading does not state a cause of action recognized by law
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Define a "special" demurrer
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is a challenge to the pleading on any other ground an uncertain or ambiguous pleading
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Define a motion to strike as used in state court for pleadings-
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the only other challenge permitted as to the form or content of the pleading. Used to reach defects which are not subject to a demurrer.
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What are the grounds for a motion to strike?
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pleadings contain irrelevant or redundant matter, pleadings contain a defect in form not subject to demurrer (late filing, lack of verification)
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How is a complaint challenged in federal court-
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Rule 12 "pre answer motions":
1.Motion to dismiss for a failure to state a claim 2. Judgments on the pleadings 3. Motion for a more definite statement 4. Motion to strike |
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Define FRCP 12(b) (6)-Motion to dismiss for a failure to state a claim
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The demurrer has been abolished in the federal court. Defendant may challenge the sufficiency of the complaint through a motion to dismiss for a failure to state a claim, which is identical to the demurrer
like a general demurrer a 12(b) (6) motion may be used to challenge the substantive sufficiency of the complaint (for failure to state a claim recognized by law). (a)The defense of failure to state a claim may be raised through a pre-answer motion or in the answer or at any other time during the lawsuit. (i)The defense of failure to state a claim cannot be waived may also be used to challenge a complaint for defects in a form. This is very uncommon because detailed fact allegations are generally not required- However in the case of fraud or special damages, it is not uncommon for the courts to dismiss complaints for failure to plead with sufficient particularity. Yet they are also liberal in granting leave to amend |
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What are the FRCP 12(b) (6)-Motion to dismiss for a failure to state a claim standards used:
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(a)Conley: all that is required is a short and plain statement of the claim that will give the defendant fair notice of what the plaintiffs claim is and on what grounds it rests-This is very pro- plaintiff and a very generous standard. A complaint should not be dismissed unless there is no set of facts upon which the defendant can base his claim
(b)Durning: Does the complaint say enough that it should be allowed to go to the next stage bearing in mind that discovery is this next step. The court may ask what the plaintiff meant, yet will not go to the merits of the case (c)Ickball: just decided in May and creates a new pleading standard- this negates the |
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Define the purpose of FRCP 12 (c) - judgments on the pleadings
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to challenge the adversary pleadings on the ground that they are insufficient to establish any valid claim or defense
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Define the procedure for FRCP 12 (c) - judgments on the pleadings
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A motion for judgement on the pleadings may be made by either party at any time after all the pleadings have been closed by within such time as will not delay the trial.
(a)Motion generally heard by the court before the commencement of trial (b)Most likely the court will not dismiss but rather will tell the plaintiff to amend their claim- because this is America and we want people to have their day in court (c)Most likely will dismiss the case the closer it is to trial |
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Define FRCP 12 (e) - motion for a more definite statement
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(1) Permits an attack on vague or uncertain pleadings. However, detailed facts of a case are to be revealed to the parties through discovery, not the pleadings, this motion can only be granted where the pleading is so vague or ambiguous that the opposing party cannot reasonably frame a responsive pleading.
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Define FRCP 12 (f) - motion to strike
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(1)This motion may be used to strike any redundant immaterial, impertinent, or scandalous matter in the pleading
(2)Also where the complaint contains more than one claim, defendant can use this motion to strike a particular claim on substantive grounds (3)The plaintiff can move to strike a legally insufficient defense or counter claim in the answer |
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Objections to the following must be raised in the 12 (b) answer motion or it is waived
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(a)Personal jurisdiction
(b)Improper venue (c)Insufficiency of process (d)Insufficiency of service of process |
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(2)Objections to the following may be raised in the 12 (b) answer motion but if it is not raised it is not waived:
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(a)Subject matter jurisdiction
(b)Failure to state a claim upon which relief can be granted (c)Failure to join an indispensable party |
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Define an answer-
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defendants responsive pleading to the complaint (admissions or denials)
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Define an admission-
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an allegation in the complaint which is admitted is not an issue in the case
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Define a denial-
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an allegation which is effectively denied makes the denied allegation an issue in the case
can be general or specific c) You do not have submit a separate 12 (b) motion but it helps to highlight the rule 12 challenges so it does not get meshed in with everything else- yet a copy of everything needs to be served to the defendant |
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Define a general denial-
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controverts all of the allegations in the complaint. In federal court, a general denial is improper only if the defendant can in good faith controvert each and every allegation in the complaint. Since very few complaints contain no allegations which defendant in good faith cannot admit, proper general denials are rare.
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When is a general denial improper-
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normally should have no adverse consequence for the defendant
However, in rare cases where an improper general denial misleads the plaintiff to his prejudice, and there is no other way to remedy the prejudice a general denial may be deemed to be ineffective |
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Define a specific denial-
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Involves a sentence by sentence or paragraph by paragraph analysis of the complaint and controverts only specific allegations of the complaint of specific facts within the allegation
If the defendant is without sufficient knowledge or information, he shall so state in his denial and this will operate as an effective denial |
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Affirmative defenses as new matter included in the answer-
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assuming that all facts alleged in the complaint are true, defendant may rely on additional facts which, if true, establish a defense to plaintiffs claim. To be able to raise and prove such a defense at trial defendant must affirmatively allege these additional facts in his answer as an “affirmative defense”
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How to tell if the affirmative defense is new matter in the answer-
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new matter that must be raised by an affirmative defense is matter which does not controvert the truth of the allegations in, plaintiffs claim, but which defendant must prove to avoid plaintiffs claim
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Is an affirmative defense always an issue?
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b) If an affirmative defense is not pled affirmatively in the answer, it is not in issue and therefore defendant cannot offer evidence to prove up the defense at the time of the trial, unless the court allows defendant to leave to amend his answer or the plaintiff fails to object to defendants offer of evidence
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Define amended pleadings-
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the test must specifically tell you he seeks to amend the claim. The courts are generally liberal with this and unless too much time has passed so that it prejudices the other party the courts will allow for an amended pleading
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What authority do amended pleadings rely on?
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FRCP 15 (a,b,c)
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Define FRCP 15 (a) – Amendment prior to trial:
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a)Amendment as of right: either party may amend his pleading once, as a matter of right if:1)No responsive pleading has been served or
2)If the original pleading is one to which no responsive pleading is permitted within 20 days after it is served yet if there is a waiver of service then the defendant will get 60 days b)Amendment by leave of court: if the pleading has already been amended as a matter of right, or the time for amending as a matter of right has passed a party may amend his pleading only by leave of the court when justice so requires1)Such leave is usually granted unless demonstrated prejudice to the other party is shown 2)Left to the courts discretion- must become a balancing test |
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Define FRCP 15 (b) – Amendment to conform to proof at trial
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a party may seek leave to amend his pleadings to conform to proof presented at trial. Again, such leave is usually given unless demonstratable prejudice to the opposing party can be shown.
Even if leave to amend is not sought, the pleading is deemed to be amended to conform to proof by implied consent of the parties if the evidence is introduce by a party which is not relevant to pleaded issues and the opposing party does not object |
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Define FRCP 15 (c) - Amendments and the statute of limitations- “relation back” rules
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a)Amendment to add a new claim against the same party after the statute of limitations has run: most states, and federal courts allow an amended pleading which adds a new claim against the same party to “relate back” to the date the original pleading was filed as long as the claim asserted in the amended pleading arose out of the same transaction or occurrence set forth in the original pleading
b)Amendment to correct a misnomer: where the plaintiff has sued the correct defendant but has merely misspelled his name, amendments to correct such technical errors should be freely granted c)Amendment changing a party or naming of a party after the statute of limitations has run: where the plaintiff has made an error as to the identity of the defendant and therefore has mistakenly sued the wrong defendant, FRCP 15 (c ) permits an amended pleading which changes the defendant or the naming of the defendant after the statute of limitations has run, to “relate back” to the filing date of the original pleading if the claim arose out of the same transaction and occurrence and the “right” defendant within the period required by law Rule 4m for service of summons (120 days): (1)Received actual notice of the pendency of the action so that he will not be prejudiced in maintaining a defense (2)Knew or should have known that, but for the mistake concerning the identity of the proper defendant, the action would have been brought against him d)An amended pleading supersedes the original |
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Define a supplemental claim-
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If what you are seeking to amend happened after you submitted the claim
1.You need the court’s permission 2.The courts have a lot of discretion as to how much time to give the defendant to respond |
