Frcp Outline Rigos

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I. Commencement of Action

A. Filing

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A federal civil action is commenced by filing a complaint in a U.S. district (trial) court.

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B. Pre-Filing Notice Requirements

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In usual situations, P may be required to give notice to D before formally commencing a lawsuit by filing.

1. Federal Tort Claims- Tort claims against the federal government must be submitted administratively before any lawsuit is commenced. If the federal government rejects the tort claim notice or fails to make a final decision within six months, P may file suit.

2. Waiver- P's failure to comply with a pre-filing notice requirement is affirmative defense, but D may waive the defense by not moving to dismiss within a reasonable time. If D pleads a defense, but then engages in discovery, pre-trial motions, or other conduct inconsistent with an intent to seek a dismissal, the court may deny a later motion to dismiss.

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C. Relationship to Service

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After filing a complaint, P must present a completed summons to the federal district court clerk for their signature. The complaint papers are then to be served upon D. P generally has 120 days after filing to effect service, but the court has discretion to extend this deadline. However, if P fails to serve D before the deadline, the complaint will be treated as if it were never filled for statute of limitation purposes.

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II. Jurisdiction, Service, and Venue

Personal Jurisdiction

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A federal court may not assert PJ unless the D named:

(1) is given adequate notice and opportunity to be he heard; and

(2) has sufficient minimum contacts with the state where the district court sits when the claim is commenced. An action commenced without jurisdiction will be dismissed, and any judgment entered

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A. Service of Process

FRCP 4&5

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Notice to D is essential to PJ. To satisfy due process requirements there are three acceptable methods (1) D's waiver of service (2) personal, hand-to-hand delivery, either to D or someone authorized, (3) any other method allowable.

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B. Minimum Contacts

General Jurisdiction

Main Rule

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International Shoe says that for a forum state to assert jurisdiction over a DF, the DF must have "minimum contacts" with the forum state such that the maintenance of the suit does not offend "notions of fair play of substantial justice."

SLIDING SCALE DEPENDING ON WHETHER THE CLAIM ARISES OUT OF THE CONTACTS.

The MORE the DFs contacts are related the the case, the FEWER contacts you need.

The LESS the DF's contacts are related to the case, the MORE contacts you need.

To test minimum contacts, first determine whether the jurisdiction is SPECIFIC, GENERAL, OR IN REM.

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It's all about TERRITORY:

Old Rule

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Pennoyer says PJ can be established in 5 ways:

1. Presence

2. Property

3. Domicile

4. Status

5. Consent

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1. Presence

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D served while present in state. Service upon a nonresident who is voluntarily present in the state is sufficient to confer personal "tag" jurisdiction.

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2. Property

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D's property seized at outset.

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3. Domicile

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D is domiciled within the state. A person is domiciled in a state, even if she has temporarily left, is subject to jurisdiction in that state.

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4. Status

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State has power over legal status.

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5. Consent

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D consents to power of courts. JX occurs if D consents to JX, or fails to challenge PJ by a pre-answer motion or the answer itself. FRCP 12.

- Consent by Contract (express consent)

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Judicial Jurisdiction

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In order to have the bother to render a judgment that is binding, the court must have BOTH:

1. Personal Jurisdiction:

POWER OVER THIS DF OR OVER PROPERTY BELONGING TO THIS DF.

2. Subject Matter Jurisdiction:

POWER OVER THIS KIND OF CASE

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1. Personal Jurisdiction:WHERE CAN DF BE SUED?

To test minimum contacts, first determine whether the jurisdiction is SPECIFIC, GENERAL, OR IN REM.

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Specific Personal Jurisdiction- event happened in that state. Use SJ if the DF's contacts are related to the dispute.

General Personal Jurisdiction- so much contacts with the state. Use GJ if the DF's contacts with the state are NOT related to the dispute.

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Specific Personal Jurisdiction

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Even the DF has limited contacts with the state, it is fair to assert JX over DF because PL's claim ARISES OUT OF DF's contacts with the state.

i.e., D sold a product in AZ, and now D is being sued for products liability in AZ based on that product.

PL argues the state has personal JX because PL's claim is linked to DF's contacts with the state.

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General Personal Jurisdiction

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DF's contacts with the state are SO SUBSTANTIAL that it is fair to assert jx over him there even in cases completely UNRELATED to those contacts.

i.e., D drove through AZ, and now D is being sued for products liability in AZ.

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Three Factors to Weigh for Specific JX:

Applying minimum contacts test:

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1. Convenience- "Modern transportation and communication have made it such less burdensome for a party sued to defend himself in a State where he engages in economic activity"

2. State Interest- "Cali has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims"

3. Purposeful Availment -"It is essential in each case that there be some act by which the Df purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws."

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Tests for "Purposeful Availment"

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1. Foreseeability

2. Effects Test

3. Stream of Commerce Test

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1. Foreseeability

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"DF's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there."'

Did DF foresee being haled into that court?

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2. Effects Test

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Something intentional; Defamation.

Purposeful Availment will be satisfied where

-DF took an intentional act

-"expressly aimed at the forum state"

-causing harm, the brunt of which is suffered and which DF knows is likely to be suffered in the forum state.

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3. Stream of Commerce

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Products Liability; WHERE CAN THE CONSUMER SUE THE MANUFACTURER?

Does the manufacturers of a product "purposefully avail" itself of the benefits of a state where its product ends up through a chain of distribution?

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Potential Arguments regarding Purposeful Availment

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1. Foreseeability: Did D behave in a way that she should have anticipate being haled into court in forum state?

2. If intentional tort case: Did D cause foreseeable "effects" in forum state?

3. If products liability: Did D "target" forum state (or possibly, at least know the product would end up there)?

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Analyzing SJ

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Under International Shoe, a forum state may assert jurisdiction over an out-of-state defendant if the defendant has had “minimum contacts” with the forum state such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

Specific jurisdiction over an out-of-state defendant may be proper if the defendant's contacts with the forum state are related to the dispute.Analysis: Identify defendant’s contacts with the state.

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Analyzing SJ

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Courts weigh three factors to determine whether the International Shoe test is met for specific jurisdiction: purposeful availment, convenience, and state interest.

To satisfy minimum contacts there must be some act by which defendant purposefully avails itself of the privilege of conducting activities within the forum State.

Analysis: Identify which test is likely to be used in this case: foreseeability, effects, or stream of commerce

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Analyzing SJ

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-Under the foreseeability test, purposeful availment will be found where defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.

*Analysis: What was D’s conduct? Does it suggest she ought to anticipate being sued in the forum?

-In cases involving intentional harms, courts use the “effects test,” which holds that “purposeful availment” satisfied where 1) defendant took an intentional act, 2) “expressly aimed at the forum state,” 3) causing harm, the brunt of which is suffered and which Defendant knows is likely to be suffered in the forum state.

*Analysis: Did D take an intentional act? Was it aimed at the forum? Did D know the brunt of the harm would be in the forum?

-In products liability cases, courts sometimes use the stream-of-commerce test, which holds that D has sufficient contacts if D purposely directed the product to the forum state.

*Analysis: Did D place a product into the stream of commerce? Did D target the forum for sales of the product?

-ConvenienceAnalyze how burdensome the forum would be for the different parties and the efficiencies of litigating in the forum

-State interestAnalyze why state has interest in being forum for the case.

Conclusion: Defendant is/ is not likely subject to personal jurisdiction in State ____.

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General Juridiction

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DF's contacts with the state are so pervasive that the court can exercise jurisdiction over the DF in ANY claim.

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General Personal Jurisdiction

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If D is an INDIVIDUAL PERSON, minimum contacts requires one of the following:

1. D's domicile is the forum state.

2. D was present in the forum state at the time of service.

3. D consented.

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General Personal JX

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If D is a CORPORATION minimum contacts requires one of the following:

1. The forum is the state of incorporation.

2. " " D's principle place of business.

3. D has continued systematic business with forum state.

4. D consented.

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E. In Rem Jurisdiction

A court lacking personal jx may take action in regard to D's real property in the state, pursuant to its in rem powers. The property alone supplies sufficient contacts.

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Use in rem if the court is asserting control over property in the state.

1. Pure in rem- Court takes power over property to determine who owns it amongst ALL potential claimants. Usually meets minimum contacts.

2. Quasi in rem 1- Courts seizes property to determine who owns it as between claimants. Usually meets MC.

3. Quasi in rem 2- Courts seizes property to get JX in a case COMPLETELY UNRELATED to the property. RARELY meets MC.

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Two step Analysis for Personal JX

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1. State Power Analysis

2. Due Process Analysis

a) Specific JX

b) General JX

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F. Subject Matter Jurisdiction- FARS

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Subject matter JX is the court's authority to hear and decide a particular case. Parties cannot create SMJ by consent. It can be challenged at any time, even by post- trial motion or appeal. Federal district courts have smjx over only certain categories of cases.

FARS- Federal question, Amount and diversity, Removal jx, and Supplemental.

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1. Federal Question

§1331

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District courts may hear any case arising under a federal constitution, statute or treaty regardless of amount.

Examples include federal trademark, patent or copyright disputes.

The mere existence of an affirmative defense under federal law is not sufficient to create federal question jurisdiction.

"Well-pleaded complaint" rule Mottley

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2. Amount and Diversity Jurisdiction

§1332

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District courts may hear cases between citizens of different states if the amount in controversy exceeds an aggregated $75K.

a) Court costs and post-judgment interest do not count toward this amount in controversy threshold. Separate claims of 75K or below may not be aggregated unless all D's are jointly and severally liable. The state substantive law governs and state citizenship is determined at the time suit is filed, not when the claim occurred.

b) Diversity must be "complete"; no P may be a citizen of the same state as any of the D's. An estate executor is a party to an action only as a representative and thus treated as a citizen of the same state as the decedent.

EACH PL MUST BE FROM A DIFFERENT STATE THAN EACH DEFENDANT.

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3. Removal Jurisdiction

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D in a state court case has 30 days from receiving the complaint to "remove" the case to federal court. A notice of removal must be filed and served on P who may object within 30 days of receiving the initial state court complaint. SMJ in areas of context-specific federal concerns must exist. However, if diversity is the only basis for federal jurisdiction, the case may bot be removed if it was filed in a state where at least one D is a citizen.

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4. Supplemental Jurisdiction

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A federal court has jurisdiction over claims related to other claims where FSMJ exists. The test is whether the claims are so related as to form part of the same case or controversy.

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5. Actions Against Corporations

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Dual citizenship is possible. For diversity jurisdiction, a corporate D's "residence" is the state of inc. or where its headquarters' principle place of business is located, and the officers, direct, control, and coordinate the corporate "nerve center" activities.

This brought into question the dominance of the "muscle test" approach that designated the state where most corporate activities took place.

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6. Exceptions

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Domestic relations and probate matters are ineligible for federal jurisdiction and must be tried in state courts. P may preemptively defeat diversity by naming a non-diverse party as a co-D as long as doing so does not constitute fraudulent joinder; conversely, D's may not defeat diversity by inter pleading a non-diverse party as a third-party D.

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Exclusive Jurisdiction

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Only one particular court can host the case

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Concurrent Jurisdiction

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Two or more courts could host the case; PL makes a choice.

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Limited Jurisdiction

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Court may only hear certain types of cases

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General SMJ

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Court may hear any type of case EXCEPT those assigned exclusively to other courts.

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Federal SMJ

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28 U.S.C. § 1331 (granting federal question jurisdiction to federal district courts)

28 U.S.C. § 1332 (granting diversity jurisdiction to federal district courts)

28 U.S.C. § 1367 (granting federal district courts power to hear claims that come along with federal question or diversity claims in the same case)

28 U.S.C. § 1441 (allowing defendants in state court to “remove” to federal court cases that could have been filed in federal court by plaintiffs but were not)

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G. Venue and Change of Venue

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Venue refers to where proceeding takes place. Which federal district court should hear the case, assuming the parties have not designated a forum by contract?

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1. Basis:

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There are three general grounds for establishing proper venue.

a) Residence of D

b) Location of Events or Property

c) Personal Jurisdiction

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A) Residence of D

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Venue is proper in a district if any D resides in that district, provided that all of Ds reside in the state where that district is located. A corporate D may be deemed to reside in any district where it is subject to personal jurisdiction.

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B) Location of Events or Property

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Venue is also proper in a federal district where "a substantive part of the events or omissions giving rise to the claim occurred or a substantial part of the property that is the subject of the action is situated.

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Venue

§1391 Federal district

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§1391 gives 2 options and a fallback:

OPTION 1: Any district where any D "resides" IF all D's from same state.

OPTION 2: Any district where a substantial part of the events took place.

FALLBACK: use ONLY if options 1 &2 are BOTH UNAVAILABLE: Where any DF is subject to PJ.

-Individuals "reside" in state of domicile.

-Corporations "reside" in any DISTRICT in which their contacts would qualify them for PJ.

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C) Personal Jurisdiction

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If there is otherwise no district where venue is proper, venue i proper in any district where any D is subject to personal jurisdiction.

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2. Improper Venue

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If the case was filed by the P in an improper venue, the court may either transfer the case to a district where venue is proper or dismiss the case.

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3. Forum Non Conveniens

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Even if venue is proper, the court may nonetheless transfer the case to another district where venue is also proper if there is a compelling reason why the case should be heard there instead. D's burden is heavy when moving for transfer on forum non convenient grounds. Calendar congestion may be considered by the court.

-In state court, used when alternative forum is in another state or country.

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Analyzing Forum Non Conveniens

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-Assume PL's choice of forum entitled to presumption of propriety

-But if PL is foreign, not so much

-Must be adequate alternative forum

Then balance:

Private interest factors:

`Ease of access to sources of proof

`Availability of compulsory process for those unwilling to appear

`Cost of obtaining witnesses

`Other practical problems that make trial easy, expeditious and inexpensive

Public interest factors:

`Administrative difficulties from court congestion

`Local interest in having local issues decided at home

`Having governing law match the law of the forum

`

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A. Complaint and Answer

FCRP 3,4,5

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1. Complaint Contents- JARR

A complaint must give the D fair notice of all material elements of each claim and the factual and legal basis for each count pled in the complaint.

The complaint must include statements of:

Jurisdiction, Allegation of Facts Underlying the Claim, Right to Relief, Relief Requested.

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JARR

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a. Jurisdiction-Subject matter and personal over D's is required.

b. Allegation of Facts Underlying the Claim- Plausibility is required.

c. Right to Relief- The legal theory must be specified (tort, law, breach of contract, etc.)

d. Relief Requested- P must specify the remedy or relief that the lawsuit desires.

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2. Joinder of Claims

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P may assert multiple claims or theories of recovery in a single complaint, even if the claims do not arise out of one transaction or occurrence.

Alternative or inconsistent allegations are now allowed if not unreasonable.

The court may later order separate trials in the interest of convenance, judicial economy, or to avoid prejudice.

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4. Pre-Answer Motion to Dismiss

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D may move to dismiss under FCRP 12 for lack of jurisdiction, insufficiency of service, failure to join a party, or failure to state a claim upon which relief can be granted.

No "special appearance" by D is required.

D does not waive the deficiency by filing a motion to dismiss.

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5. Answer

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The D must serve an answer to the complaint within 21 days (60 days if D resides outside the U.S.).

If an answer contains counterclaims, it may be amended once as a matter of right if the P's answer to the counterclaims has not been served.

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E. Challenges to the Pleadings- FRCP 12

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Pleadings may be challenged by a Rule 12 motion to dismiss. Rule 12 motions do not go to the facts, but rather address whether the law allows the specific claim or defense (improper jurisdiction, venue, service, or expired statute of limitations).

A 12(b)(6) motion is for failure to state a claim upon which relief can be granted.

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G. Counterclaims-FRCP 13

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Counterclaims are causes of action made by the D against the P.

There are two types of counterclaims: Permissive & Compulsory.

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1. Compulsory

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The D must bring compulsory counterclaims against P if they arose out of the same transaction or occurrence as P's claim. They cannot be brought separately later by the D.

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2. Permissive

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Permissive counterclaims arise from a separate set of facts.

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H. Crossclaims- FRCP 13

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Crossclaims are made by a D against other co-defendants. Crossclaims must arise from the same transaction or occurrence as the P's claim.

CROSSCLAIMS ARE NEVER COMPULSORY.

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IV. PARTIES

B. Compulsory Joinder of Indispensable Parties-FRCP 19

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1. Generally: Although P's generally decide whom to name as a party, FRCP 19 requires that persons needed for just adjudication must be joined as parties if feasible. This is generally used to require joinder of other D's, but it may require the Joinder of P's as well.

If the parties do not voluntarily comply, the court will order joinder of a necessary party.

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C. Permissive Joinder of Parties

FRCP 20

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1. Common Question of Law or Fact- FRCP allow persons to join in an action if they have claims (or have claims asserted against them) arising from the same transaction or occurrence, involving some common question of law or fact. This rule encourages all interested persons to be joined in a single action to promote judicial economy.

2. Separate Trials- The court may, on motion, order a separate trial if the presence of a party would cause embarrassment, delay, undue expense, or prejudice.

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D. Impleader (Third Party Claims) FRCP 14

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1. Generally Impleader occurs when D1 brings D2 into a civil lawsuit, on the theory that D2 that D2 is derivatively liable for all or part of P's original claim for indemnification or contribution. D1 is the "third party P" and D2 the "third party D."

2.