Civ Pro Dale (b)

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CIVIL PROCEDURE OUTLINE

Prof. Dale.

0. GENERAL INFORMATION

Treatesis on Fed rules of Civ Pro.(secondary Sour ces)Moores Federal practice (has forms)Wright & Miller

Bender (has forms)Trawick is horn book in Florida he hates Fed rules of civ proLACOE Book basic format for civ pro in Fla Form bookCLE Continuing legal education.Law review articles are also good sources

A. Courts in Civil ProcedureFla does look like Fed system of Civil Procedure 75% same, but numbered them differently.There is no way to match them to each other.There is no criminal guilt, only civil liability.Every state is different

All civil procedure systems are historical.Trial court in a federal system is a district court and there are 3 In Florida there is the Southern, Middle, & NorthernThe Trial court in Florida is called the circuit court

Appeals court in Fed system is the circuit court.Appeal court in Fla is the District Court of Appeals.

3 districts in FloridaNorthernSouthernMiddle

O UTL IN E O F CLAS S1. Complaint In a court of law. is how you start a lawsuit I got hurt and you did it. Describes parties and what they did and what you are

seeking I f you wan t money damages you f i l e a compla in t . Petition In court of equity (Petitioner v. Respondent) Depends upon what the problem is, but its like a complaint for divorceNowadays the courts are merged, but the terminology is kept from history.

Relief what you are seeking (two types of relief in law)1. Equitable Relief2. Legal Relief in Law

Law&Equity Determine what is each.

Serving the Complaint- Other side gets it by being served by a process server.- The process server is someone from the court or can be a private company, or sheriff or designated agent. In Fla it is sheriff- Who serves the process depends on the court.- In NY anyone can serve over 18, not a party.- Deliver by mail or in person

Summons also gets served.2. Answer to the Complaint List of Affirmative Defenses- Defendant files an answer or can

- DO NOTHING.

- Motion to Dismiss

- Motion for judgement for an act of law

- Motion for a directed verdict in state court

- Motion for a judgement for an act of law in Federal court. (but still a directed verdict)

- Plaintiff, then the court can order a

- Judgement by default and the court gives a judgement and order. It then gets served on the person owing themoney.

Demurer - Defendant can also file a Demurrer.Florida - But, there are NO DEMURERS IN FLORIDA - In florida they do a motion to dismiss.Federal System - In the Fed system, they do a motion to dismiss3. Discovery (Federal Rules 26-37)- Interrogatories- Depositions- Production of documents and things- Physical examinations

4. Pretrial Meeting held with judge to discuss what will be tried (need an outline)- Summary Judgement You may have summary judgement Rule 56 of Fed Procedure which is a judgement without trial.

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Who can judgement without a trial both parties.Do you get a jury?Equitable proceeding no juryAction at law maybe a jury (it depends)

In fed court, it depends on 7th amendment.5. TrialIf you lose

1. Before the jury - Move for a directed verdict before the jury either side can do.2. After the jury - You ask to set aside the verdict NOV (JNOV) Judgement not withstanding the verdict. Non Obs tan toVerd i c to . Or Motion for a new trial is another one.3. Or Appeal

4. Supplemental Proceedings - If you lose the appeal, you get supplemental proceedings. Thats where you take an orderand try to enforce it.Opinions Plurality Opinion they all agree but for different reasons. It HAS NO PRECEDENTIAL VALUE Concuring Opinion upholding outcome, but not agreeing to the rationale. Dissenting Opinion Disagreement with outcome and rationale.

I. PLEADINGSA. ELEMENTS OF A SUFFICIENT COMPLAINT

1. Rule 8(a) - General Rules for Pleadings - Claims for Reliefa. a claim for relief shall contain a short and plain statement of the claim showing that the pleader is entitled to the relief soughtb. Florida requires a short and plain statement of "ultimate fact"

2. Exception - Rule 9(b) - in all claims for fraud or mistake, the circumstances constituting fraud or mistake shall be stated withparticularity3. Burdens of P leading, Persuas ion, and Proofa. Burden of Proof - determines the standard of persuasiveness the party must satisfy to prove his case

i. beyond a reasonable doubtii. by a preponderance of the evidenceiii. clear and convincing evidence

b. Burden of Persuasion - tells which party has the burden of proof/proving that a certain event/thing did or did not happen - inmost cases the burden is on the plaintiff

c. Burden of Production - evidentiary standard (going forward with the evidence)i. amount of evidence that is necessary to shift the obligation from one side to anotherii. the party has the burden of producing evidence supporting his allegations or rebutting the allegations made against

him4. Presumptions and Burdens of P leading and Productiona. Prima Facie Case - facts put forth by the plaintiff and will be considered to be true unless contradicted by the defendant -

establishes a presumptionb. Once prima facie case established by plaintiff - Burden of Production shifts to defendant to rebut the plaintiff's allegations

i. Defendant not required to prove allegations correct - must simply put forth evidence that contradicts or explains awayplaintiff's case5. The General Demurrer and Analogous Devices

a. Rule 12 - Defenses and Objections - establish the grounds upon which a Motion To Dismiss and other pleadings can befiled objecting to the complaint or other matters

i. Rule 12(b)(1-5) - other grounds upon which a Motion To Dismiss can be filed such as lack of jurisdiction over (1)subject matter; (2) person or property, (3) lack of venue, (4) insufficiency of process, and (5) insufficiency of service

(a) Pursuant to Rule 12(g) & (h) 2-5 must be raised in a Motion To Dismiss or in the initial answer if not defensewaived

ii. Rule 12(b)(6) - Fa i l u re To S ta te A C la im Upon Wh ich Re l i e f Can Be G ran tediii. Rule 12(e) - Motion For More Definite Statement - party claiming that complaint is not clear enough and that

defendant can't reasonably be expected to form an answer

iv. Rule 12(f) - Motion To Strike - used to strike particular parts of the complaint or certain allegations - used whenonly parts of the complaint are not sufficient to state a claim upon which relief can be granted

v. Rule 12(g) party who makes motion under this Rule 12 may join with it any other motions authorized by this Rulethat the party has available

vi. Rule 12(h) if a party does not make a pre-answer motion, he must include any defense he has under rule 12(b)(2)-(5)6. Rule 8(c) [General Rules for Pleadings - Affirmative Defenses] party shal l set forth affirmatively any and al ldefenses to claims alleged against the defendant

i. Court of Appeals was correct when it stated that Judge must determine whether 's evidence is true and correctii. Court of Appeals wrong when it said that if the trier of facts does not belief the 's evidence - that the is entitled to

a judgment as a matter of law

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iii. SC says there always remains whether the proved the allegations in his complaint - not whether the was able todisprove the complaint allegations - Burden of Persuasion always with the B. THE PROBLEM WITH SPECIFICITY

1. Awho files a long and detailed statement may plead himself out of court - A complaint should not be dismissed for failure to statea claim unless it appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him torelief

2. A District Court CANNOT require a heightened pleading standard in any type of action (other than those statutorily created such as9c) not in keeping with notice requirement

PLEADINGS - THE COMPLAINT IN THE FEDERAL SYSTEMComplaint ThePlaintiff is making a statement about substantive Not i ce P lead ing in Federal Court (B idd ing Sy s tem)1. Short and plain statement of the claim what hes suing for, what went wrong2. Next showing pleader is entitled to relief (what legal theory is and the fact that the Federal court is the right court to hear it.)3. A demand for judgement for the relief sought(what are you asking for)4. You must also put in if it is proper jurisdiction. Rule 7 -A short and plain statement of the claim showing that the pleader is entitled to relief Pleadings are

1. Complaint2. Answer3. Answer to a cross claim

4. Third party complaint

Under Notice Pleading, even if garbled, it may still state a claim. Code Pleading Used by states Requires more substantial information in complaint Ultimate Fact Pleading Used by Florida Requires more substantial information in complaint. It all means the same thing, when you look at the complaint, you cant get relief from it.

Affirmative Defense Defense that says, Yes, I did it , but I had a reason. There are 19 federal rules ofQualified Immunity is an affirmative defense.The plaintiff did not have to plead it if went in as an AFFIRMATIVE DEFENSE.

Writ of Mandamus when the plaintiff has the court asks the official to do something. Sua Sponte - When the court occasionally acts on its own with no one asking or a motion,

But, most of the time, unless someone asks the court to do something it does nothing.

CONTENTS OF THE COMPLAINT: Mot ion to D i sm is s -under 12b6 isFa i l u re t o s t a te a c l a im upon wh ich re l i e f c an be gran ted .

12b6 A l l ows d i sm is sa l f o r an improper compla in t Civil Rights Violations - U.S. Code 1983- Found in US code so 42 U.S.C. SS 1983 it allows people to sue for civil rights.The Defendant must be someone who works for the sta te but NOT for the Federal Government. 1983 does not apply to the

Federal Government, But, you can still sue directly under the basis of the constitutionFederal Officials Cannot be sued under 1983.Local Officials Can be sued under 1983.Gomez v. ToledoLegal Theory Breach of his due process Government official f ailed to give someone a hearing so issue of

qualified immunity exists I n the answer.

Qualified immunity an AFFIRMATIVE DEFENSE.EVIDENTIARY STANDARDS IN THE COMPLAINTBurdens of proof (evidentiary and persuasion) and burdens of production in a case. Ev iden t i a ry S tandards

A . Bu rden o f P roo f - u sua l l y means the ev iden t i a ry s t andard , t he re a re 31. CCE Civil commitment, Fraud2. Preponderance o f Ev idence Civil standard3. Beyond a Reasonab le Doubt Criminal law

B. Burden of Persuasion - This usually means that the obligation of a plaintiff necessary to convince a jury.- Always on the Plaintiff. (does not shift).B1. Burden of persuasion of affirmative defenses is on Defendan t , but P la in t i f f must overcome the affirmativedefense of qualified immunity.B2. Burden of Persuasion of Qualified Immunity The Defendant.C. Burden of Production - bounces back and forth between P and D

1. P puts out case2 2. D puts out defense of not being discriminatory.

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3. P says that the defense is a Pretext and is no good.Federa l c l a im o f t i t l e 7 , - Plaintiff only has to show a Not i ce P lead ing .

1. The Defendant has then the Burden o f P roduc t ion o f Ev idence to rebut Prima Fascia case.2. The Burden of Proof always stays in one place and has two definitions.

1. Burden of persuasion remains with Plaintiff2. Level of Burden, Evidentiary standard (BARD, PPE, etc.)Rascial Discrimination Case - The Plaintiff must prove a Prima Fascia Case by Preponderance of Evidenceof a case of racial discrimination that

he was:1. Black,2. Qualified 3. Demoted and discharged and

4. The position was open and replaced by a white man.

SERVICE OF PROCESSComplaint & Summons Filed together. Fed court - Served by rule in Civ Pro or Fed statute (marshall service probably) when too poor to afford service, usedMarshall service. Or anyone over the age of majority.

Florida sheriff, but may be served by someone else Many jurisdictions - Anyone over the age of majority can serve

After complaint - Everything else is served by the attorney to the opposing attorney. Serving the Pleading Only the initial pleading getsserved by someone other that the attorneys on both sides.

Summons - Summons goes together with a complaint. Document which summons the D to the court. Notice that a lawsuit and talks about atimeframe to answer and tells where the courthouse is. It gets delivered with certain rules of CivPro.

II. RESPONSES TO THE COMPLAINTC . THE ANSWER Rul e 12 (a)1. The defendant's Answer must respond to the plaintiff 's al legations - response to an al legation can be a denial,an admission or neither

a. Denial puts the allegation in issue and there by crease an issue of fact as to the allegationb. An admission establishes the allegation as true for the purse of the case - Failure to deny has the same effect as an admission2 . Consequence o f a Den ia la. Imposes on the plaintiff the burden of proving the allegation deniedb. Permits the defendant to introduce evidence that would tent to disprove the allegation3 . E ff ec t of P resumpti onsa. Certain types of facts are by statute or case law presumed to have occurred; orb. Sometimes the presumption is made conclusive or indisputable so that the fact presumed will be taken as having occurred no

matter what evidence might be offered to the contrary; orc. The presumption is disputable so that the fact will be taken as having occurred unless and until evidence is offered suggesting

otherwised. When an allegation is made of a fact presumed to be true, then a denial of that allegation ordinarily does not have the

consequence that the plaintiff must undertake to prove. defendant will have the burden of introducing evidence to disprove it.If the presumption is conclusive - the defendant will not even be permitted to do that4. Denials for Lack of Informat ion and Bel ief

a. The rules permit the defendant to aver that he has no information or belief sufficient to answer and on that basis to deny theallegation5. Reply

a. The Federal Rule 7(a) require a reply to a counterclaim denominated as such or when the court directs the plaintiff to reply to anew matter in an answerRESPONSE TO THE COMPLAINTFailure to state a claim upon which relief can be gra nted can dismiss a claim 12b6

Failure to state a claim upon which relie f can be granted (12b6) - a complaint should not be dismissed for failure to state a claimunless it appears BARD that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

D says, assuming all the facts are true, the re is stil l no legal basis for your claim anyway Fails to state cause of action andFails to state a claim.

Motion is not a pleading. Motion to Dismiss - In a motion to dismiss, the Defendant is not challenging the facts, so you dont put in an affidavit because it is all about

facts. This must mean the facts here are true, f o r t he pu rpose o f the mot ion on ly , and are taken as true for just that. They are taken asfavorable for the nonmoving party. If you lose the motion, you can dispute the facts later at trial.

If there is a motion to dismiss and no one does anything, than the case gets dismissed, but the court does nothing, because the court willdo nothing until someone tells the court

Motion for a More Definite Statement 12(e) When the Defendant does not understand the notice. motion too vague or ambiguous torespond

Heightened Pleading Standards in 1983 Cases Upheld for 2 reasons:1. Limitation on accountability2. Heightened standard is not that at all

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Respondeat Superior The Supreme Court has applied that, in the Doctrine of Respondeat Superior You cannot hold the employer liable forthe constitutional torts of their employees. If sued in state court, it applies

Heightened pleading standard is upheld in civil cases when: 9b Fraud or mistake Dismissal for Failure to prosecute a claim: - Failure to prosecute a claim means that a party does not move ahead with litigation.

III. AMENDED AND SUPPLEMENTAL PLEADINGSD. RULE 15(a)1. Amendment can be accomplished 3 ways:

a. File Motion For Leave To Amend; orb. Agreement Of Parties; orc. Before Responsive Pleading

i. Party may amend the complaint once as a matter of right - onceii. Failure to grant leave to amend at least once is almost invariably held an abuse of discretioniii. Generally a pleader is required to avail himself of the opportunity to amends such an opportunity is extendedE . RULE 15(b)

1. Pleadings can be amended to conform to the evidence that has been discovered or produced at triala. The effect is that a complaint should not be dismissed for failing to state or support a claim and the party is permitted, with

leave of the court, to amend the pleading to correct the deficiencyF. RULE 15(c) - RELATION BACK DOCTRINE1. Rule 15(c)(1) - Statute of Limitations

a. An amendment of a pleading relates back to the date of the original pleading when

i. The relation back is permitted by the law that provides the statute of limitations applicable to the action ORii. The claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth

or attempted to be set forth in the original pleadingsb. This very important because of the statute of limitations - if complaint does not relate back and the statute has run, then the

complaint will be dismissed

2. Rule 15(c)(2 ) - New claim or defens ea. Permits the relation back of new claims when the defendants are properly named if the claims asserted in the amended pleading

arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original complaint

3. Rule 15(c)(3) - Unnamed or Improperly Named Defendantsa. Permit relation back when the amendment changes the party of the naming of the party against whom a claim is asserted

when:i. the party will not be prejudiced by maintaining the action against him; ANDii. the party knew or should have known that, but for the mistake of the name, the action would have been brought

against himb. Several Courts of Appeals have developed an "identity of interest" test, under which an amended complaint relates back if the

true defendant is closely related to the party named in the original complaintc. If the defendant prevents the plaintiff from discovering the identity of the true defendant, or misleads the plaintiff into naming

the wrong defendant, the true defendant will be estopped from asserting a statute of limitations defense to an amended

complaintG. RULE 15(d)1. Supplemental pleadings are those referring to events which have happened since the date of the pleading sought to be supplemental2. Restrictions on Supplemental Pleadings - assertion of a supplemental claim or defense is permitted only with leave of the court, the

leave to grant or deny is in the trial judge's sound discretion - as justice requires3. Necessary Elements

a. Events which have happened since the complaintb. Must be a material factc. Fault based on events that occur later in timeH. AMENDMENT TO RULES

1. 1993 Amendmenta. provides that relation back is permitted if notice is provided to the true defendant within the period covered by Rule 4(j) for

service of summons and complainti. Rule 4(j) provides that a summons and complaint must be served within 120 days of the filing of the complaint

2. Effect of more liberal state law of relation back - Rule 15(c)(1) provides that relation back is permitted by the law that provides the

statute of limitations applicable to the actioni. Committee Notes state that if there is an ability to save a complaint from the running of the statute of limitations thenthe trial judge should attempt itI. PLAINTIFF'S DECISION WHETHER TO AMEND

1. Standing on Pleadings - Where the objection to the pleading is explicitly on substantive grounds, the plaintiff ordinarily refuses toamend

2. Where the objection to the pleading is explicitly on formal grounds, plaintiff ordinarily exercises the leave given to amend and defectscorrected

3. Where it is unclear whether the objection to the pleadings is one of substance and one of form - 3 rules applya. Relief should be sought, if available, in the trial court before resorting to an appealb. No action should be concluded by reason of shortcomings in the pleadings, even serious onesc. Resort to an appellate court may be had, only from a final judgment and the only way a party can resort to this action and

appeal is to refuse to amend the pleadings - to stand on the pleadings and wait for a judgment against them to be entered

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J . CHALLENGING ATTEMPT TO AMEND1. Delayed Challenges to the Claim or Defense - Rule 12(h) - Waiver or Preservation of Certain Defenses

2. The sufficiency in point of substantive law of a claim or defense may be challenged at any time prior to entry of final judgmenta. by demurrer or motion for judgment on the pleadings after the pleadings are closed;b. by motion to strike, at pretrial conference, by oral demurrer;c. motion to dismiss or motion for judgment on the pleadings at the opening of the trial;d. by motion at trial objecting to the introduction of any evidence, after presentation of the evidence by motion for directed

verdict ; ore. on appeal

AMMENDING & SUPPLEMENTING COMPLAINTSRule for Ammending complaint is Rule 15 Purpose - The basis is to get to the merits of the case by giving the opportunity to make a claim under which relief can be granted. If the

court is harsh and does not give amendment to be denied, it could throw out the case.Exception What is the exception when do you not need permission to amend. A Party may amend the partys pleading ONCEas a matter of course as a matter of right before a responsive pleading is served. I f you f i l e a compla in t and ge t back a mot ion to d i sm is s, (12b6 motion) - You file an: Amended Compla in t , you can change it because a 12b6 is not a pleading back or response. A 12b6 is not a responsive pleading, therefore

not an answer and you can amend all you want.

Answer is a responsive pleading. After the Answer - Now, if the other side files an an sw e r, and then see that you had a problem. Now that they have filed an answer, and

you decide you want to amend your complaint, You canno t do i t a s a mat te r o f r i gh t anymore because there was a Respons iveP lead ing filed.

You must:

Amending with permission:A. Ask Leave of the Court - In order to get permission of the court, you must file a Motion to Amend the Complaint

Tes t f o r g ran t ing l eave to amend : - The test for the courts granting of the motion is in Rule 15 is; Leavesha l l be f ree l y g i ven when ju s t i c e so requ i res .Courts tend to give leave to amend.

B. Get Written Consent of the other party. - Mostly lawyers will give permission to keep professional and as a strategy. Ifthe error has no adverse affect on client. Say yes, because you may need to ask for something yourself! Sense of Civility.

Tes t f o r o the r s ide g i v ing pe rm is s ion to amend i s I t depend s on whether the re i s a s ign i f i c an t l ega lreason fo r g i v ing w r i t t en consen t .

Amended v. Supplemental Complaint Ammended pleading - refers to facts that took place before original pleading is filed. Supplemental pleading refers to facts that are relevant after the original pleading was filed.New Cause of action - You can put a new cause of action in a supplemental complaint if there is something that arises. This

would be like harassment of a Plaintiff after charges are filed.

Statute of Limitations - If you file the original complaint after the Statute of Limitations has run, you would be screwed because, under12b6, No relief can be granted.

Relation Back Doctrine (F.R.15 c) The ability to amend complaints after the Statute of Limitations after statute has run.There is a rule that gets you back. It allows you to amend a complaint to add a cause of action as long as it arises out of the sametransaction You can change and it will relate back and therefore be timely.2 parts:

1. You can change the complaint when the Cause of Action rises out of the same circumstances. You must be able tosay that it arises out of the same conduct.2. You can add another cause of action.

3. Can you fix it if the name is wrong. It must be a mistake

Tes t Po in t - You know that there was an answer filed because the P had to get a motion to amend.Non- respons i ve P lead ing . -Defendant does nothing no answer IV. SUBSTANTIALITY OF CLAIMS AND DEFENSES

K. RULE 11 - SIGNING OF PLEADINGS, MOTIONS, AND OTHER PAPERS; REPRESENTATIONS TO COURT; SANCTIONS1. 1993 Changes:

a. Safe Harbor - a litigant can escape sanctions by withdrawing an offending representation within 21 days of having service of amotion for sanctions under Rule 11b. Continuing Duty - a litigant has a continuing duty to ensure that representations to the court meet the standards of the rule

i. If a factual allegation in the complaint is made after reasonable investigation, but later learns to be withoutfoundation, a litigant may to continue to present it to the court by later advocating it

c. Ability to seek supporting evidence later - a litigant may allege facts for which there is little or no support at the time of theallegation, if the allegation is specifically so identified and if it is likely to have evidentiary support after a reasonable opportunityfor further investigation or discovery

d. Possibly less severe sanctions - sanctions shall be limited to what is sufficient to deter repetition of such conduct or comparableconduct by other similarly situated which include nonmonetary sanctions or an order to pay court costs

e. Firms liable for sanctions - law firms, as well as individual attorneys and unrepresented parties, are liable for sanctionsf. Inapplicable to discovery - the amended rule does not apply to discover

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i. Discovery related duties and sanctions are covered exclusively by Rules 26 - 372. Continuing doctrine under the Rule - objective standard is to be used rather than on a finding of good or bad faith

Signi ng of Plead ings Rule 11(gui dance) - Deals with lawyers ethics and obligations to the court.Slap the hand device/control device to keep people in line. For most papers filed in court, R11 applies.

Test is what a Reasonab le Lawyer wou ld do . Applies to lawyers, parties unrepresented by counsel and partiesrepresented by counsel. The law firm has an ob l iga t ion to the cou r t as we l l a s t o h i s c l i en t . Discovery Ru le 11 does no t app ly t o D i s cove ry . Ru le 37 app l i e s i n s tead . Safe Harbor - Rule 11 has a safe harbor Ability to with draw the offending document is new because plaintiffs in civil rightscases often times were poor

Application - Must be non f r i v i l ous a rgumen t as war ran ted by ex i s t i ng l aw. You will not be stuck if you have a legalargument if you try to change the l aw as long as you have a non f r i v i l ous case and a Good Fa i th . Evidentiary Support - Additionally, you must have Ev iden t i a ry Suppor t of facts or Reasonab le Oppor tun i t y f o rfu r the ri n ves t iga t ion o r d i s cove ry . This is what Lawyers use to run into court to file something. This is doing the best you canand then having the opportunity to fix the problem.

V . REMEDIESI. PLENARY JUDICIAL REMEDIES

A. DAMAGES1. 3 types of damages within Court sett inga. Legal Damages - monetary awardb. Equitable Damages (Specific Relief) - request court to make/prevent party from doing somethingc. Declaratory - have court declare rights of parties

i. Granting a plaintiff a judicial determination of the legal relationship between himself and anotherii. Available if the applicant for a declaration can show that he confronts real risk if he proceeds with the court of

conduct which he seeks to followiii. Courts will still refrain if the issues are not ripe for adjudicationB. SPECIFIC RELIEF: INJUNCTIONS AND DECLARATORY RELIEF

1. INJUNCTIONS - 3 Types (Rule 65) (See Below V.B)a. Preliminary Injunction - issued while action is proceeding in hopes of receiving permanent injunctionb. Permanent Injunction - court will instruct party they must permanently obeyc. Temporary Restraining Order - issued for 10 days and then must be renewed - short time because can be obtained without

notice to defendantC. OTHER TYPES OF EQUITABLE REMEDIES1. Constructive Trust - trust is imposed on property which is in the hands of the defendant but which in justice belongs or ought tobelong to plaintiff - constructive trustee then ordered to transfer property to plaintiff2. Rescission or Cancellation of Contract - when because of mistake, fraud or the other ground, one party is privileged to withdraw form

a contract which he has made, he may obtain adjudication authorization to rescind contract

3. Quiet Title - it could be used to determine rights in easements and rights based on equitable remedy4. Suits to Remove Clouds on Title - form of relief granted to a plaintiff whose possession was as yet undisturbed but who feared that

the existence of a document purporting to vest in another title to or interest I the land would lead to later disturbance of plaintiff'spossession

V.A PROVISIONAL REMEDIES A judicial order, obtained at the initial state of litigation, designed to stabilize the situation pending the final disposition of thecase or to provide security to plaintiff so that if he succeeds in obtaining judgment he will be able to enforce it effectively - Traditionaprovisional remedies include the seizure of property/attachment, temporary injunction and other analogous remediesD . ATTACHME NT

1. Connec t i cu t v . Doeh ra. Court considers 3 factors in determining what process is due when the government init iates a deprivation ofproperty - attachmenti. What private interest will be affected by the prejudgment measure?ii. What are the risks of an erroneous determination under the procedures in question, and what is the probable value o

additional safeguards?iii. What are the interests of the party seeking attachment, giving due regard also to the government's interests in

providing the procedure or forgoing added protections?b. The CT statute permits substantial risk of erroneous deprivation - al l it requires is that a plaintiff bel iefdefendant is liable no allegation tha t a defendant is about to dispose of property allegedE. TEMPORARY RESTRAINING ORDERS AND PRELIMINARY INJUNCTIONS1. INJUNCTIONS - 3 Types (Rule 65)

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i . Tes t f or Prel im inary Injunct ion (pl us non-di sc re ti onary e lement s)(a) No adequate remedy at law(b) Danger of irreparable harm(c) Likelihood of success on merits(d) Balancing hardships of both parties(e) Policy considerations Public Interesti i. Non-Discretionary Elements(a) Previous case law(b) Factual determination of evidence(c) Draw legal conclusions in accord with principal application of the lawi ii . S tandard of Review by Higher Court when Order Granted/Not Granted(a) Abuse of Discretion by either

Apply correct or incorrect preliminary injunction standard regarding substantive law

Clearly erroneous finding of fact

b. Permanent Injunction - court will instruct party they must permanently obeyi. Mandatory - demand actionii. Prohibitory - prevent actioniii. Elements for Permanent Injunction (different from Preliminary Injunction)

(a) Remedy at law inadequate(b) Irreparable harm(c) Balancing hardships between both parties(d) Clean hands (look at both parties)(e) Public interest consideration(f) (Judicial Discretion - not element, but used in determination)

c. Temporary Restraining Order - issued for 10 days and then must be renewed - short time because can be obtained withoutnotice to defendant

V.B. FORECLOSURE OF REMEDY BY THE PASSAGE OF TIME - Statute of Limitations (at lawremedy)F . Nat ur e and Ef fe ct

1. In theory statutes of limitation merely suspend the remedy but does not extinguish the substantive right, although barring the actionhas the same practical effect in most instances as barring the remedy

2. The plea of the statute of limitation is a meritorious defense, in itself serving a public interestG . App li cabi lit y1. The governing statute is usually that of the forum where the remedy is sought and not the statute of the place where the action

arose2. The statue of the forum may bar a remedy even though the action is not barred in the jurisdiction where it arose - this has lead to

forum shopping3. 2 exceptions

a. Where a statute creates a right unknown at common law and establishes its own time period for suit, the right is a conditionalone and its time condition will be enforced wherever the action is commenced

b. Many jurisdictions have borrowing statutes. These statutes typically provide that an action arising in another jurisdiction oraffecting a nonresident, and barred in that jurisdiction, is also barred in the forum state4 . Fal l- Back S ta tu tes

a. Statute of limitations for federal statutory causes of action created after 1990 that do not contain their own explicit limitationperiod will be 4 years

b. Federal statutes that contain their own limitation periods are governed by those periods

c. Federal statutes enacted before 1990 that have no explicit limitation periods of their own typically borrow from the closestanalogous federal or state limitation periodH. Computation of Time Per iods

1. The time is computed from the day on which the plaintiff could have commenced the suit - the day the action accrued - and the suitmust be commenced on or before the last day of the time period

2. Accrual and commencement are not self-defining and jurisdiction differ on their meaning and effect - Generally accrual means thetime when the plaintiff could have first maintained a suit - the date the action was legally complete and the right to use matured

3. Accrual can also mean that the time period does not start running until the injured person discovered or should have discovered theexistence of his cause of action - frequently coupled with the requirement that the plaintiff use due diligence in ascertaining her right

4. The statute is tolled when the action is commenced - jurisdiction differ on this also - some states say when filed and others say whenservice made

5. Federal Rules of Civil Procedure define commencement as when the complaint is filed in the Clerk's office - tolls the statute in anaction based on federal lawa. Rule 3 not used to toll a statute of limitations in diversity case only used to establish dates for service, answer, summary

judgment

I. Avoidance of Statute - application of the statue of limitations is not a matter of discretion and courts say they will not balance theequities or create or expand except so as to avoid hardship or prevent unjust enrichment1. Saving Statutes

a. In the absence of statute, an action that is dismissed or fails after the statute of limitations has run cannot be recommenced,even if the original suit was brought within the time period

b. Because of the harshness of this result when the initial failure or dismissal was to on the merits, most jurisdictions have savingsstatutes that permit a new suit within a specified time period

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c. Where dismissal is covered by a savings statute, the case may be restated within the savings period or the general statute oflimitations if it has not yet run - the savings statutes extend but do not shorten the statutory periodJ . P lead ing and Procedure

1. A plea of limitation, being in the nature of confession and avoidance, is generally deemed an affirmative defense to be pleaded andproved by the party asserting it

2. Failure to plead the statute waives the defense3. When the statue is raised as an affirmative defense, the plaintiff must then reply and raise whether exceptions exist

4. A general denial is generally not sufficient to raise the defenseK. Laches

1. Laches is to suit in equity what the statute of limitations is to suits a law2. The theoretical basis for laches is injustice, not just the passage of time

3. For laches to bar an equitable remedy, plaintiff's inaction must have produced injury, disadvantage or prejudice to the defendantL . Not ice of Cla im1. Statutory causes of action, particularly claims against governmental bodies, often call for written notice to the defendant concerning

the claim and its basis within a short period of time after such claims arises2. Such notice is designated to enable the defendant to investigate the claim properly, and failure to provide the requisite notice bars

the suit in the same manner as does the statute of limitations3. The Supreme Court has held that such notice and allowance of time is a condition precedent to suit and cannot be remedied by

notifying the agency after suit is filedREMEDIESLaw v . Equ i t y Actions at law you have a right to a jury, can be tried by judge or jury. If the damages are proven in action at law, th ere is nodiscretion, you just award it Actions in Equity its different the court has discretion because we deal with what is reasonable and fair. It is a balance.

A. Damages Monetary Relief. Special Damages

GeneralPunitiveB. Equitable Relief

Injunctions (TROs within)Specific PerformanceDeclarationsC. Provisional or Temprorary Remedies

Claim for Relief - You put remedies under relief sought otherwise known as a claim for relief and this is put into claim. Procedu ra l Due Process Due process contains the proposition that you are entitled to no t i c e and must be fairly articulated so that you

have the ability to defend yourself.

Subs tan t i ve Due Process - need to have a r emedy that in terms of its weight is there. The remedy must relate to the action of theDefendant. (Can the state impose it at all).

Tes t1. Degree of reprehensibility

2. Disparity between harm or potential harm suffered and the award (comparison of harm)3. Difference between this remedy and the civil penalties authorized or imposed in comparable cases.

A Temporary Restraining Order (TRO) - is a type of injunction and is equitable reliefFlorida Uses Inunctions. no such thing as a temporary restraining orderIn Fla only Temp injunction and Permanent InjunctionF lo r ida combines TRO and pe rm anen t In j i n to t empora ry in junc t ion .FLFederal System usesTemporary Restraining Orders.Preliminary InjunctionPermanent Injunctions

Co l l a t e ra l Sou rce Ru le . Court upholds collateral sources rule because the person who commits a tort gets no punishment and must pay forwhat they did.

Subrogate gives right to insurance to go afterHelfend v. South California Rapid Transit.BMW of N. America v. GoreBusiness Guides Inc. v. Chromatic Communications Enterprises, Inc.

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3 types of equitable remedies1. Tempo rary Restraini ng Order s - You need to get order from court or they will do something before you get the order (like they will sell

something off and if you told them you would go to court to stop them, they will do it first and sell it quick)TRO test - To get test for TRO, which is not given in FRCP, you must got to CASE LAW because there is no statute.Must give notice to other side unlessTime Frame - TROs last in court for 10 days in f ede ra l cou r t and is extendable2. Prel iminary In junct ions3 . Permanent Injunct ions

Injunctions Rule 65 - Injunctions often occur at beginning of case mostly because something needs tohappen

2 kinds of injunctions

1. Prohibitory Injunctions Stops something from happening2. Mandatory Injunctions To make some one do something Interlocutary means temporary General Rule Court has Discretion

Basis for injunctive relief (fou r part test) Must be a hearing on the merits.1. Irreparable Injury2. Inadequacy of legal Remedies Inadequate remedy at law

I f you have bo th o f t hese , you don t necessa r i l y have an in junc t ion .3. In the discretion of the court.4 . Pub l i c Po l i c y - But, Even though the damage is irreparable, there may be a Public Policy consideration.

Weinberger v. Romero BarceloPROVISIONAL REMEDIES Provisional Remedy - Judicial order, obtained at the initial stage of litigation, designed to stabilize the situation pending the final disposition

of the case. Provides security to a plaintiff. Protect something from disappearing or going away. 3 types of Provisional Remedies

1. Arrest2. Attachment3. Lis Pendens

Notice v. Motion for Temporary Restraining Order - ProcedureLawyer serves Summons & Compla in t and if you want a TRO , you must file an a f f i dav i t and the judge does nothing. To get a judgeto act, you must file a mot ion and then they rule on it and then they do enter a J u dgemen t or a an order . The affidavit will not getyou the order and is only part of what is necessary you need the

As a matter of practice judges Make , En te r , and Dra f t O rde rs and to end cases, they order Judgemen t s .Motion - There only way to get the judge to do something is to make one. There aint no other way. Application and requestfor an order.(This is a document) except in New :York which it is called a notice of motion Order When a court acts on your request

Opinion the rationale for the order Immediate Relief - If you want immediate relief, you must get it from the court through an order by submitting a motion.Immediate relief is ask a motion for an emergency or Tempora ry Res t ra in ing Order .

Conneticut v. DoehrPRELIMINARY INJUNCTIONPreliminary Injunction (test)1 . No adequate remedy at law

2. A danger of irreparable har m while case is pending - when you weigh the irreparable harm during course of applicationfor a preliminary injunction, there is a time frame concern because more damage can be done. This is done before the trial. Time isalways the concern and need for preliminary injunction.

3. Likelihood of success on the merits. That you have thefacts and the law is with you.4. Weighing of the harm as between the plaintiff and the defendant (this is at the stage for all three, TRO, Prelim,Perm.

5. Public Policy considerations harm to public interestsStandard of issuance is Disc re t i on. Preliminary Injunction is a discretionary decision. Appeal of an Injunction by Defendant. Must show standard of abuse of discretion in order to be successful. Abuse o f D i s c re t i on is

the standard for looking at injunctions.

1. Applies incorrect substantive law or incorrect preliminary injunction standard2. That he rested his decision to grant or deny on a clearly erroneous finding of fact3. Applied an acceptable prelim injunction standard in a manner that results in abuse of discretion.

Appellate Process and Injunctions.The power to issue injunctions , The cou r t has d i s c re t i on and i t i s a c ruc ia l e l emen t .There i s no r i gh t t o an in junc t ion. there is only a ba lanc ing and the decision making is d i s c re t i ona ry .

Clearly Erroneous Standard(general rule) - finding has to be clearly erroneous. Appellate courts have nothing to do with f ac t s !- Onlydeal with facts ifc lea r l y e r roneous. This is because the trial court is in a better position to know the facts. The appellate court is givingsome degree ofde fe rence to the trial court.

Matter of Law in review - In standard for review for a matter at law is no deference to trial court. So standard for reviewfor matters of law is: De Novo Rev iew which means they look at it anew or afresh.

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Appellate court can decide it De N ov o and there may be no deference to trial court.Lawson Products v. Avnet

DUE PROCESS & PROCEDURAL REMEDIES Procedu ra l Due Process t o obta in a P rov i s i ona l Remedy (TR O)3 part test (Mathews v. Eldridge was case that tested it.)

1. Government must be involved2. Protected Interest at stake - You need to know if it is a life, liberty, or property involved.3. If so, then adverse party is entitled to notice and a hearing.

3 Types o f Due process Government must be involved because Due process clause talks about no depriviation of life, liberty, or propertyby any laws the gov established ( th i s i s 14 th amen dmen t )

Its issue of any analysis is if the Government is involvedI f t he gov invo lved , you mus t ask : What is the government effecting?

1. Life2. Liberty3. PropertyDAMAGESDEFENSE - STATUTE OF LIMITATIONS

If Statute of Limitations runs, which is the time you can bring a claim. If it runs out, It does not mean you dont have a remedy, itmeans it is just too late to claim it.

There is no singular rule to running of Statute of Limitations1. When Plaintiff Knew or should have known of injury2. When the Plaintiff Knew or should have known of legal relief.

Foreclosure of Remedy SOL has run out.Most of the time SOL is viewed as procedural, which means the forum states sol applies. Borrowing statute used so that someone does not get benefitUnited States v. Kubrickt he c l a iman t has a no t i c e o f Due D i l i gence , t he re fo re i t i s when a Reasonab le pe rson knew o r shou ld have known .Test is when a reasonable person would or should have known.

Notice of Claim statutory causes of action, especially against a government body, call for written notice to defendant concerning the claimwithin a short period of time. This is in order to enable the Defendant to investigate the claim promptly.

Fa i l u re t o f i l e no t i c e o f c l a im bars suit just as statute of limitations bars a suit. Notice of Claim and Regulatory Agencies Common type of time limitation requires a citizen to notify a regulatory agency a set number

of days before commencing suit against an alleged violator.

V I . THE PROPER COURT ( JUR ISD ICT ION ) Jurisdiction - the power of the court to hear and determine the particular case - binding adjudication over case Judgment void if court lacks subject matter jurisdiction - this can never be waived by a party

3 requirements must be satisfied before a suit can be brought in a particular court

Territorial Jurisdiction - power over person and property

Subject Matter Jurisdiction

Venue/Forum Non ConveniensSECTION 1 - TERRITORIAL JURISDICTIONA. INTRODUCTION geographical limit on the place where Plaintiff may choose to sue Defendant based on 14th Amendment and due

process clause

1. In Personam - actions bind a defendant personally, typically providing damages or injunctive relief - can be gained as follows:a. Resident of forum jurisdiction (i.e., domicile)b. Minimum contacts with forum - personally avail themselves of jurisdictionc. Waive right to objectd. Present in jurisdiction I.e., service of process (unless lure by fraudulent means)

e. Constructive consent - appointing government as agent by presence in forum such as involvement in car accident in forum(page 201)i. Can be waived if not objected to prior to filing first pleading/motion - can be waived even if defective service or no

minimum contacts

2. In Rem - action that binds property in the sense of adjudicating the rights of all persons who claim interest in the property3. Quasi In Rem - settles property rights only of specific persons, not against the world as with in rem - 2 types

a. Type one - resolves a dispute about the property itself such as a suit to quiet title which would not extinguish claims of personsoutside the jurisdiction of the court or mortgage foreclosure

b. Type two - action establishes rights to property, but the underlying dispute is unrelated to the property such as a tort actionagainst an absent defendant through an attachment action and the absent defendant is put to the choice either of coming intothe state to litigate the claim at issue or of staying outside the state and losing the litigation through a default judgment

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4. General Jurisdiction - exists when defendant's contacts with the forum state are systematic and continuos sufficientlysubstantial that one may litigate any dispute in the courts of the forum, whether or not that dispute grows out of those contactsa. Minimum contacts test higherb. Cause of Action not associated with minimum contacts defendants activities in the state are so substantial and continuos that

she would expect to be subject to suit there on any claim and would suffer no inconvenience from defending there

5. Specific Jurisdiction - exists when the contacts with the forum are related to the dispute sought to be adjudicated - when this isinvolved the court must consider the relation of the contacts to the cause of action against the defendanta. Defendant intentionally and purposefully placed himself in jurisdiction and cause event that lead to cause of actionb. Contact significant enough for action against him to be fair and reasonable18 th CENTURY THEORY

B. Pennoyer v . Ne f f 1. Issue: Is constructive notice (by publication) upon a nonresident adequate as a basis for in personam jurisdiction in a state court?NO

a. Due Process Clause of the 14th Amendment requires that a defendant be given a just chance to defend himself in an action filedagainst him personally (in personam). This requirement is satisfied if defendant is "properly and seasonably notified" of theaction pending against him.

b. To gain in personam jurisdiction over defendant, and the concurrent power to adjudicate the full dispute between the partiesand award full judgment, the court must see that defendant is personally served with process while actually present in the state

c. Collateral Action - challenge power of Court's action in previous case20 TH CENTURY SYNTHESISC . MINIMUM CONTACTS1. Min imum Con tac t s Tes t (Established by International Shoe Co. v. Washington)

a. Systematic and continuous contact throughout the yearsb. Purposeful act where defendant receive benefits and protection of the law of forum statec. Obligation which is sued upon arose of out the defendant's activities - quality and nature of the cause of action

d. 'Fair play and substantial justice "e. Foreseeability (cannot be the only element found i.e., product in stream of commerce)

2. Additional Elements: Even if minimum contacts established - still must consider the following:a. Burden on the defendant of adjudicating action in forum stateb. Plaintiff's interest in obtaining convenient and effective reliefc. Efficient resolution of controversy from court perspectived. Effect on several states

3. A state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist minimum contacts betweenthe defendant and the forum state

4. Rationale - it protects the defendant against the burdens of litigating in a distant or inconvenient forum and acts to ensure that thestates through their court, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federalsystem

5. Fair and reasonable - ultimate test for constitutionality of Due Process

6. Wor ld-Wide Vo lk swagen v . Woodson - Woodson bought car in NY - accident in OK - sued in OKa. Issue: is forseeability that a product could cause an injury in a particular state a sufficient contact to justify that state's exercise

of jurisdiction over the product's manufacturer? NOi. There are no contacts between s and forum state - although foreseeable that cause injury in any state -

foreseeability test would be impractical - never been acceptable alone that foreseeability would be sufficient for minimumcontact test

7. Ku lko v . Super io r Cou r t - Husband and wife divorce - wife moves to CA with kids - wife's moves to have settlement modified inCAa. Issue: does a parent become subject to the jurisdiction of another state solely because he permits his children to live in that

state? NOi. To the extent that CA provides services that help provide for the well-being of the husband's children, it seem

reasonable to conclude as did the CA Supreme Court, that the husband receives benefits and protections from CA.However, Kulko stands of the proposition that the purposeful act requirements mean that the defendant must receivedirect benefits and protections from the forum state; vicarious benefits and protections are not enoughD. REFORMATION OF MINIMUM CONTACTS

1. Burger K ing Co rp . v . Rudzewe ic za. Issue: do business negotiations and a course of dealing constitution sufficient contact with forum state to permit exercise of

personal jurisdiction? YESb. Even if minimum contacts established - still must consider the following:

i. Burden on the defendant of adjudicating action in forum stateii. Plaintiff's interest in obtaining convenient and effective reliefiii. Efficient resolution of controversy from court perspectiveiv. Effect on several states

c. Can sue in both court of law and equity at the same time, in order to same money.d. The source of subject matter jurisdiction is diversity.e. There was a choice of law provision. Even if they went to Michigan they would still have to use Florida law.f. Why Federal Court? Because lawsuit was between a citizen and a corporation and each were from different states, in order to

have a fair outcome.g. Under the federal rules of civil procedures state that you dont have to make a special appearance you can move to dismiss for

lack of personal jurisdiction and does the same as a personal appearance. (you can do this by a motion to dismiss).

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h. Do not mix up subject matter jurisdiction and personal jurisdiction, they are two separate propositions. You need to have both ifyou are a lawyer and trying to sue.

i. Long arm statute (state legislature writes this): Some states such as Cali say that there long arm statute reaches as far as dueprocess is allowed, other states have lists FL. In FL in order for theyre to be minimum contacts you have to fit in one of the longarm statute.

j. Laundry list long arm statute:

2. Asah i Meta l Indus t ry Co . v . Super io r Cou r ta. Issue: can court exercise personal jurisdiction over defendant who supplies parts to vendor and has very limited contract with

US? NOi. No minimum contacts because Asahi did not intentionally or purposefully market its products in the US - exercise of

personal jurisdiction unreasonable

ii. In this case - can be said that passes minimum contacts test - but not the reasonable test - Note - numerous opinionsfor this case - Court could not agree

iii. Look To: Principal place of business or where they are incorporated. This makes them present or domicile.iv. Plurality: Judges agree as to the result but never as to why.

v. S t ream o f commerce - that is, by delivering the components to Cheng Shin in Taiwan - coupled with Asahi'sawareness that some of the components would eventually find their way into California, sufficient to form the basis forstate court jurisdiction under the Due Process Clause.

3 . Ben su s an Re s t au r an t Co rp . v . K i n g - (l o n g a rm s t a tu t e s i n f ed . Cou r t)a. Federal court dealing with long-arm state, federal court has subject matter jurisdiction.b. Subject matter jurisdiction has nothing to do with long arm statutes at all. Once its is determined the court has subject matter

jurisdiction, then it looks to long-arm statute to see if it has personal jurisdiction which is one form of territorial jurisdiction.

E. NOTICE1. Must be reasonably calculated, under al l c ircumstances, to approve interested parties of the pendence of theaction and avail them an opportunity to present objection2. Mu l lane v . Cen t ra l Hanover Bank & Trus t

a. Issue: is notice by publication a violation of due process when the out of state parties so served are know and have knowaddress? YES

b. An elementary and fundamental requirement of due process in any proceeding is notice must be "reasonably calculated, underall circumstances, to apprise interest parties of the pendancy of the of the action and avail them an opportunity to present theirobjections"

F. SERVICE OF PROCESS Rule 41. Personal Service - personally delivering copy of summons and complaint to individual defendant2. Dwelling house or usual place of abode - process server may leave summons and complaint at the usual place of abode with

person of suitable age

3. Mail - plaintiff may mail 2 copies of summons and compliant, together with waiver and request defendant sign and return waivera. Defendant has duty to minimize cost of service and if doesn't sign - then plaintiff can charge defendant with all additional costs

of serviceb. Returning waiver has the same effect as actual service of process and defendant given 60 days from return of waiver to file

Answer

c. Service not complete until waiver has been signed and returned to plaintiff

4. Agent appointed to accept process - service may be made on someone appointed to accept service - will constitute personalservice on the party

5. Compliance with state law - service of process is sufficient if it complies with the law of the state in which the District Court issitting or the state in which the service is effected

6. Corporations and unincorporated associations - can be made by obtaining waiver, service according to state law or bydelivering a copy of summons and compliant on officer, manager or other authorized agent of corporation

7. Government defendants - special provisions must be satisfied as listed in Rule 4(I) and (j)8. In rem and quasi in rem jurisdict ionsa. Actions relating to real property - personal service must be attempted, but allows for publicationb. Other actions - where personal jurisdiction cannot be obtained, the federal court may assert quasi in rem jurisdiction based on

seizure of defendant's assets within the jurisdiction in accordance with the law of the state where the District Court is located

9. Geographical scope - geographical scope of service of process in District Court is the same as that in the state court except 4(k) federal cou7rt may exercise personal jurisdiction only to extent it could be exercised by courts of the state in which federal courtsits

a. Foreign defendants - must have sufficient contacts with the US as a whole for suits arising in federal courtb. Federal Statutes - some federal statutes provide for nation wide jurisdiction in suits brought under them such as anti-trust and

securities suits

c. Bulge jurisdiction - third party defendant impleaded into an existing federal suit under Rule 14 and others under Rule 19, may beserved and brought within jurisdiction of the District Court, provided that the party can be served within 100 miles of thecourthouse in which the action is commenced - designed to permit efficient adjudication of cases brought in federal courtsG. LONG ARM STATUTES1. GENERALLY

a. Definition - jurisdictional statutes that reach across state linesb. The statute asserts the state's authority to reach its long arm across the state boundary into another state or country and to

subject a person or corporation to its jurisdiction

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c. CA - to the full extent permitted by Due Process Claused. CPLR- New Yorks Rules of Civil Proceduree. Most States - limit jurisdiction by statute2. FEDERAL LONG ARM STATUTESa. Federal courts usually asserts in personam jurisdiction to the same extent as the state court in which the federal court is sittingb. This is true in cases where the claim arises under federal law and where subject matter jurisdiction is founded on diversity of

citizenshipc. Some federal statutes explicitly provide for in personam jurisdiction beyond that allowed by state (i.e. federal statute actually

contains a long arm statute)H. PRESENCE1. PROPERTYa. Sha f fne r v . He i tne ri. Issue: Does minimum contacts standard apply to the exercise of in rem jurisdiction by a state? YES

(a) However, no jurisdiction here because stock has nothing to do with cause of action or relate to transaction betweenparties - Otherwise, yes minimum contacts2. PERSON

a. Burnham v . Super io r Cou r t o f CA i. Issue: may a state exercise in personam jurisdiction over nonresident who was personally served with process while

temporarily in the state, in a suit unrelated to his activities with the state? YES(a) However, fraudulently enticing defendant into state will not satisfy the jurisdictional requirementsI. CONSENT TO JURISDICTION - FORUM SELECTION CLAUSES

1. Carn iva l C ru i se L ines , Inc . v . Shu t t sa. Issue: is a forum selection clause contained on a ticket for passage on a ship enforceable? YES

i. Forum selection clause must be fair and reasonable - Unequal bargaining power not sufficient determination alonethat clause not to be enforcedJ . OBJECTING TO JURISDICTION

1. In su rance Co rp . o f I re land v . CDB a. Issue: may District Court proceed on the basis that personal jurisdiction can be established as a sanction over a party who fails

to comply with discovery orders directed at demonstrating jurisdictional facts? YESb. Rule 37 - sanctions for failure to comply with discovery orders

c. Court said Trial Court could use this during pre-trial stage and that Court did have jurisdiction over the for this aspect of theproceedingsK. RELATION OF TERRITORIAL JURISDICTION TO CHOICE OF LAW

1. Generally - In Federal and State Court the question arises as to which state law to apply to the issues in controversy when more thanone state's laws can be applied

2. Ph i l l i ps Pe t ro leum Co . v . Shu t t s a. Issue: May the forum state apply its own law to every claim in a class action even though the forum has not significant contacts

to such claims? NOi. Test for choice of law: significant contacts - state must have significant contact with the actual property at issue in

controversy - this way not arbitrary or unfairii. Apply forum law unless compelling reason why shouldn't because forum law will be arbitrary and unfairiii. Each state has different rules which govern test for choice of law - following law of another state called "comity"SECTION 2 - SUBJECT MATTER JURISDICTION

Subject matter jurisdiction concerns the authority of a court to adjudicate a particular type of suit Want of subject matter jurisdiction cannot be cured by waiver or consent of the parties - even if both parties agree to haveparticular controversy heard in a particular courtFEDERAL COURTS Courts of limited jurisdiction based on Article III of the Constitution

Jurisdiction over the following types of cases Federal Question jurisdiction under 1331 - original jurisdiction Federal Statute gives original jurisdiction to federal court Diversity cases under 1332 - in this case state and federal court have concurrent jurisdiction because case can beheard in either court

Admiralty Jurisdiction under 1333

Federal Interpleader under 1335FEDERAL QUESTION JURISDICTION - 28 USC 1331A. Statute construed very narrowly and complaint must be "well pleaded" - plaintiff cannot file in federal court assuming that defendant willplead an Affirmative Defense a federal statuteB. To satisfy the federal law question as the basis for the cause of action, the following must be shown:

1. Federal law is likely to form an important part of the case2. Obvious presence of federal law as the basis for the cause of action3. Parties know as soon as the complaint if filed that the federal jurisdiction is presentDIVERSITY JURISDICTION - 28 USC 1332

C. Purpose - protect out of state defendants from local prejudiceD. Subject matter defined by who the parties to the suit are rather than the subject matter of the underlying litigation (with some

exceptions such as particular causes of action and dollar amount)

E. Citizenship1. Natural Persons

a. person is a citizen of a state in which he is domiciled

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b. domicile is distinct from residence - to be domiciled must reside in a particular state with the intent to remain there indefinitely2. Artificial Persons

a. A corporation is treated as a citizen of both its state of incorporation and its principal place of businessb. An unincorporated association is a citizen of all the states in which the members of the association are citizens

F. Complete Diversity1. All plaintiffs must be of a different citizenship from all the defendants2. Complete diversity is a statutory requirement - not a constitutional on3. A diverse defendant seeking to dismiss a non-diverse defendant in order to permit removal must show that plaintiff joined non-

diverse defendant fraudulently as means to defeat removal

G. Amount In Controversy plaintiffs amount in controversy presumed to have been made in good fait1. Legal Certainty Test - defendant opposing jurisdiction must prove with legal certainty that plaintiff cannot recover damages in excessof$75 ,000 .012. Injunctions and Plaintiff's or Defendant's Viewpoint - can be difficult to calculate because value to each party will be different3. Aggregation of Claims - the general rule is that a plaintiff may aggregate all claims brought in a single complaint, even if the causes

of action are unrelated to one another to satisfy the jurisdictional amount

4. Counterclaims - amounts sought in permissive counterclaims are not considered part of the amount is controversya. However, when the defendant seeks amount over $75,000 in a compulsory counterclaim in state court and then removes the

case to federal court based on that amount in controversy, the cases are split

H. Improper or Collusive Assignments or Joinder to Creat e Diversity - pursuant to 1359, assignment or joinder of parties maynot be done improperly or collusively in order to invoke jurisdiction

I. Probate and Domestic Relations - diversity jurisdiction does no t i n c lude administration decedent's estate or domestic relationssuits seeking divorce, alimony or child custody decreesSUPPLEMENTAL JURISDICTION (28 USC 1367)J. DEFINITION jurisdiction over claims brought between existing parties or between existing and new parties forwhich there is NO federal subject matter jur isdiction if those claims are considered independently

K. 1367 (a) if plaintiff brings a proper federal ( 1331) claim so that the court has or iginal jurisdiction, the court mayhear all claims that are a party of the case or controversy same common nucleus of operative fact except as provided in (b) or (c)1. In any civil action of which the district courts shall have original jurisdiction, the court shall have supplemental jurisdiction over all

other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case orcontroversy under Article III of the Constitution

2. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. (independentjurisdiction not a problem here because courts jurisdiction of original matter based on federal lawL. 1367 (b) - If jurisdiction is based solely on 1332 diversity jurisdiction then al l requirements of diversity muststil l be met when adding all supplemental claims

1. No supplemental jurisdiction under (a) over claims by plaintiffs against persons made parties under following rules where exercisingsupplemental jurisdiction would be inconsistent with the jurisdictional requirements of 1332

a. Rule 14 - 3rd Partyb. Rule 19 - Joinder of Persons Necessary for Adjudication)c. Rule 20 - Permissive Joinder of Persons

d. Rule 24 - InterventionM. 1367 (c) Supplemental jurisdiction discretion of district court and based on:1. Fairness2. Whether state law claim predominates3. Whether would require court to decide sensitive or novel issues of state law4. Whether hearing claims together might confuse the jury5. Whether federal issues would be resolved early in case leaving only state law claimN. Supplemental Jurisdiction - 1990 statutory merger of 2 judge made doctrines:1. Pendant Jurisdiction additional claim brought by the same plaintiff against the same defendant - Court has jurisdiction over case

because plaintiffs first claim is based on federal question jurisdiction and additional state law claima. TEST:i . Common nucleus of fac t and would ordinar i ly be expected to t ry them a ll in one judi cia lproceedings; ANDi i . Federal c laim must have suff icient substance to confer subject matter jurisdict ion on Federal Court

(a) Pendent jurisdiction may be exercised only when the relationship between he federal and nonfederal claims is such

that it can be said that entire lawsuit before the court comprises but one constitutional case.(b) Tested at the beginning of pleading complaint must be well pled to survive

2. Ancillary Jurisdiction additional claims brought by existing parties other than the plaintiff (usually the defendant) or over claimsbrought by or against additional partiesREMOVAL (28 USC 1441)O. 1441(a) any action brought in the state court in which the district court shal l have jurisdiction may be removed bythe defendant to the district court wh ere such action is pending diversity requirements must be met

1. In a multi-defendant case, all defendants must agree to remove or the case will stay in state court

2. EXCEPTION: Action may not be removed by defendant to district court if defendant is a resident of the forum state and jurisdictionof federal court based solely on diversityP. 1441(b) if federal question jurisdiction then action may be removed by defendant without regard to cit izenship ofparties

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Q. 1441 (c) if action has federal question and state law claim then removal can be made by defendant butdiscretionary matter for district courtR. 1441 (e) amendment which al lows the federal court to acquire jurisdiction on removal even if the state courtwhere the case was brought lacked subject matter jurisdiction over the claim initially1. Example: such as bringing a claim for breach of contract and patent infringement and then removing state court lacked subject

matter jurisdiction over patent cause of action because federal court has exclusive jurisdiction but amendment allows federal court toobtain jurisdiction over on removal no longer has to dismiss and then require to amend complaint once in federal courtS. Generally Federal Question Removal:

1. Plaintiff is the master of his complaint (also consider the well plead complaint rule)a. Plaintiff can forgo a federal-law cause of action to prevent removal from state court to federal court by confining complaint to

state-law cause of action plaintiff free to ignore this cause of action to prevent removalb. In diversity case if case removed to federal court because all elements of diversity are met plaintiff may not reduce claim

amount simply to have remanded back to state court2. Federal defenses may not be used as a basis for removal

a. Removal based on plaintiffs complaint not on an anticipated defense/counterclaim of the defendantb. Statute has been construed to mean that removal is property only if the plaintiff could have filed the suit in the federal court in

the first placeT. Artful P leading and preemption removal1. Supreme Court has ruled that removal is permitted where plaintiff has tried to plead a state law cause of action that is entirely

preempted by federal law and only conceivable cause of action to plaintiff is federal2. Allows defendant to remove complaint to federal court even when complaint on its face shows that only state law claim because

cause of action artfully pleadU. D iversi ty Removal1. Narrower Scope of Removal

a. Removal in a diversity is narrower than original jurisdiction in federal courtb. Removal unavailable if any defendant named is citizen of the state in which suit is brought

2. Devices to defeat diversity

a. A plaintiff may defeat removal in a diversity suit by choosing to forego a damage recovery in excess of $75,000b. 1359 does not permit improper or collusive assignment or joinder to invoke diversity but is silent whether this issue wouldprevent to defeat diversityi. US Sup Court has ruled that it does not but Statutorily have attempted to do soV . Non-Removab le C la ims

1. Some claims are specifically made non-removable if filed in State Court cannot be removed to federal court even through cause ofaction based on federal statuteW. Separate and Independent Claims

1. 1441(c) allows for removal of otherwise non-removable claims or causes of action when combined with a separate and independenclaim or cause of action cognizable under original federal question jurisdiction of 1331

2. However, 1367 extends supplemental jurisdiction in federal question cases to the full extent permitted by the Constitutiona. Remand - 1441(c) permits remand to state court of all matters in which state law predominates courts have construed to

mean that remand permitted of entire case, including both federal and state claims, when matters of state law predominate inthe case considered as a wholeX. Remand orders are non-appealable remand to state court of cases removed to federal court under 1441 are notreviewable on appeal or otherwise

1. Not reviewable when court remands based on lack of subject matter jurisdiction even if clearly erroneous2. Supreme Court has held that remand order can be reviewed if district court remands for other reasonsY . P ro cedu re - 1 44 61. Defendant has 30 days from service of the complaint to remove if removal based on later pleadings then defendant has 30 days

from the filing of that pleadinga. However, if removal based on diversity then must be done within 1 year of the commencement of the action or barredb. Plaintiff must move for remand back to state court within 30 days of removal and action for remand heard by district court not

state courtCHALLENGING FEDERAL SUBJECT MATTER JURISDICTION notes (page 445)Z. A defect of federal subject matter jurisdiction is not waiveable in District Court or on appeal.AA. When can defect be raised:1. Challenged directly until a judgment has become final and appeals are no longer possible2. Challenged in the District Court any time before judgment3. Challenged on appeal, even if not previously raised in the trial by any party4. Raised sua spo0nte by the District CourtSECTION 3 VENUE5. Statutory limitation that imposes constraint on location of litigation NOT Constitution6. Venue defects are wiaveable by parties unlike subject matter jurisdiction by failing to timely object7. Venue issue is not of changing courthouse but whether case gets dismissed8. Generally not appealable because not final orderBB. 1391 - Venue1. 1391(a) diversity cases2. 1391(b) all other cases except diversity3. Provision where suit can be filed same for (a) and (b) (essentially)

a. District where any defendant resides if all from same stateb. District where substantial portion of cause of action arosec. District where defendant [subject to personal jurisdiction at time suit commenced diversity] or [may be found federal

question] if not able under (a) or (b) above4. 1391(c) corporate defendants

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a. corporate defendant reside for venue purposes in any judicial district in which its contacts would suffice to support personaljurisdictionCC. CHANGE OF VENUE - 1404

1. Considers the following 2 main factors:a. The private interests of the parties such as:

i. Residenceii. Access to sources of proof iii. Ability to subpoena witnessesiv. The need for a view of premises involved in the litigationv. Whether a judgment can be enforced in the forum

b. Systemic interestsi. Appropriate distribution of cases among the federal districtsii. Local decision of local casesi ii. Distribution of the burden of jury serviceiv. Trail court familiarity with applicable lawJURISDICTION

England Unitary Court system US Federal System of Government- Numerous courts

Issues 1. Terri torial Jurisdict ion Territory of the borders of the state.2. Subject Matter Jurisdiction Could be diversity, federal3. Venue The correct courthouse4. Inconvenient Forum (Forum Nonconviens) Inconvenient because the jurisdiction is too far away and would be hard to work in

court there. (too hard to get there)Jurisdiction Subject Matter Jurisdiction Can the court hear issues of that nature. (Is there authority?) Diversity. Territorial Jurisdiction can the court hear cases Persons or property or entities(corporations)(Can = power or authority)

Long a rm s ta tu tes relate to territorial jurisdiction. Where does the cou r t ge t t h i s power?

Federa l power from U.s. constitution and U.S. congress Ar t i c l e 3 Cou r t s are Federal Courts.S ta te power comes from state constitution and state legislature.

Tribal courts Indian Tribe Courts (Indian Child Welfare Act).You cant use the state law when there is a Federal law and in event of a conflict Federal Law applies;

Diversity jurisdiction When a Fed court hears a state law case Er ie Doc t r ine whos law the federal court uses when the basis for the jurisdiction is diversity. Because Cons Art III limitstypes of cases to be heard Diversity Federal Court subject matter jurisdiction- will cover Indians

Genera l Ru le -Federa l cou r t s d o no t h ave ju r i sd i c t i on ove r s t a te l aw c la ims Except ion i s where the re i s D ive rs i ty (when pa r t i e s come f rom o the r s t a tes )

Subject Matter Jurisdiction a statute gives the court jurisdiction. It is a Class action Class Action Whole bunch of people Pendent Jurisdiction Federal claim with a state claim also which comes from the same cause of action. It is now called a Supp lemen ta l

Ju r i sd i c t i on.You can sue in the f ede ra l cou r t in the state the Defendant is from. (So if D is from California and screws up in Arizona, you can sue in Fed courtdue to subject matter jurisdiction.

Special Appearances Made to say that we should not be in this jurisdiction and are showing up specially to tell the court this and to get thsuit dismissed.

In Federal Court System Use a Motion to dismiss 12b2 MOTION lack of jurisdiction over the person. General Appearance That they admit that they acknowledge that they should be in court because they do business in that jurisdiction.

You are saying that you belong here.

Declaratory Judgement - If you dont like the jurisdiction chosen by the Plaintiff, you can file a declaratory judgment action in Federal Courtto say that the chosen court lacks jurisdiction to hear the case.

Motion to Quash Service of Summons or Complaint motion to dismiss the complaint. Effect Doctrine If you do something that has effect in a jurisdiction, even if you never step foot in the jurisdiction, you are accountable and

that jurisdiction has control over you.

Domestic Relations exception to Federal Court jurisdiction Even when there is d ive rs i t y, Federal courts dont heardomestic relations case.

Long Arm Statutes Done because of drivers driving through states. This is an implied consent to the laws of the forum state.5 Types of Territorial Jurisdiction Power of the court over people and things. In personam jurisdiction Personal Jurisdiction Jurisdiction over his person. When you sue for damages and want moneyIf person is in the state state has jurisdictionIf person is not in the state then no personal jurisdiction, but if you attach the property, you have quasi in rem type 2. In rem actions that bind property in order to adjudicate the rights of all persons who claim interest in the property. Tosettle all claims to a specific sum (quiet title action)

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Quasi in rem Settles property rights of only specific persons. It does not settle rights in property against all persons oragainst the world.1. Quasi in rem Type 1 Involves a specific dispute about the property itself.2. Quasi in rem Type 2 Establishes rights to a property, but the property is unrelated to the underlying suit.Express or implied consent to the jurisdiciton is another form of jurisdiction over a person.

****Pennoyer v. NeffHe was nevernotified and the manner of publication was improper. The court did not have jurisdiction over the defendant in the first

lawsuit. Had they a t t ached the proper t y be fo re the su i t , t he re wou ld have been adequa te no t i c e o f t he su i t . There was nopersonal jurisdiction over him because he was out of state.and he is a non resident of Oregon. If there was no land, then there was NO WAY to holdPennoyer with If he is a resident, They can get personal jurisdiction over him.

The Cou r t canno t rea ch the De fendan t ou t s ide the t e r r i t o r i a l l im i t s o f t he cou r t s j u r i sd i c t i on i f t he De fendan t i s aNon res iden tThere is a limit on the ability to rea ch people out of the state.Test the test is whether he is a resident can get you Personal Jurisdiction;

1. Was Defendant Legally in the state3 2. Was the Defendant literally in the state.

Attaching property - You must attach the property in the beginning of the suit, not after the judgement! Corporations - Residency of a corporat ion

1. Where they are incorporated.2. Principle place of business (Where there headquarters are.)

Res iden t Agen t person able to accept service on behalf of corporation.Serv i ce Pu rposes states must designate for service of process****International Shoe v. Washington - D were sued in State of Washington for nonpayment of Work comp. D. says that we never stepped

foot in Washington and we never went to Washington. Therefore Washington State court has no i n pe rsonam ju r i sd i c t i on over the Defendant.The D uses the theory ofV io la t i on o f Due Process C lause o f t he 14 th amendme nt . (bu rden o f i n te rs ta te commerce . ) . In Personam - Personal jurisdiction analysis for fa ir play and substantial justiceMultipart test Balancing Test (International Shoe v. Washington)

Presence - Benefiting from presence in that state.

Minimum contacts does two functions1. Protects the defendant against the burdens of litigating in a distant or inconvenient court2. Ensures that state courts do not reach beyond their limits imposed on them by status of co-equal sovereigns in a federal system.

Minimum Contacts Not a mechanical concept. Contacts must be:1. Continuous and systematic 2. Quality and Nature of the contacts . Court weighs the quality of contacts3. Fair Play and Justice - Such that maintenance of a suit does not offend traditional notions of fair playand substantial justice. ANon res iden t de fendan t may be he ld under a ju r i sd i c t i on as l ong as i t isf a i r .4 . H a s t he D s u b je c te d h i ms e lf t o th e l aw s o f th e f o ru m .Fo reseeab i l i t y p lu s Pu rpose fu l Activity availment of the privilege of doing business in that state. (intended to

take advantage). Foreseeability i s no t enough., Pu rpose fu l - What constitutes Purposeful! It must be Reasonab leand Fa i r .

5 . Pu rpose fu l l y d i rec ted to fo rum. Advertising in a Forum State is acceptable as a purposeful activity

Now apply the facts to this doctrine above. Ju r i sd i c t i on o f non res iden t De fendan t s : - when a Nonres iden t De fendan t causes the Tort or contract action in the forum state-

what is enough to es tab l i sh m in imum con tac t s in: (Differnece in the degree and types of contact) Specific Jurisdiction The jurisdiction attaches when the conduct arises out of the conduct in thestate and must beminimum contacts. It must arise in the Forum s ta te . Contacts must be greater. There has to be more contacts if the Defendantsactivities arising out of the conduct because ofFa i rness .

Mus t be f a i r t o be ac coun tab le General Jurisdiction The jurisdiction attaches when in state activities Cause o f ac t i on does no t ar i ses in thefo rum s ta te . Does not arise from d activity in the Jurisdiction. Add ing to t es t (BK case)

Ba lanc ing Tes t t o add to M in imum Con tac t s Bu rden i s on the De fendan t1. Burden on the Defendant.2. Forum states interest in adjudicating the case.3. The plaintiffs interest in obtaining convenient and effective relief.4. Interest of several states in furthering fundamental substantive social policies.

***Once you f i nd m in imum con tac t , you mus t de te rm ine i f i t i s un reasonab le o r un fa i r t o t ry i t t he re***I t i s poss ib le tha t the re w i l l be m in imum con tac t s and i t wou ld be un fa i r anyway .

Worldwide Volkswagen v. Woodson.Kulko v. Superior Court

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Helicopteros Nacionales de Columbia, S.A. v. Hall

Refo rmu la t i on o f M in imum Con tac t s Additional & different factors around jurisdictionElements dont always match facts and you have to make an argument Match fact pattern to body of doctrine on finalThe following two cases show a refocusing on what is important to the Supreme Court.

Burger King v. RudzweiczAsahi Metal Industry Co. v. Superior Court

S t ream o f Commerce - Putting something into the stream of commerce is not enough to establish minimumcontactsNotice Notice must be done by means calculated to inform the desired parties . Notice in Publications - Notice of claim must be adequate. Publishing notice in a local publication is not sufficient to inform parties out of

state of a notice.

Ways to Serve Notice1. Notice in person2. Notice by mail If they dont accept it in the mail, then you can get the court to order them to reimburse you for theexpense of serving them again.3. Notice to appointed agent (substituted service)4. Notice by publication If you know there address, this is unfair, you can mail them., If you dont know the location,then it may be fair.

Reasonably calculated to apprise the party of the pe ndency of the action. Minimal amount of notice necessary in constitutionalcases. Must show that a reasonable method was used.

Rules of Service of Process Federal Rule 4 Florida Rule for Process in Florida 1.070

Sheriffs can serveAnyone over 18 not a party can serve as long as they are appointed by the court.

Parties to the suit A Lawyer is not a Party to a lawsuit Only Plaintiffs and Defendants. In Federal Court, a lawyer can serve processbecause he is

Documents

Civ Pro Dale (b)