Civ Pro I (Adams)

8/2/2019 Civ Pro I (Adams)

1/44

In order for a court to hear a case, it must have all three elements: personal jurisdiction,subject matter jurisdiction, and venue (the three rings)

On exam, analyze: three rings, three filters, argue both sides of whether service wasproper

On exam: Step 1: discuss if service was properStep 2: discuss if fed. ct. or state ct. fed. court only if diversity or federalquestion in cause of action

Step 3: run through three filters, keeping in mind general v. specific jx

first, organize the case by ; Then for each :

A. Start out with the question ofservice:1) Constitutionality: Due Process requires notice reasonably calculated, under

all the circumstances, to approse interested parties of the pendenc of the action

and afford them an opportunity to present their objections; TAKE INTOACCOUNT PRACTICALITY AND CIRCUMSTANCES2) Statutory:

How service is effected: comes under statute filterFederal Rule 4a) summons in specified formb) i.e. summons form with seal, and time limitc) service (by whom made)

by any person eighteen or older who is not a party(attorney can serve; wife or husband of can serve) court may direct service by U.S. Marshall, Deputy U.S.

Marshall, etc. at request of

d) waiver of service: have 30 days to respond to a request for waiver ofservice; if you dont accept waiver of service, pays cost of processserver even if later prevails ( asking for waiver of service might

make you lose under SOL)

Illinois rule cannot be used yet because the proper form has yetto be approved and adopted

e) service upon whom: abode service can leave it with someone at theirhome who is of reasonable age and discretion (in IL, thirteen years oldand older see IL 2-203 have to inform person of contents, AND haveto mail a letter)

housekeepers usually count can appoint (actual or constructive) agent for service

IL 2-202 general rule, sheriff or coroner will serve except counties withless than one million population, which may employ a civilian or peopleregistered as private detectives

B. Then, move on to personal jurisdiction1) Federal Constitution

1


2/44

a) Start out with International Shoe test (such minimum contacts that it does notoffend traditional notions of substantial justice and fair play personal jxissues) argue which way court is likely to rule

b) Then, look at nature and quality ofs act (systematic and continuous tends to

be used in most general jx questions);

(1) Purposeful availment(2) Foreseeability (whether could foresee he would be haled into ct in Ill)(3) Forum states interest in hearing the case(4) s interest in effective and convenient relief

(5) Interstate judicial systems interest in efficient resolution of the controversy(6) Substantive social policies of the several states(7) Then, look at hardship (inconvenience for to travel to forum state; courts

say with modern modes of travel, this is not a big deal)c) Individual liberty v. state sovereigntyd) Connection between , litigation, and the forum

2. Then, look at statutory (ex. Ill. long-arm statute)2-209 (a) (specific jx) does causeof action arise from:(a) commission of tortious act within the state(b) transaction of business (tenuous v. substantial)

3. Then, look at state constitution (for Illinois, due process = fair just and reasonable;also look at fiduciary shield)

4. In K cases, look at forum selection clauses

Dont do K analysis in a clearly tort case, but if it could be brought inboth, analyze it both ways

C. Then, analyze venue:Test venue two ways:(1) Test through the statute (venue is entirely statutory, except in Illinois, which

interpreted the constitution to apply State statutes on venue:(a) 2-101 venue proper in

county of residence of any

where transaction or some part thereof occurred, or where cause ofaction arose (ex., radio contact during ambulance ride) if all s are non-residents of state, action can be brought anywhere in

state if there are several s in different counties, you can have your choiceWilliams an Illinois case, the only case in the nation to decide venueunder constitutional issue of Due Process; said ifs are indigent, violates

due process to set venue too far away

(b) 2-102 businesses

2


3/44

corporation any county where it has a registered office, any otheroffice, or where it is doing business

what does doing business mean? Although doing business is interpreted pretty loosely in Ill. forpersonal jx, the courts are stricter for venue purposes. For venue, the

must do usual and customary business within the county in whichvenue is sought.

partnership where either partner is

(c) 2-103 real estate county where the real estate is located

(d) 2-103(e) insurance company: where any is located

(e) Corporations: for venue purposes, a corporate is said to reside wherever it issubject to personal jx.

(2) Test through forum non conveniensa) State court: no statutory mechanism for transferring elsewhere based on forum

non conveniens Torres v. Walsch Supreme Court said a trial court has an inherent power totransfer a case to another county within a state, or dismiss so it can be broughtin another state or country; both transfer and dismiss come under forum nonconveniens

(b) General principles:1) thes choice of forum should generally be undisturbed

a) the has the burden of proofb) the was the one injuredc) there are already other means to protect

d)protect interests of forum statee) reduces litigation gotta choose to favor one or the other, or the constantarguments over venue would eat up court time

(c) GILBERT GUIDELINES: (use these to decide if case should be transferred toanother county)Factors pertaining to the private interests of the litigants (important):

1) relative ease of access to sources of proof

2) availability of compulsory service for attendance of unwilling, and thecost of obtaining attendance of willing, witnesses3) possibility of view of premises, if view would be appropriate to theaction4) all other practical problems that make trial of a case easy, expeditiousand expensive

Factors pertaining to the public interests:1) administrative difficulties flowing from court congestion

3


4/44

2) the local interest in having localized controversies decided at home3) the interest in having the trial of a diversity case in a forum that is athome with the law that must govern the action4) the avoidance of unnecessary problems in conflict of laws, or in theapplication of foreign law

5) the unfairness of burdening citizens in an unrelated forum with jury duty

Do NOT consider:1) fees it will cost to transfer2) which party the law favors (unless moving it would squelch the suit)

Has to be factors substantially more in favor of moving, or courts will leave it where it is;Ill. state courts are less likely to transfer than fed. courts are

HAVE TO FILE A REMOVAL NOTICE BEFORE FIGHTING A JX ISSUE

Change in substantive law by changing venue not a consideration unless alternativeforum is clearly inadequate or unsubstantial

Federal case transfers:1404 for transfer even though venue was proper1406 where venue was improper where filed transfer it1407 multi-district litigation provision1631 when filed in a court without jx, transfer it to a court with jx(which section you bring it under makes a difference for conflicts law)1406 do not use transferors law (because venue wasnt proper there)1407 lets you consolidate, for discovery and pre-trial proceedings, a series of cases on thesame basic issues (ex., tobacco cases, plan crashes)

Forum non conveniens transfers to another county, or even perhaps into state court

Forum non conveniens in Illinois:Rule 187 motions on grounds of forum non conveniens If filed within six months, must waive objection to service

If SOL has fun out, must waive that defense Supreme Ct. Rule 306 (a)(4) can appeal during trial from an order of the circuit

court granting or denying a motion for a transfer of venue based on the assertion thatthe defendant is not a resident of the county in which the action was commenced, andno other legitimate basis for venue in that county has been offered by the

Under Boner, court says factors have to weigh substantially in favor of before a judgewill waives choice ( courts have leaned toward finding St. Claire County okay; now,

supreme court has begun giving summary orders against letting people forum shop their

way into the 5th district [St. Claire County/Belleville])

1) attorney convenience not particularly relevant

4


5/44

2) jury bias is one of the factors to be considered in relative advantages andobstacles to a fair trial

3) trial judge says he can move things along, so burden on courts no problem4) Peabody has significant presence in 5th district that residents of that forum have

interest in adjudicating the case

5) Dont consider inconvenience of

if there are strong reasons for

to choose thatforum6) thes choice is entitled to less deference when is not a resident of the chosen

forum

Fed. Rule 12(b)(2) motion to dismiss for lack of personal jxFed. Rule 12(b)(3) motion to dismiss for improper venue28 USC 1404: changes of venue

First, moves for dismissal; then if they dont get that, they try to get transferred under1404; for convenience of parties and witnesses; in the interests of justice

CAVEATS:(1) If youre going to transfer, the court to which you are transferring must have personal

jx, subject matter jx, AND proper venue the three rings(2) Law of transferor court applies in the new court (court in state where its originally

filed)(3) Have to raise it before the trial on the merits or its waived

Where there is any is joined in good faith: under 2-101,s have to be joined in goodfaith

D. Then, analyze smjxFederal diversity jx: 1332:

1) amount in controversy requirement ( > $75,000)2) cant have a from the same state as any AT THE TIME THE CLAIM IS

FILED; doesnt apply to third party s because they are brought in after filing has burden of pleading diversity

domicile means you live there at time of filing and have no definiteintention to move (minority view, intend to remain there permanently; majorityview, plan to remain indefinitely)

citizen under 1332 means U.S. citizenship, or permanent resident alienstatus, plus domicile

permanent resident aliens are considered to be from the state in whichthey currently reside

3) corporations under 1332 (c) different from citizenship for venuea) limited partners considered as well as general partners; in limited partnerships,

a citizen of where an partner is a citizen, even a corporate partner

5


6/44

b) associations (ex., labor union, unincorporated); citizenship is that of every oneof its members

c) place of incorporation and principle place of business circuits vary in testusedi) where is nerve center/CEO/administrative offices?

ii) Where is everyday business activityiii) Whats the center of activity AND the nerve centeriv) Courts increasingly ask where bulk of activity takes place

Domestic relation exception: There is usually a domestic relations exception fordiversity; federal courts generally wont enter into divorce, alimony, custody; but, wherethere are ordinary tort issues related to domestic relations, then there is jx

Amount in controversy: if pleading is for amount in excess of $75,000, and is in goodfaith, then amount in controversy will be met even if award turns out to be less

Equitable relief: How do you measure? Look at one of four things:1) value of injunction to2) cost to of complying3) cost or value to party invoking federal jx4)

The fact that the Rules allow joinder does not expand smjx; joining claims does NOTaggregate the amount in controversy. If one of the parties has enough, and the other onedoesnt, under 1332 (m) and 1367 (b) may give supplemental jx if other claims arise fromthe same claim

Exception: except bys against s made parties under Rules 14, 19 (necessary

parties), 20 (joinder of parties), or 24 (intervention)

NOTE: s can be joined under Rule 20 and still okay

Determining smjx:1) ask if smjx under 1331 (federal question)2) if no, ask if smjx under 1332 (diversity w/ amount in controversy) no aggregation

allowed among more than one, but one CAN aggregate all of his own different

claims against one (for example, if you have a K action and a tort action, you can addall the claims to meet the amount in controversy)

3) if no, ask if smjx under 1367(b) (supplemental jx) ONLY for diversitya)

first does it meet 1367 (a) (i.e., is it NECESSARY ALWAYS ask this first)b) if yes, skip to 1367 (c)c) if no, go to b (diversity)d) then go to c

NOTE: state battery action is a federal question if somebody gets beat up by police officerand his friends under 1983; patent disputes are also federal question

6


7/44

If you have enough $ against 1, but not 2, you CANT bring action against 2 under

either 1332 or 1367 (which was enacted in 1990)

Class actions in diversity, USSC has said each and every member of the class must meetamount in controversy, although some courts say 1367 changed that

BUT: single claim by more than one person (ex. with joint interest, like partnership) is notthe same as aggregation of the claim

Supplemental jx: used to be two kinds1) ancillary if has compulsory cross claim w/o sufficient $, then ancillary jx; or, if

claims against third party for more than minimum $2) pendent federal question issue AND state law issue

UMW v. GibbsIf state claim and federal claim are parallel, both can be heard in federal court; if federal

claim drops out, the court can still hear the state issue or, at its discretion, may drop thestate claimConsiderations:1) Was state issue the real issue2) When federal claims were dismissed (before trial, factors weigh in favor of

dismissal; if dismissed on directed verdict, can probably go forward)3) Pre-emption: if federal law has so filled the field of law theres not much room for

state law4) Jury confusion5) ?

Reflected in 1367 (c); up to courts discretion 1367 was enacted to allow a to sue

several

s in federal court on state issues (including third party

s)

As a matter of case law, Gibbs says sufficient federal claim can anchor state claim withpendent jx; is then up to court to decide whether to grant pendent jx

If theres exclusive jx on federal claim, courts might not dismiss

Concurrent jx: when federal court and state court both have jx

PERSONAL JURISDICTION

(On exam, argue all the following: federal minimum contacts, traditional notions ofsubstantial justice and fair play; Illinois fair, just and reasonable; fiduciary shielddoctrine; Illinois statute)

7


8/44

Personal jurisdiction:1) in personam (jurisdiction/power over the person)

a) presence (in hand, in-state service)b) consent (e.g., corporations do business there, agree to be available for service

there, incorporate there

2) in rem (jurisdiction/power over property, including intangibles such as stocks and debtsowed)a) direct in rem (ex., quieting title)b) quasi in rem (really over K issues, not over the property itself)

Affect of Full Faith and Credit Act: if courts in one state wouldnt give a case jx or effect,then another state cant give it effect

If you dont think youre subject to personal jx: has to be raised in first response or not atall. Options:A) just dont show up

suffer default judgment then collaterally attack if enforcement attempted

drawback if that fails, can NOT raise other defenses on merits

Under federal rules and state statutes patterned on federal rules:B) if you make a pre-trial answer (pre-answer motion):

1) (ex.) if you dont want to do the investigation to admit or deny, or maybe you dontwant to admit

2) must raise defense of lack of personal jx

3) can still do discovery while youre waiting for the court to reply

C) if you dont make a pre-trial answer (if you wait, may possibly dismiss)

Note: failure to do either C or D results in waiver of the jx defense (if omitted from amotion with other issues)

D) If you raise personal jx defense, CAN join it with other defenses or objections

E) Can waive it because this is a good place to try it and it [the case?] can be broughtelsewhere

Under other state systems:A) Must raise jx claim by making special appearance (permits to object to jx w/o

bringing self under jx) Now a bill pending in legislature, in the House, which will let you bring othermotions while doing a special appearance

8


9/44

B) If makes additional motions or raises additional matters, likely to be held to have

made a general appearance and waived jurisdictional objection (ex. in McKnelly v.McKnelly, because husband had signed stipulation to suspend divorce, he waived hisobjection court said, Any action taken by a litigant which recognizes the case asbeing before the court will amount to a general appearance unless such action was

taken solely for the purpose of objecting to jurisdiction.

If you challenge personal jx and lose:A) Some states allow immediate appeal (IL does not allow immediate appeal)B) Federal and other states: require appeal to await final judgmentNOTE: Rule 12 (b) (2), (3), (4), (5) cannot be raised if you fail to raise them earlier

Litigating preliminary injunction: waives personal jurisdiction defense

Limited appearance: limited to value of property seized under attachment jurisdiction

Not amenable to service: no statute giving the state jx; or, against state constitution to havepersonal jx over; if its constitutional, you can still raise it

Why is waiving personal jx not a violation of states rights? Unlike when Pennoyer v. Neffwas decided, now personal jx is considered to be a personal right, rather than a states right

International Shoe v. Hanson: requires to have sufficient minimum contacts with forumstate such that the maintenance of the suit does not offend traditional notions of fair playand substantial justice. changed approach from is it there to is it fair

Black (in dissent): Federal constitution lets states have power to let citizens suecorporations whose agents do business there; shouldnt bring fair play into it.

Denckla: has purposefully availed itself of the benefits and protections of conductingactivities within the forum state

To assert personal jx, have to go through the three filters:1) must comply w/ state law (usually statutory)2) Must comply w/ fed. Constitution3) Must comply w/state constitution

Modern testDue process required sufficient minimum contacts within the state such that themaintenance of the suit does not offend traditional notions of fair play and substantialjustice (NOTE: under Shaffer v. Heitner, owning stock is not sufficient minimum contactfor in rem jurisdiction)

9


10/44

Courts will consider an estimate of the inconveniences which would result to thecorporation from a trial away from s home or principal place of business as relevant

in this connection Courts will also look at whether the businesss behavior was continuous and

systematic

If a corporation exercises the privilege of conducting activities within the state, itenjoys the benefit and protection of the laws of that state

Specific jx: where the cause of action arose

General jx: where s relationship with the forum state is so pervasive as to justify the

state in taking action and suing for anything

Personal jx is a mix of fact and law; gets decided by the court

Agents: connection to be considered an agent doesnt have to be all that much; an

independent contractor is not, but as long as its sufficiently reasonable to expect themessage of service will get back to the parent corporation, its enough

Shaffer v. Heitner revolutionized in rem and quasi in rem basically eliminates inrem jx; direct in rem as well as specific jx survive

Under Delaware statute all shares of stocks of any Delaware corp. are deemed to be inDelaware

Supreme Court says this is not sufficient minimum contacts; says always need to useminimum contacts as within fair play and substantial/natural justice

Test: What is the relationship among the , the forum, and the litigation Is in addition to: quality and nature of acts; whether availed self of

privileges of forum state

Court says the fact the owns property in the state is notirrelevant. The state has an

interest in controlling that property; so, just owning property in a state may, of itself, beenough contact to give jx (if the litigation is about the property). You need fewer contactsfor specific jx than for general jx; would be direct in rem ((ex.) if someone trips on yourland and injures himself in one state, and you live in another state, would probably beenough for jx)

If the lawsuit is about something otherthan property, it can still be attached as securityfor lawsuit, but would not give you a right to a forum in that state

NOTE: Where wouldyou sue a large number of directors of a corporation? Possiblywhere the board meetings were held when the decisions you are suing about were made.

World Wide Volkswagen (first case to weigh the other factors against s intent)

U.S. Supreme Court guidelines:1) Due Process Clause of the Fourteenth Amendment limits the power of a state court to

render a valid personal judgment against a non-resident

10


11/44

2) A judgment rendered in violation of Due Process is void in rendering state and is notentitled to full faith and credit elsewhere

3) Due process requires that the be given adequate notice of the suit4) Due process requires that the be subject to the personal jx of the court

Functions of concept of minimum contacts:1) It protects the against the burdens of litigating in a distant or inconvenient forum

2) It ensures that states, through their courts, do not reach out beyond limits imposed onthem by their status as co-equal sovereigns in a federal system

Burden on : contacts with forum state must be such that maintenance of the suit doesnot offend traditional notions of fair play and substantial justice. (Burden on is

considered in light of other relevant factors)

Relationship between and forum must be such that it is reasonable . . . to require the

corporation to defend the particular suit which is brought there.

****IMPORTANT STUFF****Relevant factors to be balanced:1) burden on

2) States interest in adjudicating the dispute3) Thes interest in obtaining convenient and effective relief

4) The interstate judicial systems interest in obtaining the most efficient resolution ofcontroversies (more than one trial; expenses of discovery)

5) The shared interest of the several states in furthering fundamental substantive socialpolicies

IMPORTANT QUESTION: Is the s conduct and connection with the forum State

such that he should reasonably anticipate being haled into court there? Court says thatmanufacturer is subject to suit where injury occurs, but not necessarily those entities suchas regional and retail distributors

Some states say that while you do have strict liability against dealer and distributor,really, the manufacturer is more at fault; so the dealer and distributor can vouch in themanufacturer to defend the suit.

Court says, The foreseeability that is critical to due process analysis is not the merelikelihood that a product will find its way into the forum State. Rather, it is that thes

conduct and connection with the forum State are such that he should reasonably anticipatebeing haled into court there. Policy: allows potential s to structure their primary

conduct with some minimum assurance as to where that conduct will and will not renderthem liable to suit.

Note: The mere unilateral activity of those who claim some relationship with anonresident cannot satisfy the requirement of contact with the forum State.

Also, financial benefits accruing to the from a collateral relation to the forum State,

e.g., service centers for automobiles, will not support jurisdiction if they do not stem from aconstitutionally cognizable contact with that State.

11


12/44

Vouching in common law in order to reduce multiple lawsuits; requires notificationof lawsuit to be sent to the third party with an offer for the third party to join the litigationand control the presentation of the defense with respect to various issues. If the offer is not

accepted by the third party, the third party nonetheless is bound by the determination of thecourt on those issues.

Asahi

Stream of commerce issue (whether placing product in stream of commerce constitutessufficient minimum contacts): Ct. says test is whether purposefully establishedminimum contacts in the forum state; must have committed some act b which the

purposefully availed itself of the privilege of conducting activities within the forum State,thus invoking the benefits and protections of its laws. . . . Jx is proper where the contacts

proximally result from actions by the

himselfthat create a substantial connection withthe forum State.

Judges split in opinions: part say putting in stream of commerce is not enough, must showsome intent to do business in the forum state; others say stream of commerce meetsminimum requirements; Stephens says stream of commerce with hazardous product, highvolume, high value, then stream of commerce is enough

Important part: most judges look at the stream of commerce issue by saying purposefulavailment requires determination of volume, value, and hazardous character of thecomponents; probably a regular course of dealing that results in deliveries of over 100,000

units annually over a period of several years would constitute purposeful availment eventhough the item delivered to the forum state was a standard product marketed throughoutthe world.

Also: the forum State does not exceed its powers under the Due Process Clause if it assertspersonal jurisdiction over a corporation that delivers its products into the stream ofcommerce with the expectation that they will be purchased by consumers in the forumstate.

Minimum contacts and traditional notions of fair play and substantial justice get

divided

In Asahi, weigh # of contacts against inconvenience to 1) Does have important reason to hear this case in the forum state

2) Does forum State have strong interest in having case resolved there? (Note: once the dropped out in Asahi, there were no California citizens to protect)

3) What is the interstate judicial systems interest in having case resolved there in interestsof efficiency?

12


13/44

4) What is the benefit to the promotion of desirable social policy to have the case heardthere (shared interest in several States)?

NOTE: Brennan likes to find personal jx; White does not

Test for minimum contacts enough (using hazardous materials, etc. factors of Stephens)Subcategory: did purposefully avail itself of benefits and privileges of forum State

Burger King v. Ruzewicz

Prior negotiations and contemplated future consequences, along with terms of the K andthe parties actual course of dealing, must be evaluated in determining whether the purposefully established minimum contact within the forum State

The primary concern is that predictability in the legal system that allows potential sto structure their primary conduct with some minimum assurance as to where that conduct

will and will not render them liable to suit

Forum selection clauses: court has become accepting of themFederal government is the sovereign here s relationship to the sovereign as

weighed against other interests

Important: Rule 4 (k) of Fed. Rules territorial jurisdiction says you can only assert jxover in federal court in a given state if you could assert State jx over that person

Exceptions: interpleader, anti-trust, third-party claims

Court says its not the fact that there is a K, in and of itself not enough for minimum

contacts; says its the fact the K is for a 20-year mortgageIf a Californian gets a New Jersey loan, is that personal jx? Cant really say theresnot.

Depends if banker assigned your loan out of state, then no act of yours;probably not Wouldnt have level ofconstant pervasive interaction of franchise situation But, through reasonable expectation, theres some potential for personal jx

RAR v. Turner

Only the dealings relevant to the disputed K have any bearing; prior contacts not involvingthe disputed K have no substantive bearing, so no jx

Yates v. MuirMalpractice by omission argument is that the tortious act occurs where the injury occurs;court says thats true in physical injury, but not from merely economic consequences

13


14/44

Ores and Sproull v. Vedder Price v. GoldenContacts included phone calls, letters, conference callsNOTE: Illinois very expansive in its reading of personal jx

General jx:Situation where has so much contact with forum State that its deemed to subject

them to jx for any cause of action.A) domicile of private individualB) place of incorporationC) principle place of businessD) one test is company doing business in the State?At least for U.S. s, there will always be a State in which suit may be brought on all

claims. For example: corporations, in state of corporation, state which is a principal placeof business; state of domicile; and, extends a little further in some instances.

Kennerson v. LindbladeWhen a , by the nature of the functions and services it performs, may be fairly

considered to be tacitly soliciting business in another state, it must expect it may be haledinto court in that State.

NOTE: in true general jx., doesnt matter where decedent is from

Burnham v. Superior Court: USSC 1990 if you come voluntarily and knowingly into aState, youre subject to its jx

Due process: Illinois different

Rollins: no other state except Illinois has interpreted its due process clause differently thanthe federal clause. Two main findings:1) Fiduciary shield doctrine applies to Illinois2) Illinois state constitution doesnt follow same interpretation of due process that fed

doesRollins test: whether it is fair, just and reasonable to exercise personal jx

Fiduciary shield doctrine in Illinois: no personal jx when a party comes into aforum state to further the ends of his employer

Subsequent cases have been all over the map, in Illinois and federally; first districtonly applies it to para-military organizations such as police, etc.; other districts allow iteven when employee is going directly against wishes of employer in tortious acts underthe K

In other states: fiduciary shield doctrine has been recognized in other states,but not uniformly

Some: only applies to K cases, cant get personal jx over agent Others: apply it to torts only when did not enter the forum state

NOTE: can always go after the employer; fiduciary shield only pertains to employeesAlso note: N.Y., which created fiduciary shield, has since rejected it

14


15/44

Significant three filters: court says under Illinois interpretation of due processclause, it is not fair, just and reasonable to subject an employee to personal jx forcarrying out employers instructions.

Forum selection clauses

Carnival Cruise: raises the question of whether an actual assent to personal jx is valid typically courts have disfavored forum selection clauses, thrown out as invalid, so then Kswere written with choice of law clauses

Where negotiated as a part of the K, will be honored

Policy reasons:

1) cruise line has special interest in limiting fora

2) dispels confusion about fora, sparing expense of pre-trial motions

3) tickets cost less because cruise line doesnt have to litigate everywhere

Forum selection clauses can still be challenged in K law As a federal matter, is within due process to enforce forum selection

True forum selection clause is based on consent

Can consent to law of a state but not necessarily to jx

Most states have a body of law called Conflicts to deal with when to useone body of law over another

When a company has a representative in a state, you can do in-hand, in-state service,therefore that state has jx (where K appoints that person as agent for service of process)

Arbitration clause: takes disputes out of judicial system (rules of evidence, etc. dontapply)

Cognovit: Someone (like a holder of a note) can come in and confess judgment against theholder of the note can go in and admit is liable

You sign a K which says you, as debtor, waive all your rights to contest ajudgment against you

Sometimes can be a bargained-for provision between businesses (there isusually a triggering mechanism cuts off all rights of appeal may have dont even have to give notice tomaker of note (often unenforceable in consumer Ks, but sometimes enforceable asbetween businesses)

Proper notice: under Mullane, use the three filters for notice (Mullane interprets dueprocess clause of 14th amendment)

1) Statutory (did comply with statute)

2) State constitutional provision (potentially) (Rollins)

15


16/44

3) Federal constitutional limits on notice

Reasonable notice under constitutional requirements: Due Process requires noticereasonably calculated, under all the circumstances, to apprise interested parties of thependency of the action and afford them an opportunity to present their objections

TAKE INTO ACCOUNT PRACTICALITY AND CIRCUMSTANCES

New York banking lawsa) combining funds saves administrative costsb) accounting trustee has to do an accounting every three years if accepted by

court, it cuts off any claims against trustee by beneficiaries for period accountedfor

c) requires only publication notice

Court: says mail is okay for known recipients, because they are reasonably certain to get it;publication okay for contingent or unknown beneficiaries, because it would be impractical

to approach it any other way

Tulsa: (in IL, K claims have a 10-yr. SOL; most states similar. States have statutes to cutoff claims, provide if a will was in probate, announcement of probate and published inpaper, debtors had only two months to press claims.) Court said since court is intimatelyinvolved throughout the process of appointing executor, etc., and since court isrepresentative of the state, the state is involved sufficiently to bring it under Due Process.

Therefore, publication notice not sufficient, needs to be the service you would use ifyou really wanted to serve someone with notice mail okay (puts the burden on the

State, who can then put it on someone else)NOTE: after this case, all states modified their probate codes.

How service is effected: comes under statute filterFederal Rule 4

2) summons in specified form3) i.e. summons form with seal, and time limit4) service with complaint (by whom made)

by any person eighteen or older who is not a party (attorney can serve;wife or husband of can serve)

court may direct service by U.S. Marshall, Deputy U.S. Marshall, etc. at

request of

5) waiver of service: have 30 days to respond to a request for waiver of service; ifyou dont accept waiver of service, pays cost of process server even if later

prevails ( asking for waiver of service might make you lose under SOL) Illinois rule cannot be used yet because the proper form has yet to beapproved and adopted

16


17/44

6) service upon whom: abode service can leave it with someone at their home whois of reasonable age and discretion (in IL, thirteen years old and older see IL 2-203 have to inform person of contents, AND have to mail a letter)

housekeepers usually count

can appoint (actual or constructive) agent for service

IL 2-202 general rule, sheriff or coroner will serve exceptcounties with less than one million population, which may employ acivilian or people registered as private detectives

Proof of service: Rule 4 (L) certificate or affidavit of service filed with the court

LONG-ARM STATUTES

Under the three filters, the third filter can be either a statute or a rule

Ill. 2-209 Illinois Long-arm Statute states have been fairly aggressive

about extending long-arm jx as far as the constitution will let it go Under Crocker, court said cause of action must arise from a transaction inMassachusetts. Here, the cause did not arise from the transaction itself, so as amatter of statutory law, no personal jx (note: since this case, Mass. reinterpretedthe long-arm statute to make it reach the limits allowed by the constitution) federal court had to use Mass. law under Rule 4 (k)

Under constitution, mere solicitation usually is not enough for personal jx

VENUE (28 USC 1391)

Venue is entirely statutory, except in Illinois, which interpreted the constitution to require it

TEST VENUE TWO WAYS:1) test through the statute2) test through forum non conveniens

Deals with where within the forum state a case can be heard. Statute has loosened up.

Corporations: for venue purposes, a corporate is said to reside wherever it is subject to

personal jx.

Personal jx = state boundaries

State statutes on venue:

17


18/44

2-101 venue proper in county of residence of any

where transaction or some part thereof occurred, or where cause of actionarose (ex., radio contact during ambulance ride) if all s are non-residents of state, action can be brought anywhere in state

if there are several s in different counties, you can have your choice

2-102 businesses corporation any county where it has a registered office, any other office, or where it is

doing business

partnership where either partner is

2-103 real estate county where the real estate is located

2-103(e) insurance company : where any is located

2-104 if you get venue wrong: does not void judgment to bring in wrong county if the issue is raised, the case is not dismissed, it is transferred

must bring the issue up before the answer or before you appear

Staumbaugh what does doing business mean?Although doing business is interpreted pretty loosely in Ill. for personal jx, the

courts are stricter for venue purposes. For venue, the must do usual and customary

business within the county in which venue is sought.

Williams an Illinois case, the only case in the nation to decide venue under constitutional

issue of Due Process; said ifs are indigent, violates due process to set venue too far away

Forum non conveniens is discretionary if a court has jx and venue, can still choose tonot hear the case because of other factors which would make it more convenient elsewhere

used to be a means of dismissing case

sometimes conditional (e.g., on waiving objections based on SOL)

In response to Gilbert, enacted 1404, which says complaint doesnt have to be refiled, canbe transferred to another district

used when theres more than one appropriate venue

where one place is a more convenient forum if you canttransfer have to dismiss to international forum (in federal court)

in federal court, forum non conveniens always leads to dismissal

To move a case in federal court: 1404, 1406, 1631 let you do that

State court: no statutory mechanism for transferring elsewhere based on forum nonconveniens

18


19/44

Torres v. Walsch Supreme Court said a trial court has an inherent power to transfer acase to another county within a state, or dismiss so it can be brought in another state orcountry; both transfer and dismiss come under forum non conveniens

General principles:

2) thes choice of forum should generally be undisturbedf)the has the burden of proofg) the was the one injuredh) there are already other means to protect

i) protect interests of forum statej)reduces litigation gotta choose to favor one or the other, or the constantarguments over venue would eat up court time

GILBERT GUIDELINES: (use these to decide if case should be transferred to anothercounty)Factors pertaining to the private interests of the litigants (important):

5) relative ease of access to sources of proof6) availability of compulsory service for attendance of unwilling, and the cost of

obtaining attendance of willing, witnesses7) possibility of view of premises, if view would be appropriate to the action8) all other practical problems that make trial of a case easy, expeditious and

expensiveFactors pertaining to the public interests:

6) administrative difficulties flowing from court congestion7) the local interest in having localized controversies decided at home8) the interest in having the trial of a diversity case in a forum that is at home with the

law that must govern the action

9) the avoidance of unnecessary problems in conflict of laws, or in the application offoreign law10) the unfairness of burdening citizens in an unrelated forum with jury duty

Do NOT consider:3) fees it will cost to transfer4) which party the law favors (unless moving it would squelch the suit)

Has to be factors substantially more in favor of moving, or courts will leave it where it is;Ill. state courts are less likely to transfer than fed. courts are

HAVE TO FILE A REMOVAL NOTICE BEFORE FIGHTING A JX ISSUE

Change in substantive law by changing venue not a consideration unless alternativeforum is clearly inadequate or unsubstantial

Federal case transfers:1404 for transfer even though venue was proper1406 where venue was improper where filed transfer it

19


20/44

1407 multi-district litigation provision1631 when filed in a court without jx, transfer it to a court with jx(which section you bring it under makes a difference for conflicts law)1406 do not use transferors law (because venue wasnt proper there)1407 lets you consolidate, for discovery and pre-trial proceedings, a series of cases on the

same basic issues (ex., tobacco cases, plan crashes)

Forum non conveniens transfers to another county, or even perhaps into state court

Forum non conveniens in Illinois:Rule 187 motions on grounds of forum non conveniens If filed within six months, must waive objection to service

If SOL has fun out, must waive that defense

Supreme Ct. Rule 306 (a)(4) can appeal during trial from an order of the circuitcourt granting or denying a motion for a transfer of venue based on the assertion that

the defendant is not a resident of the county in which the action was commenced, andno other legitimate basis for venue in that county has been offered by the

Under Boner, court says factors have to weigh substantially in favor of before a judgewill waives choice ( courts have leaned toward finding St. Claire County okay; now,

supreme court has begun giving summary orders against letting people forum shop their

way into the 5th district [St. Claire County/Belleville])7) attorney convenience not particularly relevant8) jury bias is one of the factors to be considered in relative advantages and

obstacles to a fair trial9) trial judge says he can move things along, so burden on courts no problem

10) Peabody has significant presence in 5

th

district that residents of that forum haveinterest in adjudicating the case11) Dont consider inconvenience of if there are strong reasons for to choose that

forum12) thes choice is entitled to less deference when is not a resident of the chosen

forum

Fed. Rule 12(b)(2) motion to dismiss for lack of personal jxFed. Rule 12(b)(3) motion to dismiss for improper venue28 USC 1404: changes of venue

First,

moves for dismissal; then if they dont get that, they try to get transferred under1404; for convenience of parties and witnesses; in the interests of justice

CAVEATS:(4) If youre going to transfer, the court to which you are transferring must have personal

jx, subject matter jx, AND proper venue the three rings(5) Law of transferor court applies in the new court (court in state where its originally

filed)

20


21/44

(6) Have to raise it before the trial on the merits or its waived

Where there is any is joined in good faith: under 2-101,s have to be joined in goodfaith

21


22/44

SUBJECT MATTER JURISDICTION

Subject matter jx is a different kind of animal than personal jx; personal jx is geographicand started out to protect states rights, then developed to protect individual rights; venue isalso geographic; smjx is NOT geographic, if you have subject matter jx in federal court in

Delaware, you also have smjx in Hawaii; the question is, does this court have the power tohear this kind of case?In the federal system, consequences of both statute and US constitution you cant

have greater than the amount allowed by the constitution, but the legislature can and hasdeclined to allow full amount of power granted by the constitution; congress has power tolimit the lower courts.

1331 doesnt say federal courts have exclusive jx; usually federal and state courts haveconcurrent jx unless statute says its exclusive to one or the other (for example, 1338makes patents, plant variety protection and copyrights all exclusively in federal jx)

Mostly concerned with 1331, 1332, 1337; 1334 is redundant with 1331

Subject matter jx is a way of protecting the balance of power between federal and statecourts much more fundamental, is about structure of government; courts are required todismiss if no smjx

Well-pleaded complaint rule: if complaint can be made, without extraneous matterswithin federal jx, then no federal smjx; must show it arises under federal laws/constitution

Rule 8(a): to file a federal claim, have to file a short claim in the complaint why there is jx

Louisville and Nashville RR v. Mottley: its not enough to qualify a case for federal jx thatan expected defense may be invalid due to some provision of the US Constitution; in orderto enter the federal jx thes original cause of action must arise under the Constitution

Declaratory judgment and well-pleaded complaint: declaratory judgment is a statement bythe court about what the rights of the parties are usually requested by ; information

from affirmative defense is used.

How do you raise subject jx? Can raise it at any time can raise it for the first time onappeal, even

There are some circumstances where you can collaterally attack subjectmatter jx, but those circumstances are RARE

a) If the first action/judgment is in federal court, no collateral attack; itis always incumbent on federal court, because federal courts havelimited jx, to see if it has subject matter jx, so it is presumed ctalready considered the matter and determined it had smjx, then FullFaith and Credit clause comes into play; coulduse Rule 12 to attackpjx and smjx at same time

22


23/44

b) if first time in state court can be subject to collateral attack (statecourts are not limited in smjx, so there is no presumption

if case is on federal issue (ex. patents), the decision is void anddoes not get full faith and credit

Federal diversity jx: 1332:4) amount in controversy requirement (= or > $75,000)5) cant have a from the same state as any AT THE TIME THE CLAIM IS

FILED; doesnt apply to third party s because they are brought in after filing

has burden of pleading diversity domicile means you live there at time of filing and have no definiteintention to move (minority view, intend to remain there permanently; majorityview, plan to remain indefinitely)

citizen under 1332 means U.S. citizenship, or permanent resident alienstatus, plus domicile

permanent resident aliens are considered to be from the state in which

they currently reside6) corporations under 1332 (c) different from citizenship for venue

d) limited partners considered as well as general partners; in limited partnerships,a citizen of where an partner is a citizen, even a corporate partner

e) associations (ex., labor union, unincorporated); citizenship is that of every oneof its members

f) place of incorporation and principle place of business circuits vary in testusedv) where is nerve center/CEO/administrative offices?vi) Where is everyday business activityvii) Whats the center of activity AND the nerve center

viii) Courts increasingly ask where bulk of activity takes place

Domestic relation exception: There is usually a domestic relations exception fordiversity; federal courts generally wont enter into divorce, alimony, custody; but, wherethere are ordinary tort issues related to domestic relations, then there is jx

Amount in controversy: if pleading is for amount in excess of $75,000, and is in goodfaith, then amount in controversy will be met even if award turns out to be less

Equitable relief: How do you measure? Look at one of four things:4) value of injunction to

5) cost to of complying6) cost or value to party invoking federal jx4)

The fact that the Rules allow joinder does not expand smjx; joining claims does NOTaggregate the amount in controversy. If one of the parties has enough, and the other onedoesnt, under 1332 (m) and 1367 (b) may give supplemental jx if other claims arise fromthe same claim

23


24/44

Exception: except bys against s made parties under Rules 14, 19 (necessary

parties), 20 (joinder of parties), or 24 (intervention)

NOTE: s can be joined under Rule 20 and still okay

Determining smjx:4) ask if smjx under 1331 (federal question)5) if no, ask if smjx under 1332 (diversity w/ amount in controversy) no aggregation

allowed among more than one, but one CAN aggregate all of his own different

claims against one (for example, if you have a K action and a tort action, you can addall the claims to meet the amount in controversy)

6) if no, ask if smjx under 1367(b) (supplemental jx) ONLY for diversitye) first does it meet 1367 (a) (i.e., is it NECESSARY ALWAYS ask this first)f) if yes, skip to 1367 (c)g) if no, go to b (diversity)h) then go to c

NOTE: state battery action is a federal question if somebody gets beat up by police officerand his friends under 1983; patent disputes are also federal question

If you have enough $ against 1, but not 2, you CANT bring action against 2 under

either 1332 or 1367 (which was enacted in 1990)

Class actions in diversity, USSC has said each and every member of the class must meetamount in controversy, although some courts say 1367 changed that

BUT: single claim by more than one person (ex. with joint interest, like partnership) is notthe same as aggregation of the claim

Supplemental jx: used to be two kinds3) ancillary if has compulsory cross claim w/o sufficient $, then ancillary jx; or, if

claims against third party for more than minimum $4) pendent federal question issue AND state law issue

UMW v. GibbsIf state claim and federal claim are parallel, both can be heard in federal court; if federalclaim drops out, the court can still hear the state issue or, at its discretion, may drop thestate claim

Considerations:

6) Was state issue the real issue7) When federal claims were dismissed (before trial, factors weigh in favor ofdismissal; if dismissed on directed verdict, can probably go forward)

8) Pre-emption: if federal law has so filled the field of law theres not much room forstate law

9) Jury confusion10) ?

24


25/44

Reflected in 1367 (c); up to courts discretion 1367 was enacted to allow a to sue

several s in federal court on state issues (including third party s)

As a matter of case law, Gibbs says sufficient federal claim can anchor state claim withpendent jx; is then up to court to decide whether to grant pendent jx

If theres exclusive jx on federal claim, courts might not dismiss

Concurrent jx: when federal court and state court both have jx

REMOVAL mechanism by which defendant can choose forum

1441: First have to ask if federal court would have had original jx if based on federal question, can remove

if based on diversity, can remove ONLY if no was citizen of forum state

How to remove: files Notice of Removal; not askingcourt to remove, but announcingthe removal; staysin federal court form the time its filed, unless a remand is filed or court removes it suasponte

File notice of removal in federal court, give notice to state court you have removed it; isremoved when you file notice in federal court

1441(c) can basically never come into play

In Illinois, 5/2-604 state pleading doesnt let you state the amount of controversy; whenyou remove, you say On information and belief, amount is more then $75,000; can sayno, its less, but courts will hold them to it.

8(b) Rule 11 sanctions

1447 (d) even if federal court is wrong and remands it mistakenly, there is no review orappeal its final unless its a Civil Rights action (must state youre basing it on 1441 and1443)

City of Chicago v. International College of Surgeons says you can remove a stateadministrative appeal which was filed as an appeal in state trial court

ERIE DOCTRINE says you apply the substantive law of the state in which the federalcourt hears the case

25


26/44

1) Outcome determinative test (from Guaranty Trust): Does it significantly affect theresult of a litigation for a federal court to disregard a law of a state that would becontrolling in an action upon the same claim by the same parties in a state court? begsthe question, just what is outcome determinative, anyway? (NOTE: this was the sort ofintermediate step law has shifted)

2) Ragan v. Merchants : Massachusetts law said SOL doesnt stop running until youachieve service of process; federal rule says SOL clock stops when you file thecomplaint; the supreme court said go by the state law on SOL

3) Byrd v. Blue Ridge supersedes Guaranty Trust BALANCING TEST general ruleis federal courts sitting in diversity should apply state law; if the rule is intricatelybound with state laws rights and obligations and regs, and will affect primary conductof persons in everyday, non-litigious life, then you have to use state law; otherwise, if itisnt intricately bound with everyday life, ask if application of rule will firmly dictatethe result (rather than more likely than not)

If not, balance state and federal interests, but without giving more weight tostate interests

If yes, balance state and federal interests but give more weight to stateinterests

4) Hanna v. Plummer takes out of Byrd analysis any case dealing with Federal Rule;difference in state and federal law on service of process (if SOL hadbeen issue,probably wold have been substantive enough to have to use state law) court sayswhen a Federal Rule is involved, have to look at Rules Enabling Act 28 USC 2072 supreme court can promulgate rules, but such rules shall not abridge, enlarge, ormodify any substantial right. TEST IN HANNA: does a conflicting Federal Ruleabridge, enlarge, or modify any substantive rights?

Now, test is:

1) Is there a conflict between state and federal practice?a) if not, no Erie problem, can apply bothb) if yes, ask is there a federal statute or rule of procedure on point?

2) If the issue is a federal statute, ask:a) is the statute constitutional?

(i) if yes, then apply the federal statute (under supremacy clause)(ii) if no, then ignore the statute and go to the Byrd balancing test

3) If its procedure, ask: is it validly enacted?a) does it violate Rules Enabling Act by enlarging, abridging or modifying substantive

rights?(i) if yes, then ignore procedure and go to Byrd balancing test

(ii) if no, then ask is it constitutional?(a) if yes, then apply the federal procedure under supremacy clause(b) if no, then ignore the procedure and go to Byrd balancing test

4) If its case law, go straight to Byrd balancing test

No rule has ever been found invalid under Rules Enabling Act, which itself has never beenfound unconstitutional; however, some federal statutes have been found unconstitutional;also be aware federal interest in administration of own court will weigh pretty heavily

26


27/44

Preventing vertical forum shopping/preventing inequitable administration of the laws comes into Byrd balancing test (want to avoid forum shopping between federal and statecourts)1) look at state interests involved (how firmly committed mandated or discretionary?)

In ILLINOIS, certification rule on Erie is Rule 20; says Illinois Supreme Court may (ormay choose not to) certify a question from federal court; cant certify from trial court or 8 th

circuit

PLEADING: How does history of pleadings affect us?

Categories still affect remedies, SOLs, law v. equity = different remedies, or equitablerelief where there is no adequate remedy at law; more discretion in equity, balancing ofhardships; no right to jury if historically the cause of the action was equity a lot ofjoinder rules and discovery rules re derived from chancery/equity; also depositions, all

of trust law, mortgage law, derived from equity practice In federal court, with a public entity, what you plead and what you provehave to be the same thing

You have to say enough to put your case under the body of law youreinvoking

Equitable remedies injunctive relief, specific performance, constructive trust

Legal remedies replevin, eviction

Purposes of pleading:1) Give notice of the nature of the claim (now this is main thing)2) State relevant facts (a little bit this one now)

3) Narrow the issues4) Serve as guides for discovery and trial5) To expose insubstantial claims6) Separate issues into factual and legal issues

In Illinois, 1-5 now applicable counts on pleadings to refine the issues for discovery andfor trial

Illinois 2-603 Illinois says use ultimate facts (for example, exactly how was negligent was drunk, didnt maintain brakes, etc.), not evidentiary facts (too much detail; forexample, exactly how fast a speeder was driving) or conclusions of law (too little detail; for

example, he was breaking the law when he hit the other car)

In modern pleading, can plead in the alternative (e.g., I didnt do it, and besides, I had agood reason when I did it) historically couldnt, could only delay things with dilatorypleas (challenge to jx), or traverse, or plea confession and avoidance

27


28/44

General Rule: federal courts notice pleading dont have to say much, just give noticeof what youre complaining about; stating the facts of the case, state yes, ct discovery;speedy disposition of the claims, state complaint, federal court discoveryGreat difference in how you plead in state court, have to give facts (fact pleading)Knox College: separate claims should be put in separate counts; Illinois fact pleading

insists that allegations must be well founded in fact and law, without the benefit ofdiscovery; cannot plead general averments, MUST file ultimate facts

Federal system lets you plead on the alternative, Illinois does not alternatives leave an

awful lot to defend against final pre-trial order supersedes the complaint

Rule 11 amended in 1983 from to the best of pleaders knowledge (virtually nosanctions); amended to after reasonable inquiry and if violated, courtshallimposesanctions then everybody started filing Rule 11 and got a lot of satellite litigation. NOWRule 11 has safe harbor provisions, with sanctions other than attorney fees (safe harbor =no rule 11 sanction for filing rule 11) also, now reasonable inquiry under these

circumstances. Can say, On information and belief, upon further discovery it will be shown that . . . .

If you find out facts are different from what you thought, you must not argue theoriginal fact pattern

Safe harbor a Rule 11 has a 21-day waiting period after drafting it and serving otherparty, during which other party has a chance to correct their mistake

A court may, on its own initiative, issue an order that a pleading violate Rule 11 (b),and the party must attend a hearing to show cause if burden is not met, court canimpose sanctions without the 21-day waiting period

Rule 11 (c)(2) tells what the sanctions are now, theres a lot more discretion in thecourt deterrence goal rather than compensation goal (may be non-monetary, take a

law class in continuing ed. or pay the court, or award other side attorney fees) Can have inadequate factual investigation, or inadequate legal argument; etc.

In federal courts: general acceptance of federal pleadingLimits:1) Rule 11 requires objectively reasonable investigation

Where issue is factual, sanctions can go against attorney as well as client

Where time constraints are tight, attorney cant do as much investigation,and thats okay

Where issue is legal insufficiency, only attorney is to blame (and his law

firm); and co-counsel law firm if theyre involved in drafting the complaint Safe harbor 21 days after Rule 11 motion is filed to withdraw thecomplaint; by that time, the other party is out the expense of filing a motion

Rule 11 is for legal insufficiency

Entire onus is against attorney

Court says you dont necessarily pay attorney fees

28


29/44

Determine amount by the lodestar method reasonable amounttimes a reasonable number of hours; a court wont award more thanthe lodestar amount, but may award less if thats sufficient deterrenteffect

Court has inherent power to impose fines even without Rule 11

Look at Illinois rule 137 within courts discretion whether or not to enforce Rule 137sanctions; cant sanction law firm; no safe harbor provision; party can be sanctioned foreven legal pleading

In Illinois, there is concurrent jx between court and legislature on procedure; if theres adiscrepancy, court wins

Gerbode a U.S. Dist. Ct. case decided after Rule 11 amendments the court has theauthority to sanction a co-counsel law firm, as well as the primary offending firm, even

though co-counsel did not sign the offending pleading; however, in order to do so, therecord must show that firms culpability or part in causing a violation

Federal Rule 9: fraud has to be pled with particularity1) clear and convincing evidence burden of proof2) lots of bad press even if claim is groundless3) if mistake, need to give notice to other party of what mistake was made4) usually comes up in K; contrary to usual damages in K actions

Civil Rights pleadings: courts are a little more exacting; argument is that individuals whoare sued have qualified immunity if violators were unaware of the law; some courts saythat means not only immunity from money damages, but also immunity from standing trial.

Supreme court said no in Leatherman; said civil rights as regards municipalities arenot covered by 9(b), but left question open about individual officers

Schultea U.S. case 5th circuit said Rule 8 applies police chief demoted forinvestigating a member of city council; alleged violations of Due Process and infringementon first amendment. Rule 7 says that the court may order a reply to an answer of qualifiedimmunity, or a third party reply at pleading stage, claim will have to say why qualified immunity does not apply (real

problem for because havent gotten to discovery yet)

Bottom line: greater requirements in pleadings for fraud and mistake, but not for CivilRights

Allocating the elements: who should bear the burden of pleading? Cause of action v.affirmative defense generally burdens of pleading and proof run together, but notalways

Generally only applies to close cases

29


30/44

Legislatures make decisions about who bears the burden

Relevant in directed verdicts as well as in pleadings

Coleman:

Motions 2-619 and 2-615

Burdens of pleading, proving and persuasion makes the difference in who wins a closecase For example, in states with contributory negligence, it was an affirmative defense

won if evenly balanced In Illinois, it was up to to prove they were not contributorily negligent

won the case if evenly balanced

Why allocate in a certain way?

Policy reasons: Who has better access to the knowledge May decide that in a close case you want (or) to win Hard to prove a negative, so put burden on someone who can provesomething didexist; helps define the issue ( can choose which ways was

negligent; very difficult for to prove all the ways that was notnegligent Probability (what is most likely to be true)

Gomez v. Toledo: (suit over allegedly wrongful termination in violation of Civil Rightsstatute) Supreme court: not going to require subjective good faith; just whether could

have reasonably had basis for believing he was acting in a manner authorized by the law in

those particular circumstancesCourt allocated burden of pleading to in bad faith issue because:1) statute2) who has access to information about the issue (which is only the person who has

intent)

Pre-answer motion: motion to dismiss

Rule 12 (b): motion to dismiss filed before answer is filed The files complaint; does notfile answer; files motion instead of an answer

If 12(b) motion is denied, then has to answer within 10 days of denial If 12(b) motion is granted, the case is dismissed, or, in 12(b) or 12(c), gets leave to

file an amended complaint

Post-answer judgment: motion for judgment on the pleadings

Rule 12 (c): motion for judgment on the pleadings; filed after submits answer If 12(b) motion is granted, the case is dismissed, or, in 12(b) or 12(c), gets leave to

file an amended complaint

Filing an answer: federal court

30


31/44

Federal court: 20 days after summons or complaint to file answer or 12(b) motion OR, 12 (e): motion for more definite statement (rarely granted, because in notice

pleading you dont have to give all that definite a statement

OR, 12(f): motion to strike material which is scandalous or legally insufficient If 12(b) motion is denied, then has to answer within 10 days of denial

If 12(b) motion is granted, the case is dismissed, or, in 12(b) or 12(c), gets leave tofile an amended complaint

In federal court, only get one pre-answer motion need to include everything, or will waive defense of personal jx; improper venue,

insufficiency of process

NOT WAIVED subject matter jx, failure to state a claim, failure to join anindispensable party, etc.

Illinois is very strict about proper labeling of motions

request for bill of particulars (under 735 ILCS 5/2-607) = motion for definite

statement replaces complaint 2-615 asks court to rule only from face of the pleadings

can be raised by, or can raise in challenging complaint 30 days or more

generally statements in complaint are taken as true

does not consider affidavits or other evidentiary/supporting materials says the allegations are insufficient to state a claim or cause of action

for example, failure to state an essential element of the claim

must specify defects and ask for appropriate relief

21 days after reply is filedThere are six bases for attacking pleadings under 2-615:(1) That the pleading be made more definite and certain

(2) That designated immaterial matter be stricken(3) That necessary parties be added or misjoined parties be dismissed(4) That the pleading fails to allege essential elements in the cause of action(5) That the pleadings fail to state a claim upon which relief may be granted(6) That the pleadings entitle the moving party to judgment

Remedy: dismissal or leave to amend

2-619 involuntary dismissal based on certain fatal flaws (ex., filing patentcase in state court; subject matter jx; incapacity; another similar action pending;cause of action barred by prior judgment; SOL has run [would be 12(b)(6) in statecourt];claim released, satisfied or discharged; SOF; K is invoked due to legal

disability) NOTE: no equivalent in federal court can only be raised by someone in the position of a facts in complaint are taken as true as long as they are necessary to statea claim for the cause of action, but notnecessary to take as true any extraneousallegations theres an affirmative matter which prevents the case from going further

lets you put in affidavits in support of claims; can file them, but donthave to

31


32/44

if no demand for jury trial, judge can make credibility decisionsRemedy: dismissal; court may decide evidentiary matters if no jury requested

Surety 2-619 case admits all essential elements of the claim, but allegations of time areextraneous and need not be taken as true

2-1005 -- motion for summary judgment if the defect challenged lies in theunderlying facts rather than in the pleadings used when there are not any materialissues of facts to be tried

says cant factually support the claim (make this point by counteringfactual allegations made in the claim) facts contained in an affidavit in support of a motion for summaryjudgment which are not contradicted by counteraffidavit must be taken as truefor purposes of the motion

failure of the party opposing the motion to file counteraffidavits does notmean that the motion is to automatically granted; just means that all facts inmovants affidavits must be accepted as true for the purposes of the motion

court cannot decide credibility; question is, is there any material issue offact doesnt have to be right after pleading, usually is after discovery

Can combine 2-1005 with 2-615 or 2-619, but you have to label them in thetheory youre going under Rule 181 supposed to be filed within 30 days

Leave to amend is same proceeding so S.O.L. clock stays stopped

ANSWERS

Responses:1) pre-answer motion (fed. Rule 12, Ill. 2-615 or 2-619); but if denied or no grounds

for these, then2) file answer fed court 20 days, Illinois 28 days (or specified date, if date certain)

Zielinski raises question of how you answer (fork lift named wrong company)

Federal Rule 8: makes you meet the substance of the allegation Federal Rule 11: you have to do a reasonable investigation

Did not phrase denial with sufficient particularity

Probably court was influenced because both s are represented by sameinsurance co.

Court applies estoppel theory Would have been better if had set all allegations down in separate counts;want only one basic allegation per paragraph

Layman v. Southwestern Bell: court says it is the obligation of a in an action for trespass

to affirmatively plead and prove matters in justification; i.e., easement is an affirmative

32


33/44

defense and must be raised in pleadings (in federal court, under Rule 7, only have to replyif labeled as counterclaim)

Rule 8(c) affirmative defense

Why didnt they just claim they have an easement?

In many jxs, pleading it means assuming the burden of proof/persuasion

NOT in all jxs

Interrogatories: is not a pleading, its a discovery device MAKES A DIFFERENCE

Cant use pleadings in subsequent lawsuit

Cant explain pleadings later on

Interrogatories are under oath, can support summary judgment, can be exception tohearsay rule

Problem courts try to avoid is surprise in the defense

Ill 2-613(d) facts constituting affirmative defense . . . (which) would be likely to take the

opposite party by surprise, must be plainly set forth in answer or reply do NOT take onburden of persuasion by doing so

In Illinois, separate provision 2-602 if affirmative defense of easement is a new matter,response must be filed by; doesnt matter whether affirmative defense or a complaint

Difference between affirmative defense and counterclaim is difference is differencebetween shield and sword

Amendments to pleadings : Rule 15

Can be done one time before responsive pleading without leave of court If no responsive pleading is permitted (ex. answer) you have 20 days to amend without

leave of court

After that you have to get courts permission, OR stipulation from adverse party theydont object

Courts permission freely given as justice so requires

Illinois: 2-616 of Civil Practice Act in Illinois and relation back question (favorite topic ofbar examiners)

Aquaslide: seeking to amend its answer because they found out it was not their slide,after initially admitting it was theirs

To use Rule 15, it takes:1) leave of the court2) as justice requires (if reasonable mistake was made, and it was not unduly

prejudicial to opposing party)Possibly Aquaslide should have been on notice, because of history of counterfeits had developed system of spotting counterfeits

33


34/44

Aquaslide (the ) wanted separate trial on whether it was their slide; Rule 42(b) allows this1) discrete issue, separate discovery2) fear jury would be prejudiced bys injuries

Burden is on party opposing the amendment to show prejudice

RELATION BACK: Rule 15(c) (especially 15(c)(2)) ONLY AN ISSUE WHEN SOLHAS RUN

1) when theory of recovery changes against same 2) when you want to change s

Generally, in federal court all a complaint has to do is put on notice (because of noticepleading)

In Illinois, pleading is designed to tell what he has to defend against (fact pleading)

Moore:First complaint failure of surgeon to get informed consent (i.e., battery)Second complaint negligent surgery and post-op care

SOL ran out between two complaints; court said(1) bases for complaints happened at different times(2) was about two separate kinds of conduct(3) separate evidence

In a case like this, the would argue the occurrence was seeking medical care for the

artery;

would argue occurrence was either pre-op conduct or op/post op conduct

If youre in federal court in state with fact pleading, federal court is liable to narrowlyinterpret occurrence

Boner: ct allows amendment to relate backComplaint 1: show reasonable person would have kept basketball court in better

conditionComplaint 2: have to show you breached the standard of care for counseling

Court looks notat evidence, but at timing discovery not over, etc.; also, was same

occurrence, just different theories (mandatory practice went toward counselingmalpractice)

Illinois has different standard for relating back than federal court does (2-616) cause of action is generally narrower than federal courts claimGray: if allegations of complaint as initially filed failed to state a claim, and should havebeen dismissed, you cant amend to evidence later;

also, if youre gonna use a statute, have to include it in initial pleadings

34


35/44

Weidner: under 2-616 (b), relation back original complaint had to allege the same causeof action

Illinois test for relation back: In Illinois, because it is a fact pleading state, the use of

same v. different body of evidence is a fairly reliable test for whether something relatesback; remember, RELATES BACK IS ONLY AN ISSUE WHEN SOL HAS RUN

When you name the wrong party: federal rule 15(c)(3); Ill. 2-616(d) amendment relatingback list of conditions:(1) initial complaint timely filed(2) inadvertently misnamed(3) person youre really suing had actual service, even though perhaps not in same capacity(4) person knew action was ;ending and grew out of his or her own actions (NOTE: in

Illinois you get service within sol if you have the name wrong)(5) grew out of same occurrence as in original pleading

As SOON as you find out youve sued the wrong person, immediately go amend Inadvertence must not occur throughs own negligence

With a corporation, you could, and should, call Secretary of State to find outif its a corporation and if so what the name is

Misnomer: 2-401 misnamed parties may be corrected at any time

Borg: true misnomer case phone book name was Chicago Zoological Park Inc., was suedunder that name instead of Chicago Zoological Society, which was correct name

Sued correct party under wrong name; there was no other entity

might have beenidentifying as a mistake

2-401 does not have to have had notice before SOL ran out

2-204 agent has to be someone who in the course of their normal business to relay themessage to the person for whom it was intended

REMEDIES: specific v. substitution

Restitution (ex) criminal steals cash, buys stock, stock value goes up, in this remedy

gets stocks; gets more than he lost

Usually are talking about compensatory remedy goal is to restore the injured party to theposition he would have been in had the injury not occurred

Not really compensatory, because even the innocent party loses attorney fees

One argument for punitive damages is to alleviate hardship of attorney fees

Limited by duty to mitigate

Different from personal injury, because personal injury is always personal and unique

35


36/44

Prejudgment interest is within discretion of the court more likely on monetarydamages with a clear amount, NOT on pain and suffering

Post-judgment interest is routine (ILCS 2-1303 9% from date of judgment until datejudgment is satisfied

Liquidated damages : sometimes by K, sometimes by statute

By K : if damages would be hard to calculateNot awarded if they are so high as to be a penalty

Punitive : to punish for willfulness/malicious intent s often want to allegepunitive because it opens up whole categories of evidence in discovery (ex., net worthor assets)

In Illinois, cant plead punitive damages initially, have to show cause whyyou should be allowed to amend and add them (takes permission of court under 2-1207)

US v. Hatahley: thes were entitled to market value, or replacement cost, of their horses

and burros as of the time of the taking, and the use value of the animals during the interim

between the taking and the time they, acting prudently, could have replaced the animals Time for replacement by reasonably prudent person does NOT take into account the

UNAVAILABILITY OF REPLACEMENT or the economic condition of the

Horses are generally considered more of an economic commodity, use economicanalysis

Burden of proof is on to prove value; in barter economy, very difficult

Also, pain and suffering is an individualized thing, cant get a class-action average painand suffering

Honda Motor Co. v. Oberg: said Oregons statute limiting judicial review of punitive

damages is in violation of procedural Due Process

BMW: although supreme court has reviewed several cases without saying award too large,in BMW said that extremely high awards of damages can be unconstitutional

Violation of substantive due process

Specific remedies:

Ejectment, replevin courts of law

In courts of equity constructive trusts, injunctions/failure to obey = contempt; specific

performance

Declaratory relief:Both state and federal allow for this Allows court to say what the law is Reverses roles becomes

36


37/44

37


38/44

CIV PRO TUTORIALPersonal Jx: two ways to get (always the issue is jx over)1) consent2) power/basis

Traditional ways to establish jx (leading case Pennoyer v. Neff)Cardinal rules: deal with territory1) All States have jx over persons and property within their territory2) No States have jx over persons and property not within their territory

Modern: International Shoe testMust have both of the following elements:1) minimum contacts ( must have minimum contacts with forum state)

2) traditional notions of fair play and substantial justice (even with minimum contacts,assertion of jx must not offend this)

NOTE: does not overrule old test is consistent because if you are present or ownproperty, that satisfies minimum contacts, and since youre there, doesnt offend traditionalnotions

Minimum contacts and traditional notions of fair play and substantial justice (Intl Shoe):A) Minimum contacts:

1) Nature and quality of thes contacts with the forum State

2) Systematic and continuous contacts?3) Did cause of action arise in the forum state?4) Did purposefully avail itself of the protection and benefits of forum States

laws? (Hansen)

B) Comports with traditional notions of fair play and substantial justice: each of partieshas an interest and its a balancing test where does the weight of the concerns fall?

1) Burden on the (cost and convenience)

2) Forum States interest in adjudicating the dispute (usually States interest inprotecting rights of its citizens usually)

3) Thes interest in obtaining convenient and effective relief (usually is

inconvenient for to go elsewhere)4) Interstate judicial systems interest in obtaining the most efficient resolution of the

dispute (courts interest in efficiency)5) Shared interest of the several States of furthering their fundamental substantive

social policies (sort of a catch-all)

Specific v. General jx:

A) general jx: where the s contacts with the forum state are sufficiently

substantial to support jurisdiction even over claims unrelated to those contacts

Buzz words like continuous and systematic pursuit of general businessactivities

38


39/44

Illinois is very likely to find jx

Connolly: Belgian tires court adopted stream of commerce broadapproach

Mamder: subsidiary co. was being used by company to do work,and thats enough; even very tenuous corporate contacts are enough

(towing barges on river) Williams: passive use of state transportation system is enough

B) specific jx: relation between thes contacts and the claim on which the is

suing(1) tort

a) World Wide Volkswagen

mere foreseeability of being haled into court was not enough unilateral acts of the are not enough

b) Asahi: federal case which discusses stream of commerce (is a corporationwho injects product into stream of commerce; sufficient minimum contacts

and traditional notions of substantial justice and fair play One group of justices took broad approach (injecting into stream ofcommerce is enough), one group took narrow approach (injecting intostream of commerce is not enough)

c) Illinois cases: Yates (location of activity) and Wimmer (bar on line)

Last event doctrine: if last event too place in forum state, enoughfor jx

Location of activity: where the tort takes place (what is the activityyoure looking at where act or omission took place [lawyer sat on hisbutt in KY)

B) Contract1) Burger King: substantial and continuous contacts: tied to the K(negotiations, formation and performance) knowingly over the course of time not random, fortuitous, or attenuated2) Empress: voluntary initiation by coupled with partial performance in

forum state is enough contacts3) Chalek: passive buying is not enough (ask who initiated the act?)

Internet cases:CompuServe: purposeful availment approach enough to allow jxCybersell: not jx because of lack of purposeful availment (passively putting

something out there is not enough)

Try to find paradoxical cases which seem inconsistent so you can argue both sides;boils down to fundamental fairness as determined by minimum contacts, traditionalnotions, etc.

39


40/44

28 USC 1391 Venue generally(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may,

except as otherwise provided by law, be brought only in(1) a judicial district where any defendant resides, if all defendants reside in the same

State,(2) a judicial district in which a substantial part of the events or omissions giving rise

to the claim occurred, or a substantial part of property that is the subject of theaction is situated, or

(3) a judicial district in which any is subject to personal jurisdiction at the time the

action is commenced, if there is no district in which the action may otherwise bebrought (only if there are s from different states or if the subject of action isoverseas) personal jx state boundaries

b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship (ex.admiralty jx) may, except as otherwise provided by law, be brought only in

(1) a judicial district where any defendant resides, if all s reside in the same State

40


41/44

(2) a judicial district in which a substantial part of the events or omissions giving riseto the claim occurred, or a substantial part of property that is subject of the actionis situated, or

(3) a judicial district in which any may be found (as opposed to a judicial district in

which any may be subject to jx), if there is not district in which the action may

otherwise be brought (more limited than (a)(3) in (a)(3) any district in the state)

c) For purposes of venue under this chapter, a that is a corporation shall be deemed to

reside in any judicial district in which it is subject to personal jx at the time the action iscommenced. In a State which has more than one judicial district and in which a that is acorporation is subject to personal jx at the time an action is commenced, such corporationshall be deemed to reside in any district in that State within which its contacts would besufficient to subject it to personal jurisdiction if that district were a separate State, and, ifthere is no such district, the corporation shall be deemed to reside in the district withinwhich it has the most significant contacts.

d) An alien may be sued in any district (also applies to alien corporations)

e) A civil action in which a is an officer or employee of the United States or any agency

thereof a

Documents

Civ Pro I (Adams)