Civil Procedure 2 Outline

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Civil Procedure 2 Outline

			I.	Jurisdiction: Does the Court have power over this ∆? ••••••••••••••••••••••••••••••••••••••••§Jurisdiction

			A.	Personal Jurisdiction (In Personam):

			1.	Personal Jurisdiction is ∆ Oriented: Rules of Personal Jurisdiction are ∆ oriented. πs are NOT free to bring suit wherever they choose. Pennoyer v. Neff. (In Personam = Directed toward a particular person.)

			a.	Choosing the Forum: Geographic location of the Court (synonymous with Venue).

			(1)	Jurisdiction (whether Personal or Subject-Matter): Limitations upon which court can be chosen by the π.

			(a)	Personal Jurisdiction: Power of the Court to require ∆’s to come to the state and defend lawsuits there.

			(2)	∆’s Rights: The focus of jurisdictional issues is on the ∆’s Due Process Rights, not the rights of the π.

			(a)	Jurisdiction has to conform to “traditional notions of fair play and substantial justice” (International Shoe).

			(3)	3 Requirements to Find the Right Court: Personal Jurisdiction, Venue, & Subject Matter Jurisdiction.

			b.	Traditional Rule: Power Theory of Personal Jurisdiction (Capias Ad Respondendum)

			(1)	Historical Writ of Capias ad Respondendum: In early English practice, the ∆ was simply arrested and jailed until trial.

			(a)	Service of Process: Replaced this practice; Service of Process illustrates that the Court could have seized ∆ to establish jurisdiction. (Burnham): concept of Capias ad Respondendum is still valid law, the process is simply different.

			(2)	Due Process Requirements for Personal Jurisdiction:

			(a)	Key Question: Will Personal Jurisdiction be fair to the ∆?

			(b)	Notice: Fair & Adequate Notice; Must be personal NOT by publication; (Mullane)

			(c)	Minimum Contacts with the forum state. (International Shoe)

			(3)	General Standards for Establishing Personal Jurisdiction: > Subject to the Minimum Contacts Test <

			(a)	Physical Presence: ∆ is present in state and process is physically served;

			I.	“Transient Jurisdiction”: A state has jurisdiction over a ∆ to a suite if physically present in state, even if only briefly. (Pennoyer)

			A.	Exception: Does not apply to corporations; only natural persons.

			(b)	Service of Process: Notice Must be Given (to satisfy Due Process);

			I.	Fraudulent Inducement Doctrine: Service of Process is NOT valid when the π lures the ∆ with deceit or falsehood.

			(c)	Domicile (where the ∆ lives); a person does not need to be present in the state to be sued; (Milliken)

			I.	Corporations: No rights under the Privileges and Immunities clause (only “legal persons”);

			(d)	Consent & Waiver: (∆ agrees to Personal Jurisdiction);

			I.	Express: Agreeing affirmatively to consent to jurisdiction;

			A.	Can be assigned by the state; (Kane v. NJ)

			B.	Forum Selection Clauses:

			1.	If negotiated, generally enforceable;

			2.	If not negotiated, must be tested for fundamental fairness:

			a.	Forum selection clauses which modify jurisdiction unilaterally (no negotiation) must be fundamentally fair to the party against whom it is enforced, else it violates due process. (Stobaugh v. Norwegian Cruise Lines)

			II.	Implied: Presence in the forum state implies being protected by and taking advantage of the State’s laws, thus implied consent.

			A.	Example: Cars are inherently dangerous, it is implied that you consent to suit or ability to bring suit (Hess, Kane);

			B.	When π sues, gives Implied Consent to submit to the state’s jurisdiction.

			(e)	State Long-Arm Statutes:

			I.	Statutes that enable states to establish Personal Jurisdiction beyond their borders for certain acts over absent ∆s. Effectively destroys the principles of Pennoyer v. Neff.

			A.	Usually unnecessary: Because residents are already subject to Personal jurisdiction, & out-of-staters served in-state are subject to Personal Jurisdiction under the theory of Capias ad Respondendum (power theory);

			B.	Must be Constitutional:

			1.	Due Process requires that ∆ have sufficient contacts, undertaken purposefully, within the forum state, must be fair to sue ∆ in forum state. (International Shoe)

			c.	Modern Due Process Standard: MINIMUM CONTACTS TEST & Fairness/Reasonableness

			(1)	“Quality & Nature” of Minimum Contacts is Key: “Quality & Nature” of the Contacts is the relevant criteria. (International Shoe.)

			(a)	Single Contact: Sometimes even a single contact is enough to establish Personal Jurisdiction. (e.g. a Contract)

			I.	A claim must arise from the Contacts with the forum; (Helicopteros v. Hall)

			II.	Crucial Contact: The contacts that spawned the lawsuit are the crucial point for Minimum Contacts analysis.

			(b)	“Casual or Isolated” Contacts Insufficient: Casual or isolated contacts do NOT count for minimum contacts.

			(c)	Purposeful: Are the contacts purposeful? (Burger King v. Rudzewicz)

			I.	Foreseeability of Litigation: Just because a ∆ may have been able to foresee the possibility of litigation from its products entering the Stream of Commerce of the forum state is NOT sufficient to establish PJ; Purposeful Availment is necessary; (World-Wide Volkswagen v. Woodson)

			II.	Stream of Commerce: If a commercial actor puts its products into the “stream of commerce” in a specific forum state, they may be permitted to be sued in that forum; (Asahi Metal Industry Co. v. Superior Court)

			A.	Asahi holding was broad: “Sending goods into the stream of commerce, at least in substantial quantities, constitutes purposeful availment, whether the original maker knows the goods will be sold in a particular state or cultivates customers there.”

			B.	Brown held that if a company “indicates that they desire to limit the area of distribution” of their product, inadvertent presence of their product in the forum state may not be enough to enable the assertion of PJ.

			III.	Purposeful Availment: ∆ must “purposefully avail” itself of the privilege of conducting business within the forum state (Hanson v. Denckla), thus invoking the:

			A.	Benefits & Obligations of State Laws: If a ∆ purposefully avails itself of a State’s laws, General Jurisdiction can be achieved. If NOT, then ONLY Specific Jurisdiction is achievable.

			B.	Calder Effects Test: Test for Torts committed outside of the forum state:

			1.	∆’s Intentional actions;

			a.	Some activities in the forum state support ∆’s income (Continuous & Systematic Minimum Contacts element).

			2.	Expressly aimed at the forum state;

			a.	Brunt of the harm was felt in the forum state.

			3.	Causing harm which ∆ knows is likely to be suffered in the forum state.

			a.	∆ should reasonably expected to be haled into forum state’s court for actions.

			4.	POLICY: π should not have to go to ∆’s state to see redress for ∆’s intentional action (State interest);

			a.	Due Process: Is NOT violated by making ∆ who intentionally harms a π answer in any state where tort causes harm.

			(d)	Continuous & Systematic Contacts: ∆ has Continuous & Systematic presence;

			I.	General Jurisdiction: Continuous & systematic contacts are substantial enough to justify General Jurisdiction? If no, then:

			II.	Specific Jurisdiction: Is the ∆’s purposeful contacts with the forum sufficient related to the claim or qualify for minimum contacts sufficient for Personal Jurisdiction?

			(e)	Convenience:

			I.	How convenient is it for the ∆ to appear in the forum state court?

			A.	With modern transportation, this bar is fairly low; balanced against:

			B.	State has an interest in “providing effective means of redress for its residents” (McGee).

			1.	Validates Long-Arm Statutes;

			2.	Policy: To fail to allow Long-Arm Statutes would make some companies effectively “judgment proof.”

			(f)	Reasonable: The exercise of Personal Jurisdiction is reasonable. (Burger King v. Rudzewicz)

			I.	Personal Jurisdiction cannot offend Due Process and “traditional notions of fair play and substantial justice.”

			II.	7 Factors are balanced to see if this is met: (from Panavision v. Toeppen)

			A.	The extent of the ∆’s purposeful interjection into forum state;

			B.	The burden on the ∆ in defending in the forum;

			C.	The extent of conflict with the sovereignty of the ∆’s state;

			D.	The forum state’s interest in adjudicating the dispute;

			E.	The most efficient judicial resolution to the controversy;

			F.	The importance of the forum to the π’s interest in convenient and effective relief;

			G.	The existence of an alternative forum.

			(2)	Irrelevant: Unilateral acts of 3rd persons are irrelevant.

			(3)	Attaching Judgments & Personal Jurisdiction: (Pennoyer) A court may enter judgment against a non-resident only if the party:

			(a)	Is personally served with process;

			(b)	Full Faith & Credit Clause of Constitution means: States must respect the judgement;

			(c)	Only Defense to judgments for out-of-state defendants is: Personal Jurisdiction was somehow invalid.

			(4)	Federal & State Personal Jurisdiction:

			(a)	The 14th Æ to the Constitution applies Due Process to both the Federal system and the State systems. This is why Personal Jurisdiction is identical in the Federal and the States and will be ruled on the same way; in this way, you can think of Federal holdings being in control of issues on Personal Jurisdiction even for the states.

			(b)	Exception: The Federal Rules on Personal Jurisdiction are the FLOOR; the states can issue higher and more stringent standards, in which case state holdings on those more stringent rules will be controlling (insofar as they do not violate the Federal due process rules).

			2.	PJ: Specific Jurisdiction: Determined by Degree of Minimum Contacts

			a.	∆ is ONLY subject to jurisdiction for claims arising out of the Minimum Contacts:

			(1)	Single Act in the Forum State may be enough; (McGee)

			(2)	Continuous but Limited Act in the Forum State;

			(a)	Exception: If the ∆ Consents, then General Jurisdiction can be asserted.

			b.	Example: If a car wreck occurs between two parties, one from Oregon and one from Washington, in Idaho, they would not have to sue in Idaho because of this. They would sue in their home state or the state of the ∆ for the damages claimed.

			c.	Pendent Personal Jurisdiction: Exists when a court possesses personal jurisdiction over a defendant for one claim, lacks an independent basis for personal jurisdiction over the defendant for the second claim.

			3.	PJ: General Jurisdiction: Determined by Degree of Minimum Contacts

			a.	∆’s activities in the state are so substantial and continuous (much higher burden than Minimum Contacts):

			(1)	∆ has deliberate presence in the forum state (sporadic, repeated contacts not enough);

			(2)	∆ actively solicits contacts in the forum states;

			(3)	∆ would expect to be subject to suit in the forum;

			(4)	∆ would suffer no inconvenience from defending there.

			(5)	∆ has presence that almost approximates physical presence in the forum (in some cases does: companies with offices, reps, et al.).

			b.	Example: A corporation may advertise and sell so many products for such a long time within a state that it is subject to personal jurisdiction for any claim against it, even if the claim involves activity that occurred only outside the state.

			4.	PJ: General v. Specific Jurisdiction: Determines What Claims can be Asserted by π

			a.	The distinction determines what claims can be made. If a court has general personal jurisdiction over a particular defendant, the plaintiff may pursue any and all claims against that defendant. If court has only specific jurisdiction over that defendant -- related to a particular transaction -- only claims related to that transaction may be pursued in that court. Any other claims against the defendant must be asserted in a different jurisdiction.

			B.	Personal Jurisdiction: Types of Suits (In Rem, Quasi In Rem)

			1.	In Rem Jurisdiction = Jurisdiction over a particular item of property within the forum state.

			a.	Jurisdiction In Rem assumes the property or status is the primary object of the action.

			b.	Dead Doctrine: Shaffer v. Heitner, 1977, holds that Personal Jurisdiction cannot be founded on property within a state unless there are sufficient contacts within the meaning of International Shoe.

			c.	In Rem Jurisdiction and In Personam Jurisdiction are largely indistinguishable now.

			2.	Quasi In Rem Jurisdiction = Rights of a particular person to certain property within the forum state.

			a.	∆ Is Not Bound Personally: Property is attached via Pre-Judgment Seizure.

			b.	Attachment:

			(1)	Suit in which the dispute between the parties has nothing to do with the presence of the property within the forum state.

			(2)	Property can be attached by court as “hostage” to a suit against the owner of the property. Often stockholder derivative suits.

			c.	Dead Doctrine: Shaffer v. Heitner, 1977, holds that Personal Jurisdiction cannot be founded on property within a state unless there are sufficient contacts within the meaning of International Shoe.

			d.	Type 2 Quasi In Rem Jurisdiction Still Valid:

			(1)	Example: Painters paint a house and sue the owner for Breach of K or some other reason. Because they cannot remove the paint from the house, they cannot sue In Rem, so they must sue Quasi In Rem.

			C.	Federal Venue: USC 87 § 1391 (Miller: “Venue & Personal Jurisdiction are essentially interchangeable.”)

			1.	Transfer by the Parties (among US District Courts):

			a.	Purpose: Prior to 1966 federal venue was only proper (except where specified by federal statute) in the ∆’s state of citizenship. This created “venue gaps” when multiple ∆’s where citizens of different states for the same action. Congress closed the “venue gap” by permitting suits in the federal district “in which the claim arose”.

			b.	28 USC § 1404(a): Change of Venue

			(1)	π, ∆ entitled to seek a change of venue;

			(2)	Transfer permitted only to a district where the action could have been brought. And only if:

			(a)	Convenience of the parties (proper venue to another proper venue);

			(b)	Ease of access to witnesses and evidence;

			(c)	Cost of obtaining evidence and witnesses;

			(d)	Jury’s ability to view the scene of the accident/incident/claim;

			(e)	Case load in the proposed Venue’s docket.

			2.	Transfer by the Court - Forum Non Conveniens: ∆ Motion (or by the Court itself)

			a.	An equitable doctrine in common law permitting a court to refrain from hearing and determining a case when the matter may be more properly and fairly heard in another forum. For state to state court, this is used. For Federal Court only applies when a case involves citizens of another country because §1404 available for Federal Court venue changes.

			b.	Do Not Disturb Venue: π’s choice of venue/forum is not to be disturbed except upon a compelling showing by ∆ (Reyno):

			(1)	An adequate alternative forum is available;

			(2)	relative ease of access to sources of proof;

			(3)	availability of compulsory process for attendance of unwilling witnesses;

			(4)	the cost of obtaining attendance of willing witnesses;

			(5)	possibility of view of of premises, if view would be appropriate to the action;

			(6)	all other practical problems that make trial of a case easy, expeditious, and inexpensive.

			3.	Oregon §14.030:

			a.	So broad that Personal Jurisdiction nearly becomes venue.

			II.	Subject Matter Jurisdiction ••••••••••••••••••••••••••••••••••••••••§Subject Matter Jurisdiction

			A.	Subject Matter Jurisdiction in General:

			1.	Timing: Any events that occur after the filing of a complaint are irrelevant in the adjudication of the case; unless those events create mootness.

			a.	Jurisdiction is decided on the day the suit is filed, not before or after.

			2.	Purpose:

			a.	Governs Access to Federal Court: π must select a court that has Personal Jurisdiction over the ∆ and SMJ over the claim;

			3.	NO Waiver: Subject Matter Jurisdiction CANNOT be waived; (PJ and Venue can be)

			a.	Judgment w/o SMJ: A judgment issued by a court that did not have SMJ is forever a nullity.

			4.	Federal Courts are Courts of Limited Jurisdiction - Cases eligible to be heard:

			a.	Federal Law Questions: Cases arising under Federal Law;

			(1)	If a case arises out of a federal law, any federal court has SMJ over it and can hear the case.

			b.	Diversity: Cases between citizens of different states (Diversity Jurisdiction).

			B.	Diversity of Citizenship Jurisdiction (Grounds for Federal Jurisdiction.) /// If you see a Diversity Exam Question, look for Erie.

			1.	Å3, §2: Controversies arising between citizens of different states.

			2.	Purpose & Requirements:

			a.	Purpose: To exclude inconsequential cases from Federal Court.

			b.	Purpose: To provide a safety valve against out-of-state defendants from local prejudice.

			c.	Requirements: The authority of a Federal Court to hear and determine cases exceeding $75,000 (meaning 75,000.01) or more in which the parties are citizens of different states, or in which one party is an alien. (The $75,000 is the amount claimed, not necessarily awarded.)

			(1)	Aggregating Claims:

			(a)	One ∏ v. One ∆: π may combine claims arising from the same Cause of Action against the same ∆ to reach $75,000.01.

			(b)	One ∏ v. Several ∆s: A π with actions against several ∆s may not aggregate for purposes of reaching the $75,000.01 amount.

			I.	Joint Claims Exception: Joint Claims may be filed because the court will see it as one claim (e.g. A sues B,C,D for joint tort liability for $76K: this would be allowed; separate claims for each would not be.)

			(c)	Several ∏s v. One ∆: Permitted ONLY where πs are seeking to enforce a single title or right which they have a common and undivided interest.

			(d)	∆’s Motion to Dismiss Based on Recovery Amount: May be permitted, with discovery, to ascertain if the actual amount recoverable is less than the π $75K threshold.

			(2)	§1332(c)(1) Corporations: Corporations are citizens for diversity purposes of both:

			(a)	The State where they are incorporated and also;

			(b)	Where their principal place of business is located.

			(3)	Diversity Must be Present at Complaint Stage: If diversity does not exist when complaint is filed, it cannot be created later.

			(a)	Ω of Complete Diversity: No diversity exists if ANY party on one side of suit is a citizen of the same state as any party on the other side of the suit (Strawbridge).

			(b)	Citizenship = Where domiciled (physical presence + intent to stay) (Saadeh)

			(4)	Smaller Recovery: Where π recovers less than 75K, judge may deny court costs to π.

			(5)	No Waiver: Since this is a Subject Matter Jurisdiction issue, may not waive.

			(6)	Where Diversity will NOT apply: Federal courts will NOT hear diversity cases related to Probate or Domestic Relations.

			3.	The Erie Doctrine: State Law in Federal Courts (Erie RR v. Tompkins, 1938) / Choice of Law

			a.	Purpose & Twin Aims of Erie:

			(1)	Discourage “forum shopping” and;

			(2)	Avoid the inequitable administration of justice.

			(a)	Abolished Federal Common Law which was established by Swift v. Tyson.

			b.	Principle: In federal diversity suits, federal courts MUST apply the state substantive law (common law) that would be applied by the courts of the state in which they sit. Federal courts, however, are free to use their own procedural law, even in diversity cases. (Hanna)

			(1)	Procedural v. Substantive Law: Procedural Law tells you how to assert your rights. Substantive Law tells you what your right are.

			(a)	Statutes of Limitations: Are a little bit of both, thus often an Erie issue.

			(2)	USC §1652. Rules of Decision Act of 1789 (RDA): Requires Federal Courts to apply the law of the states in which they sit to cases of diversity.

			(a)	General Ω: Apply the law of the state where the harm or injury occurred.

			(3)	USC §2072. Rules of Procedures & Evidence (REA, Rules Enabling Act): Provides rules for how federal courts decide legal issues in diversity cases.

			(4)	Hybrid Law or When Erie becomes Problematic: When a state issue is both procedural and substantive in nature the question becomes, which law should be applied? State or Federal?

			c.	ERIE ANALYSIS:

			(1)	Three Basic Questions:

			(a)	Do you follow state law or federal law?

			(b)	If you follow state law, which state’s law do you follow?

			(c)	Once you’ve decided what state’s law applies, how do you interpret that law?

			(2)	Guided Erie Analysis:

			(a)	Is there an applicable Federal Statute?

			I.	If YES: Enforce it & ignore Erie analysis (Supremacy Clause).

			II.	If NO: Is there an applicable FRCP?

			A.	If NO: Analyze as an “Unguided Erie” problem, below.

			B.	If YES: Is it valid (i.e. constitutional and within the authority of the REA (procedural))?

			1.	If YES: Enforce it

			2.	If NO: “Unguided Erie” problem again.

			(3)	Unguided Erie Analysis: Consider the following factors, argue all of them:

			(a)	Outcome Determinative? (Guaranty Trust v. York)

			I.	For the same transaction, a suit by a non-resident litigant in federal court instead of state court a block away should not lead to a substantially different result. If it does, use the State Law; if it does not, then you may use Federal Law.

			(b)	Interests of Federal Government and State: Balancing Test (Byrd)

			I.	Federal Interests: Maintaining autonomy of courts, administration.

			II.	State Interests: Substantive interests

			III.	Upshot: When a state law conflicts with federal law and the state law does not involve rights and obligations (substantive law), federal law must be applied. (Byrd)

			A.	Mitigating factor: Will the twin aims of Erie be served or hindered?

			(c)	Inducements to Forum Shopping (Hanna)

			I.	If application of state or federal law causes this result, use the other law.

			(d)	Inequitable administration of Justice (Hanna)

			I.	If application of state or federal law causes this result, use the other law.

			d.	Inverse Erie:

			(1)	If a state court is adjudicating a federal substantive right, the state court is obliged to apply federal law.

			(a)	Why? Because of the Supremacy clause.

			e.	Certification:

			(1)	When a state authorizes by statute, court rule, or constitution, a federal court may refer uncertain or unsettled questions of state law to the state’s highest court for decision. Under this procedure, the case itself remains in federal court, but the state decision provides ground for a more solid decision in the federal court. (See cases like Mason v. American Emery Wheel Works, where federal courts have to rule as if they were the sitting state supreme court.)

			C.	Federal Question Jurisdiction (Grounds for Federal Jurisdiction.)

			1.	Diversity Irrelevant if a Federal Question: Diversity does NOT matter if the issue is a Federal Question.

			2.	28 USC §1331: “The district courts shall have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States.” Grants federal courts General Jurisdiction over Federal Questions which it did not have prior to 1875.

			a.	State Law Disputes: State Law disputes remain in State Court unless the elements of Diversity Jurisdiction are satisfied.

			3.	SMJ Examination Ω: If the parties do not raise Subject Matter Jurisdiction, the court MUST.

			4.	SMJ Examined from a Well-Pleaded Complaint: The Well-Pleaded Complain Ω (Mottley)

			a.	π has to raise Federal Issue in a complaint that includes only the elements needed to prove claim;

			(1)	π & ∆ Prohibition to Establish SMJ: π Alleging an anticipated constitutional defense in a complaint does not give a federal court Subject Matter Jurisdiction (unless Diversity Jurisdiction is established). Stated in another way, in two steps:

			(a)	If π sues in state court and ∆ counters with Federal Claim: CAN’T be removed to federal court;

			(b)	If a π sues in federal court and ∆ counters with a state claim, jurisdiction is not defeated.

			(2)	No Waiver: Since this is a Subject Matter Jurisdiction issue, may not waive.

			b.	Policy: Allows court to determine jurisdiction at the beginning before the ∆ answers.

			5.	Federal Laws: Is it a Federal Cause-of-Action? Factors for determining; if not, there must be some combination of the following to show that Congress did not intend a private federal remedy for violations of a statute that it enacted:

			a.	πs are not part of the class for whose special benefit the statute was passed;

			b.	Legislative intent of the Congress reveals no Congressional purpose to provide a private Cause of Action;

			c.	A federal Cause of Action would not further the underlying purposes of the legislative scheme;

			d.	The π’s Cause of Action is a subject traditionally relegated to state law.

			D.	Supplemental (Pendent) Jurisdiction

			1.	28 USC §1367: Pendent Jurisdiction (not a right, court discretion)

			a.	Function: π sues ∆ on a federal claim and wants to also add a state claim. Court will permit if all claims arise from the same nucleus of fact.

			(1)	Court still has discretion whether to allow state claim be added or not. Factors considered by court: (No answers would knock it out.)

			(a)	Is it a convenient trial package?;

			(b)	Does a state issue predominate?;

			(c)	Has the federal claim been dismissed so that only state claims remain?;

			(d)	Would a jury be confused?;

			(e)	Is it novel (a case of first impression for the state issue)?

			(2)	§1367(a): Allowable Claims. If π brings a proper federal claim that federal court has “original jurisdiction” the court may hear all claims as part of the same case or controversy under Å3. (Original Jurisdiction = Power to hear a case for the first time, as opposed to on Appeal/appellate).

			(a)	Same nucleus of operative facts must be present;

			(b)	Includes cross-claims and counter-claims.

			(3)	§1367(b): Limits. Court can’t hear claims by πs against persons made parties under Ω14 Impleader (Third-Party), Ω19 Compulsory Joinder, Ω20 Permissive Joinder, or Ω24 Intervention if it would destroy diversity.

			(4)	No Waiver: Since this is a Subject Matter Jurisdiction issue, may not waive.

			b.	Policy: Provides judicial economy and provides convenience and fairness to the litigants.

			2.	Ancillary Jurisdiction: Like Pendent Jurisdiction, simply with Diversity of Parties.

			a.	Ancillary jurisdiction allows a particular claim or party to be joined to an action without an independent jurisdictional basis. Ancillary jurisdiction may be exercised in the case of compulsory counterclaims, impleader of third parties, interpleader, and intervention as of right. Federal courts may exercise ancillary jurisdiction over a case or dispute, regardless of the citizenship of the parties or the amount in controversy, mostly in the interest of judicial economy and convenience to the parties.

			b.	Difference with Pendent Jurisdiction: Whereas pendent jurisdiction allows a federal court to hear state claims sufficiently related to an original federal claim, ancillary jurisdiction applies when the parties are in federal court because of diversity (i.e., each defendant is from a state different than each plaintiff) and one party wants to bring a claim against another party (possibly a third-party) which would otherwise defeat that diversity.

			c.	When Required: The Federal Rules of Civil Procedure expressly authorize the exercise of ancillary jurisdiction in the instance of a compulsory counterclaim. The rules state that the defendant is required to bring and compulsory counterclaims, which must be recognized by the federal court regardless of an independent basis for jurisdiction.

			E.	Removal Jurisdiction: From State to Federal Court

			1.	§1441 (a)(b) Removal (Also §§1442, 1443, 1445, 1446, 1447)

			a.	Only ∆ may remove.

			(1)	One-Way Removal: Out of state court and into federal court by the ∆.

			(a)	If Multiple ∆s: All ∆s must agree to removal.

			(2)	Only if: Suit could have been filed in federal court originally; ∆ moves to “remove” the case to federal court.

			(3)	Timing for Motion to Remove: ∆ has 30 days to make a motion for removal under these conditions: (Murphy Bros. v. Michetti Pipe)

			(a)	If summons and complaint are served together: 30-day period begins at once.

			(b)	If ∆ is served with summons and complaint is served later: 30-day period begins once the complaint is received.

			(c)	If ∆ is served with summons and the complaint is filed under local rules where a complaint is not required, the time run from the date the complaint is available through filing.

			(d)	If the complaint is filed in court prior to service, the 30-day period runs from the time the summons is served.

			b.	∏ + State Court: ∏s often prefer state court because:

			(1)	State judges are often elected, so speedy & fair adjudication;

			(2)	Federal courts are backed up with criminal cases;

			(3)	Litigation in federal courts is more expensive and time consuming;

			(4)	πs that get removed to federal court usually less successful than those who file there originally.

			c.	Removal Improper When:

			(1)	In Diversity: Removal is improper If ∆ is from the same state as the court in which the suit is filed;

			(2)	Individual Claims: Whole case is removed, not individual claims;

			(3)	Statutory Limitations, §1445: RR, Common Carriers, Violence Against Women Act, Federal Employers Liability Act, unemployment claims even if diverse.

			d.	Policy: Defense attorneys like to get cases removed to federal courts, because they are slower, more expensive, and less favorable to πs.

			III.	Trial ••••••••••••••••••••••••••••••••••••••••§Trial

			A.	Phases of the Trial:

			1.	Jury Selection

			a.	Ω47(a) = Voir Dire: Federal Court = Judges ask questions. State Court=Attorneys ask questrions.

			b.	Ω47(b) = Preemptory Challenges: Keep a potential juror off w/o offering good reason. In federal court, each side has 3.

			c.	Ω47(c) = Excuse for Good Cause: 1) Ability to be fair/impartial, 2) acquainted with party, lawyer, witness, 3) personal experience or commitments.

			2.	Opening Statements

			a.	Attorneys provide a roadmap of their cases and evidence for the jury (as the evidence is often not presented in order).

			3.	Presentation of Evidence

			a.	Sequence:

			(1)	Party with Burden of Proof goes first (usually π);

			(2)	Opposing side presents opposing evidence (usually ∆);

			(3)	Burden-of-Proof side presents rebuttal evidence;

			(4)	Opposing side may respond with rebuttal evidence;

			(5)	Process continues until there is no further evidence to present.

			b.	Federal Rules of Evidence:

			(1)	In general, FRE incline toward allowing the jury to hear all relevant evidence, unless it’s probative value is substantially outweighed by other factors.

			(2)	FRE §403, Exclusions: Relevant evidence may be excluded if “it’s probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The test: The main impact of evidence in dispute is to invite the jury to decide on a ground not authorized by law, then exclusion is justified; otherwise, it is typically not (as the goal of evidence is to prejudice the other side in the eyes of the jury).

			(3)	FRE §602, Competence: Only persons who can perceive events and relate what they saw under oath are permitted to testify.

			(4)	FRE §801, 803, 804, Hearsay Forbidden: Prevents a witness from proving something by means of an out-of-court assertion that is true; information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. Some is admissible under several exceptions.

			(5)	Privileges: Doctor-patient, attorney-client, husband-wife, and other confidential communications which are banned from introduction as evidence in court.

			(6)	Need to Object: The above rules are NOT self-executing; a judge will rarely prevent a party from introducing improper evidence unless the other side objects.

			c.	Ω50(a) = Motion for Judgment as a Matter of Law (JMOL) aka Directed Verdict:

			(1)	To prevail on a JMOL, the party must show that the opposing party has failed to satisfy its burden of production, and that judgment therefore be entered in the moving party’s favor. If granted, the case does not go to the jury.

			4.	Argument(s)

			a.	Forbidden: New evidence, statements of the lawyer’s personal beliefs.

			5.	Jury Instructions from Judge

			a.	Ω51 = Jury Instructions: Lawyer must object to instructions at time given or waive it.

			6.	Jury Deliberations & Verdict

			a.	Polling the Jurors: The loser may have the jury “polled” where the judge asks each juror if the verdict was theirs. If there is no dissent, the judgment is entered.

			7.	Post-Trial Motions & Judgment

			a.	Ω50(b) = Renewed Judgment as a Matter of Law (aka Judgement NOV (Notwithstanding the Verdict):

			(1)	Dissatisfied litigant asks the court to enter judgement in its favor even though the jury decided the case the other way.

			(2)	Prerequisite: Ω50(a) Motion must have been made in order to ask for a Ω50(b). If no Ω50(a) motion earlier, cannot make a Ω50(b).

			b.	Ω59 = Motion for a New Trial.

			(1)	Loser asks the court to set aside the verdict and order a new trial.

			(2)	New trial motion may result in an order known as remittitur or additur; a new trial occurs unless the other side agrees to a change in the amount of damages.

			B.	Right to Jury Trial: Æ7

			1.	Æ7:

			a.	“”In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.“

			(1)	First Clause: Describes the circumstances under which a litigant has a right to a jury trial;

			(2)	Second Clause: Only comes into effect after it has been determined that a right to a jury trial exists.

			b.	Policy for 7th Amendment: Framers feared unchecked life-appointed federal judges. Juries serve as a check on the sovereign in a civil courtroom.

			c.	Precedent in Control Today: Since Beacon Theatres the Court has found 7th Amendment right to a jury trial is required in legal, but not equitable, cases. Since legal and equitable law is merged in the FRCP, courts must determine in cases that have both kinds of issues/claims, if legal issues are present. If so, then the issue should be given to a jury to be decided before any judge decisions on issues of equity. Even if the legal claim is characterized as “incidental” to the equitable claim, it does not matter, the legal claim is entitled to a jury trial.

			(1)	Right to Jury Trial In:

			(a)	Purely law cases: have jury.

			(b)	Purley Equity cases: no jury needed.

			(c)	Mixed law/equity cases: presumption in favor of a jury trial.

			(2)	Jury Size:

			(a)	Does not have to be 12 persons to be constitutional. (Williams v. Florida)

			C.	Verdicts

			1.	Ω49(a) = Special Verdicts:

			a.	Jury answers certain factual questions from the court about findings of fact; the judge applies the law to the facts as the jury finds them and issues the Verdict. (Court has discretion to use or not.)

			b.	Court is required to harmonize the answers in a Special Verdict if possible to effect/uphold the verdict.

			c.	Party must object while the jury is empaneled; else party waives the right to object if the jury has gone home.

			d.	Policy against: Tends to weaken jury decisions and permits judges to have more power over verdicts.

			e.	Policy for: Intended to emphasize facts and prevent jury from acting on bias; make law more scientific of an exercise.

			2.	Ω49(b) = General Verdict with Interrogatories:

			a.	Jury gives a general verdict and also to answer specific questions concerning ultimate facts in the case.

			(1)	If verdict and answers are consistent, court approves judgment. If not, court has 3 options:

			(a)	Go with answers and enter Judgment Notwithstanding the Verdict (JNOV);

			(b)	Direct jury to reconsider and get them consistent;

			(c)	Order a new trial.

			b.	Party must object while the jury is empaneled; else party waives the right to object if the jury has gone home.

			3.	Tactics with Ω49:

			a.	If you are confident of a win, a general verdict eliminates arguments about any inconsistency (Ω48). If you sense a disaster, numerous special interrogatories afford more potential for inconsistency (49a, b); ∆s like Special Verdict forms. You might want to think about this and plan ahead.

			D.	Judicial Control of the Verdict

			1.	Ω50(a) = Judgement as a Matter of Law (JMOL)

			a.	Made at the close of the opponent’s presentation of their evidence; can be made by counsel or at the court’s discretion.

			b.	To be granted:

			(1)	Court must find there is insufficient evidence to go to the jury; or

			(2)	Court must find that the evidence is so compelling that only one result could follow.

			c.	Denial: Court finds there is sufficient evidence the facts could reasonably be viewed more than one way; as such that is a job for the jury as fact-finder. This is true even of undisputed facts.

			2.	Ω50(b) = Renewed JMOL as a Judgment Non Obstante Veredicto (JNOV) aka Judgment Notwithstanding the Verdict

			a.	Analyzed in the same way as Ω50(a). Made with 10-days after entry of judgment. May result in remittitur.

			b.	Can be made by counsel or at the court’s discretion.

			3.	Ω59 = Motion for a New Trial, Altering, or Amending Judgment

			a.	Situations in which new trial will be requested:

			(1)	because something was procedurally unfair in this trail, e.g judge admitted inadmissible evidence, gave wrong instructions to jury, et al.;

			(2)	because the verdict was against the clear weight of the evidence;

			(a)	lower standard than JNOV b/c it’s just a do-over, not a final judgment

			b.	Kinds of new trials that can be granted:

			(1)	Partial: can give partial new trial (i.e. keep liability verdict but hold new trial on damages);

			(2)	Bifurcation: can hold liability trial first, and then damage trial if necessary;

			(3)	Conditional New Trial:

			(a)	Additur / Remittitur: Judge can increase or decrease the damage award and offer the parties the revised award or a new trial, whichever they prefer. (3 methods on size: minimum amount jury might have given, amount court believes is right, or maximum amount a reasonable jury could have awarded).

			I.	Permitted: When the error in the verdict results from a specified misconception on the part of the jury and can be mechanically corrected without resolving a disputed issue of fact.

			II.	Permitted: When the amount of damages found by the jury is so excessive and exorbitant as to show passion and prejudice on the part of the jury.

			(b)	Additur: Not permitted in federal courts.

			4.	Remittitur: See notes above under Ω59.

			a.	Additur: Not permitted in federal courts (constitutional deprivation of the right to trial by jury).

			5.	Ω60(b)(6) = Juror Impeachment of the Verdict:

			a.	Text of Ω60(b)(6) exactly: “any other reason that justifies relief”;

			(1)	Federal Rule of Evidence 606(b): Juror cannot testify on any matter during deliberation except:

			(a)	Extraneous prjudicial information was brought to the jury’s attention;

			(b)	Any “outside influence” was improperly brought in;

			(c)	A mistake was made in entering the verdict on the verdict form.

			b.	Old Ω: Affadavits of Jurors may not be used to impeach the verdict; jurors may not impeach their own verdicts. (Delaval)

			c.	New Ω: Jurors may testify as to objective facts to impeach a verdict. Emphasis on objective facts that are objectively verifiable (subjective intentions and reasoning is not grounds for impeaching a verdict); this usually means influence from OUTSIDE the jury room; as opposed to acts that take place between jurors in the jury room. (Hutchinson).

			(1)	Policy for making this strict: To avoid impeachment of juries which would create instability in the jury system.

			IV.	Appeal ••••••••••••••••••••••••••••••••••••••••§Appeal

			A.	Requirements for Appeal

			1.	Right to Appeal? 28 USC §1291

			a.	No right to an appeal under the Constitution; only of Due Process.

			b.	Federal Courts: There exists a statutory right to a single appeal under 28 USC §1291; no right to hearing before the Supreme Court.

			(1)	Timely Notice of Appeal: Must file notice of appeal within 30 days (w/ possible extension of 14 days); judgment still enforce during this period. (Bowles)

			(2)	Policy for Appeals: Judges make mistakes for a variety of reasons. Appeals mitigate this reality. Also gives the losing side a change to vindicate themselves and legitimize the trial court system and legal system generally.

			c.	State Courts: Some state constitutions assure a constitutional right to appeal from state court judgments.

			B.	28 USC §1291 = Final Judgment Rule

			1.	The Rule: The Federal Courts of Appeals have jurisdiction over “appeals from all final decisions”; in other words, until the lower court has issued a final decision (judgement, whether on a motion or the entire case or a verdict), the appellate court will not review the decision. Policy: To be applied stringently to conserve judicial resources and ensure finality of decisions.

			a.	Final Decision = A judgment that ends the litigation on the merits and leaves nothing for the court to do but execute the judgement.

			(1)	Examples: A granted 12(b)(6) Motion to Dismiss or a 12(c) Motion for Judgment on the Pleadings would qualify as a Final Decision. Joinder or Severing Claims or Grant of Discovery Order would not.

			2.	Exceptions:

			a.	Collateral Order Exception: (Cohen, Hallock)

			(1)	Narrow class of decisions that do not terminate the litigation (Final Decision), but are so important and collateral to the merits that they should be treated as final. It is sparingly applied so as to preserve the rule in §1291. Typically used to avoid a trial. esp. those that would imperil a substantial public interest. Elements:

			(a)	An order must conclusively determine the disputed question;

			(b)	An order must resolve an important issue complete separate from the merits of the action;

			(c)	An order must be effectively unreviewable on appeal from a final judgment (in other words, a right would be lost without immediate review).

			(2)	Applied very rarely.

			b.	28 USC §1292(a)(1) = Interlocutory Injunction Exception:

			(1)	Statutory Exception for Injunctions: Appeal as of right from interlocutory orders of the district courts granting, continuing, modifying, refusing, or dissolving injunctions. (Temporary/preliminary injunctions only because of the theory that the injunction is to stop an immediate harm; permanent injunctions are only issued at the Final Judgment/Decision stage and therefore this exception would not apply. Carson.)

			(2)	Exception is limited by Supreme Court holding: Unless a litigant can show that an interlocutory order of the district court might have “serious, perhaps irreparable, consequence”, the exception will not be permitted.

			c.	Discretionary Appellate Review: (Nystrom)

			(1)	When statutory right of appeal is not available, litigants can seek discretionary review by applying for it. Usually, it’s an application for interlocutory review.

			d.	Discretionary Review by a Writ of Mandamus: (Will)

			(1)	If a District Court acts in a way that qualifies as “judicial usurpation of power”, an appellate court may intervene by issuing a Writ of Mandamus. (This is a very high bar to reach. Usually these are used to protect the right to a jury trial denied by a district court.)

			e.	Ω52(a) = Appellate Review of Lower Court Findings of Fact: (Bose)

			(1)	Findings of Fact shall not be set aside unless clearly erroneous in Bench Trials.

			(a)	Note: 7th Amendment to the U.S. Constitution prevents facts to be re-examined or set aside in any Jury Trial.

			(2)	Exception: If possible Constitutional issues are implicated, the Appellate Court is required to review the facts de novo to ensure proper consideration of the constitutional issues have been reflected in fact determinations.

				Abbreviation Key: Å = Article (Shift+Option+A) Æ = Amendment (Shift+Option+’) Ω = Rules (Option+Z) π = Plaintiff (Option+P) ∆ = Defendant (Option+J)