Professional Documents
Culture Documents
Civil Procedure Flowcharts Bennett
Civil Procedure Flowcharts Bennett
Civil Procedure Flowcharts Bennett
Personal Jurisdiction
Statutory Analysis of PJ
Const. Limit.
Stat. Limit
Subject
Matter
Jurisdiction
Presonal
Jurisdiction
2)
Venue
? must be here
No.
Yes.
Step 1a: Note Split in Authority Burnham
- Scalia +3 say that traditional basis alone is sufficient
for Personal Jurisdiction; BUT
- Brennan + 3 say that an Int'l Shoe Test still required.
Under both of these, weigh the relevant factors on sides both FOR & AGAINST on test to score max points
First, was there purposeful availment?
- ? must "reach out" into the forum
- The unilateral actions of another are insufficient
Calder Effects Test:
Are actions TARGETED at forum state & cause
EFFECTS there?
Walden 2014: Must target state itself, not just
people domiciled there. Airport police case.
Internet? SEE BELOW FOR SCALE
Internet Sliding Scale Contacts Test; Zippo Test adopted by Pavlovich. Has not been adopted by Sup. Court.
Shoe Part 2:
Asses
relatedness
of contact
No.
Yes.
Can be either
specific or general
Sufficient Contacts
Insufficient Contacts
Shoe Part 1:
Is there a
relevant contact?
Shoe Part 3:
Fair Play &
Substantial
Justice
Assessment
ONLY FOR
SPECIFIC PJ
DO NOT FORGET
Also keep in mind the availability of IR
and QiR to get some form of
jurisdiction if facts mention property in
the forum state.
Ultimately: If there is a relevant contact, the suit is based on it, and the fairness factors do not weigh against PJ in the forum, jurisdiction is PROPER.
Subject
Matter
Jurisdiction
Proper
Court
Presonal
Jurisdiction
Venue
+
2) Has Congress actually conveyed jurisdiciton in a statute? (Each claim must meet at least ONE)
Necessary to get Into Court
Federal Question - 28 U.S.C. 1331
Presonal
Jurisdiction
Is ? a resident of the
district? 1391(c)
(1) natural people =
district of domicle
(2) legal entity/ bsnss
If as ? ; anywhere
subject to personal jur.
If as ? ; only at the
PPoB
(3) non-resident as ?
venue is proper
anywhere. Joinder of this
kind of ? will not impact
venue det.
Venue
VENUE
1391(b)(2)
events or omissions
No.
Yes.
Private Factors
- Rltv ease of acces to evidence
- Avaliability of cmplsry process
for unwilling witnesses
- Cost of obtaining willing witnss
- Possible view of site of harm
- All other practical problems
that "make trial of a case easy,
expeditious, and inexpensive"
? ?
Adequacy of Alt
Venue
- ONLY "day in court"
- NOT
Jury trial
Theory of Rcvry
Damages
AND
1404 Transfer
Transferor choice of law applies
JOINDER
(Get cozy motherfuckers)
Parties
As a ? ? - 20(a)(1)
- Both ? s assert claims arising from 'same
transaction or occurrence' (or series thereof)?
AND
- Claims against ? involve any common question of
law or fact to all ? s?
LIMITED BY 1367(b)
Feasible?
- Will joinder
deprive court of
personal
jurisdiction?
- Does party
object to venue?
(19(a)(3)-must be
dismissed if valid).
LIMITED BY 1367(b)
As a ? ? - 20(a)(2)
- Are claims against ? s from the 'same transaction or
occurrence'? (or series thereof)?
AND
- Claims against them share any common question of law
or fact?
Claims
May a claim be joined by ? , ? , or 3p? ?
May ? or ? join another, unrelated claim? Rule 18(a)
- Is the additional claim against an 'opposing party'?
- Unrelated claims are permissible; but assess if compulsory if by ? .
- HOWEVER, these new claims must be assessed for independent subject-matter jurisdiction.
- AND res judicata may force a joinder if they DO arise out of same transaction or occurrence, even though 18(a) is completely permissive otherwise.
Must or may a ? make an additional claim?
Against a ? (or opposing party)? - Counterclaims
Compulsory?
Rule 13(a) Must
- If from 'same
transaction or
occurence' as claim
against him; then yes.
- IF NOT asserted. The
right to bring this claim in
future is WAIVED.
Permissive?
Rule 13 (b) May
- If from different events; then yes.
- IF NOT asserted. The right to bring
claim in future is NOT waived.
Then -> Rl 42 (b)
- Court will likely split these claims for
convenience, to avoid prejudice, or to
economize.
Against a non-party?
See Rule 14(a)(1) Impleader. May
Remember that the claim cannot merely
be an either/or proposition saying that
new ? is only liable to ? and not it;
"substitute ? ."
? 's impleader NOT LIMITED BY 1367(b)
o-? 's direct, initial actions against 3p?
ARE LIMITED BY 1367(b)
4? (a)
(pseudo P;
Joinder Addendum
? 4(b)
on o-P's side
for purpose of opp. party)
13(h) joinders may be slightly
off in function and clarity
Joinder of ? 4 by ? 1
on a counter-claim
13(h)
? 1-> ? 1 & 4? (a)
?2
Joined
by ? 1
Joinder of ? by ? 2
on a counter-claim
13(h)
? 2 -> ? 1 & ? 4(a)
Something related
13(a)
? 1 -> 1?
Negligence
13(a)
Compulsory
Brch of Diff K
13(b)
Permissive
Joinder of a ? by ?
20(a)(1)
Negligence
?1
Initial
Negligence
Breach of Diff K
18(a)
joinder of existing
claim
o-?
Initial
Brch of Diff K
13(b) Permissive
Negligence
13(g) Cross-claim
always non compulsory
Negligence
Negligence
13(a) Counter-claim
NOW compulsory
20(a)(2) joinder to
? 1 suit
? 2 Initial
3p?
Joinder of a ? by ?
20(a)(2)
14(a)
Impleader
OR
13(g) cross-claim
3p? (of ? 2)-> ? 3
totally permitted
first ->
<- second
OR
first ->
<- second
13(a) or 12
Compulsory
3p?
(resp. to
? 2 only)
first ->
<- second
<- first
se ->
co
nd
?3
Joined
by ?
1367(b)
irrelevant
for 3p?
but VERY
relevant
for o-?
Waiver of Process
Rule 33 - Interrogatories
Can only be sent to parties,
not to non-parties
30 days to respond.
Rule 36 - Req. for
Admission (Only to parties)
- Require party to admit or
deny specific factual
statements.
- 30 days to respond.
Mandatory Disclosures
Early Discovery
Rule 30 - Depositions
(Live)
Can be used to obtain
information from non-parties.
Rule 31 (Written Deps)
- Requires a Rule 45
subpoena for non-parties.
Late Disc.
requesting information
Post-Disc;
Pre-Trial
Enforcement of Provisions
Rule 26(c) - Protective Order
Court can order this to prevent, limit, or keep
secret files requested in discovery at the
Responding Party's request.
Failure to Respond Outright
Rule 37(d)(3) - Sanctions for Outright
Refusal to Respond or show to Deposition
- All 37(b)(2)(A) Sanctions minus contempt;
HOWEVER, court much more likely to enforce
a default judgment here due to the severity of
the transgression
37(b)(2)(A) Sanctions
- Refused facts decided in
other party's favor; OR
- Prohibit any challenge or
defense to this matter at
trial; OR
- Contempt of Court; OR
- Default judgment; OR
- Dismissal of complaint; OR
- Staying proceedings; OR
- Striking a pleading
Summary Judgment,
J.M.o.L., Juries,
& Failure to State a
Claim
12(b)(6) - By ?
? rests
50(a)(1) by ?
56(a) - By ? or ?
? rests
? rebutts
50(a)(1)
50(a)(1)
by ? , ?
by ? , ?
50(b) ? or ?
59(a) ? or ?
59(b) by court
Trial Begins
Pre-Trial
Trial
Submitted to Jury
Post-Trial
Analyze
BOTH
Post-Trial Motions
J.M.o.L. (Post-Trial) Rule 50(b)
- Loser moves for; but technically either can.
- MUST be filed w/n 28 days of verdict
- IF finds that jury was unreasonable on basis of facts:
Remedies:
- (1) Allow judgment on the verdict
- (2) Order new trial; or
- (3) Direct judgment as matter of law
- Remititur can be granted so long as both parties agree to the
amount. Additur is not permitted in federal courts.
Is J.M.o.L. Proper?
Ev. Disfavors ?
J.M.o.L.
for ?
Rule 12(b)(1)-(5),(7)
(1) Lack of subject-matter
(2) Lack of PJ
(3) Improper venue
(4) insufficient process
(5) insufficient service of process
(7) Failure to join indespensible
party
Area of Legt.
Diff of Opn.
Ev. Favors ?
A.C.
W.o.
E.
A.C.
W.o.
E.
J.M.o.L.
for ?
Jury Town
Burden of
Production
Burden of
Persuasion
? ?
Type of Action
Appeals
Implicit Req.
Class Actions
23(b)(1)
(A) sep trials would risk
inconsistent judgments
on the D; OR
(B) sep trials of
individuals, as practical
matter, would be
dispositive of other
class members or
would substantially
impede ability to protect
their interests.
23(b)(2)
D has refused to act on
grounds which would
solve issues for whole
class; only injunctive
relief permitted here.
Wal-Mart 2011: No
compensatory
monetary relief;
remedial focus only.
23(b)(3)
Seeks damages, must
show:
(1) Common question
predominates over
individual questions
(shared law or fact
alone insufficient); AND
(2) Class action is
superior means of
resolving the dispute.
BIG DIFF:
Only class in which
members are entitled to
notification and can opt
out of the class for
individual remedies.
1332 Diversity
- Citizenship for purp of 1332 is the
residence of the class
representative
- Amount in controversy however
must be met for EACH plaintiff
(BUT THERE IS A LOOPHOLE)
Settlement?
1367 Supplemental
Because 1367(b) does NOT include
parties joined under Rule 23; the
amount in controversy lacking by
each individual class member is
IRRELEVANT and can proceed
under supplemental jruisdiction.
FIRST ALWAYS
DETERMINE IF
THE CLAIM IS
OTHERWISE
PRECLUDED BY
A 13(a) cmpls c-c
Yes.
Res Judicata
No.
Yes.
Yes.
3) Decision on the issue
necessary to judgment of first
action?
- Would dif. decision on fact have
changed the outcome?
-Were there alt. grounds?
if so, NOT precluded.
Not.
Yes.
In Privity.
Claim not precluded.
Exact Party.
Not on merits.
On the merits
3) Claims are same from suit 1 and suit
2?
Test: Same transaction or occurrence?
"Common nucleus of operative fact"
? gets one shot to litigate everything
from same T/O
Note: Claims which could not have been
joined should not be barred.
No.
No.
Yes.
Mutuality Estoppel
- Asserted by either.
Defensive Estoppel
- Asserted by ? against ? .
Yes.
4) Was the judgment "final"?
Split in authority.
S.S. say that appeals process must
be concluded.
S.S. say that appeals process need
not be completed to apply to other jdgmt
No.
Yes.
Issue offensively precluded only if fair.
Claim precluded.
Precluded party is S.m.o.L.
Public Policy
Equitable
Exception?
Conflict of Res Jud b/w States - 1738 Full Faith & Credit
- If a claim or issue was decided in a federal or state court, and is then
brought in another judicial system, the principles of res judicata and
collateral estoppel from the original jurisdiction applies per 1738
1)There is no equitable exception to res judicata. Per Rehnquist, Finality
IS simple justice + public policy.
2) Blackmum says there should be an equitable exception in addition to
simple justice and public policy