SMJ (assess for every claim filed in fed ct!) 3)
No countervailing
PERSONAL JURISDICTION General
1) ∆ has continuous and systematic contacts with the
forum (“at home”) (GY, Daimler)
Specific
1) Served with process in forum
2) ∆’s agent is served w/ process in forum
3) ∆ is domiciled within the state
4) Consent to PJ - express, implied, waived
Statutory Test
1) Is there a Long-Arm Statute?
a. BULGE: if w/in 100m of ct. if joined under
14 or 19
2) Statute for PJ over tortious act?
a. Where mfr’d v. where injured
Constitutional Test
1) Tag “Transient” Jurisdiction (Burnham)
a. traditional basis of presence
(Pennoyer) is enough for PJ
b. Traditional AND International Shoe is
necessary (O’Connor)
International Shoe Standard
1) Minimum Contacts
a. Purposeful Availment
i. Reached out to forum in some way;
invoked benefit/protection of laws
b. Claim arose from contact in forum
c. Need more than Stream of Commerce
i. Seek to serve (i.e., ads, designing product)
(Asahi: SOC+)
d. # of contacts vs. quality of contacts
i. Cannot be based only on purchases
and sales; physical presence
2) Fair Play and Substantial Justice
a. Foreseeable: reasonably anticipate to be
haled into ct.
b. Burden on ∆ to show inconvenience
c. ∆ burden, state interest, legal sys.
interest, shared substantive policies
Electronic (Website)
1) Active, conducts business = PJ
2) Passively in market, only info ≠ PJ In-
Rem/QIR(1&2)
Attach as PJ basis must do at beginning;
QIR2 DNE, attach must relate to property
NOTICE – RULE 4
Served by person non-party at least 18 Must
be served w/in 90d w/ process: summons +
complaint Serving an Individual 1)
Personal Service
2) Substituted Service
a. Dwelling/usual place of abode
b. Suitable age/discretion, resides there
3) Serve ∆’s agent
Serving a Corporation
1) Officer or managing or general agent
Ct. can serve however/wherever state ct. can
Waiver of service
1) π can request ∆ waive service
2) ∆ must have good reason to not waive or else
pays cost
3) If waived = 60d to respond to complaint instead
of 21d, 90d if outside US Notice must be
reasonably calculated to inform D – newspaper
= last resort (Mullane)
If NO: state v. fed. interest?
Diversity Jurisdiction (DivJ) – §1332
1) Complete Diversity Rule: π ≠ ∆, all πs citizens
of diff. states than ∆s
2) Diversity of Citizenship
a. Individual: US citizen and where
domiciled (physical presence in state +
Intent to remain)
b. Corp: dual citizenship – PPB (nerve
center) + state of incorporation
3) Amount in Controversy >$75K
a. Cannot aggregate if multiple parties unless
joint claims
Fed. Question Jurisdiction (FQJ) – §1331
1) Case arises from under fed law
2) Well-Pleaded Complaint Rule
a. Is the Cause of Action st. or fed.?
i. If fed. = FQJ, If st. = go to (b)
b. State CoA incl. fed. ingredient?
i. No = no FQJ, Yes = FQJ
c. Matter of fed. concern?
i. Actually disputed/substantial?
ii. Affect balance b/w fed. & st.?
Supplemental Jurisdiction (SJ) – §1367 1)
Does §1367(a) grant SJ?
a. YES if claim arises from same
case/controversy; or, “fed hook”
b. Unless (b) 
2) §1367(b) takes away SJ = NO SJ (only in
diversity cases):
a. π claim against party joined by R:14,
19, 24 – 20, 23)
b. Claims by R:19 compulsory πs
c. Claims by R:24 intervener πs
Removal – §1441, 1446, 1447
1) All ∆s must agree
2) ∆ cannot remove if it's a diversity claim in
state of citizenship (needs SMJ) 3) ∆ 30 days
to remove, runs when served
4) Lawsuit is removed to embracing fed. ct.
VENUE
Venue in Div/non-Div cases – §1391
1) where any ∆ lives if all ∆ in same state
2) where substantial part of event occurred
3) FALLBACK: where any ∆ is subj. to PJ
(div); or where any ∆ can be found (non)
4) “residency”
a. individual: domicile
b. corporation: wherever subj. to ct. PJ
Transfer – where there is PJ over ∆ §1404 –
initial venue is proper
1) Take transferor (ct. #1) ct.’s laws, choice of law
travels w/ proper Atlantic Marine
2) Discretionary: convenience of parties,
witnesses, and interest of justice
§1406 –initial venue is improper/no PJ
1) Take transferee (ct. #2) ct.’s laws
2) Only transfer where PJ/app. venue
3) Ct. can dismiss/transfer to proper
Forum Non Conveniens
1) Properly filed but the ct. dismiss b/c more
appropriate venue (convenience)
a. State to other state, US to foreign
ERIE DOCTRINE
Fed. ct. should apply state. substantive law
1) Conflict between st. and fed. law?
2) Valid fed. rule on point? (Hanna 2, REA)
a. YES: use fed. procedural law
fed, apply state (Hanna 1, RDA)
a. Twin Aims: forum shopping &
inequity b/c of citizenship (Erie)
b. State law is bound up w/ rights obligations
of parties = substantive
c. Constitutional interest? (Byrd)
PLEADINGS Complaint –
RULE 8
1) Grounds for SMJ
2) Short/Plain statement of the claim
a. Twiqbal: π must plead facts (allege)
supporting a plausible claim;
b. Factual allegations as true; fraud or mistake
allegations needs more facts
c. Judge uses judicial xp, common sense
3) Demand for relief sought
Response – RULE 12
Within 21d, unless waived = 60d; 90d (R4)
Methods of Response
1) Motion to Dismiss (RULE 12(B))
a. Defenses
12(b)(1) Lack of SMJ - never waived
(b)(2) Lack of PJ
(b)(3) Improper Venue
(b)(4) Insufficient process - prob w/ doc
(b)(5) Insufficient service of process-not
properly served
(b)(6) Failure to state a claim
(b)(7) Failure to join party under RULE 19
 NOTE: 2-5 must be in first response or waived; 1,
6-7 anytime
b. Answer
i. Must respond to claim
1. Admit, deny (explicitly stated)
2. Lack of knowledge = denial
3. Failure to deny = admission ii.
Affirmative defenses (RULE 8): raise
new matter or inject new fact (SOL,
RJ/CE)
1. Must plead or waived
SLIME – Rule 11: sanctions; signed
pleadings (attorney screws up: stupidity,
laziness, ignorance, malice, evasion) Amended
Pleadings – RULE 15
1) π can amend once before ∆ response
2) ∆ can amend once w/in 21d of answer
3) If no right to amend, ct. may freely give
4) Relation Back: amend after SOL run, “same
T/O” test, proper ∆ should have known
(Krupski v. Costa Crociere)
JOINDER
(assess SMJ for every claim filed in fed ct!) Proper
Parties
Permissive – RULE 20(A) – IPJ/SMJ/V?
1) Parties joined as πs/∆s if
2) Assert right to relief that arises from same T/O
or series of T/O
3) At least one common Q of law/fact  NOTE:
misjoinder ≠ dismissal; ct. should sever (R21)
Compulsory/Necessary – RULE 19
Necessary/indispensable/required party? 1) No
complete relief w/o absentee
2) Absentee interest would be impaired
3) Absentee interest would be subj. to
multiple/inconsistent obligations
 NOTE: joint tortfeasors not necessary!
Joinder feasible?
1) IPJ ok? Retain SMJ? (check DivJ)
a. YES: party must be joined
2) NO: does court dismiss/proceed?
a. Prejudicial? Adequate judgment? Most
imp’t: will π have remedy?
3) If party determined indispensable and can’t be
joined, then court dismiss (rare)
3rdP Practice Impleader – RULE 14 – --- SMJ or
SJ
1) 3P∆ may be liable for all/part orig. π’s claim
against orig. ∆, file complaint
2) Timing: w/in 14d, or need ct.’s permit
3) SJ governs for 3P∆ to 3pπ (orig ∆)
4) π against 3P∆? NO SJ (R14 not ok!), needs
SMJ (“same T/O” as orig. claim) Intervention
– RULE 24
1) Party assert or defend claim (check SMJ)
2) Motion must be timely = not disruptive
3) Right: absentee legal interest impaired if not
joined; adequate rep?
4) Permissive: absentee claim/defense has at
least 1 common Q of law/fact π Plaintiff
Claim Joinder Permissive Claim Joinder –
RULE 18
1) π can join all the claims (SMJ)
∆ Defendant Claim Joinder
Counter-Claim – RULE 13(A), (B) – SJ?
1) Compulsory – 13(a)
a. Against opposing party, no new party
b. Same T/O as π’s claim
c. Must assert or waive
2) Permissive – 13(b) – IPJ/SMJ/SJ?
a. state any claim against opposing party
b. R18 only works for party once they
successfully add claim via R13(a)/(b) Cross-
claim – RULE 13(G) - permissive 1) Against co-
party (same side of “v.”)
2) Same T/O as underlying dispute
Interpleader – RULE 22, §1335
Stakeholder force all potential claimants into single
case, party may file defensive if sued first (through
R13 counter-claim)
1) Rule (narrow): complete div, no deposit, status
quo IPJ/SMJ/V, rare injunction
2) §1335 (broad): minimal div, need deposit stake;
AIC>$500, §1397 for V, §2361 SOP, IPJ, and
injunction possible
Class Action – RULE 23 Pre-reqs for
certification:
1) Numerosity
2) Commonality
3) Typicality 4) Adequacy Types (need at least
one):
1) Prejudice: mandatory, NO notice,
NO opt-out; incompatible standards for
∆, limited funds (small pool of $)
2) Injunction: mandatory, NO notice,
NO opt-out; decl. relief benefits all πs
3) Damages: notice, opt-out; common Q
predominate individual questions; class is
superior method to resolve suit
a. Notice: class rep must give notice to all
members reasonably ID-able
b. SMJ: look @ rep for AIC, citizenship
PRE-TRIAL ADJUDICATION Voluntary
Dismissal – RULE 41(A) 1) Dismissal signed by
all parties 2) Ct. order (discretionary)
3) π dismiss w/o prejudice once by notice of dismiss
before ∆ respond (answer, MSJ) Involuntary
Dismissal – RULE 41(B) w/ prejudice if ct. decides;
“on the merits” unless lack IPJ/SMJ, improper V,
failed to join necessary party (R19)  happens if π
fails to move forward/prosecute; ∆ can MTD RULE
12(B)(6) Dismissal
1) Ct. does not look at evidence, only face
a. Claim where ct. might grant relief?
b. Legally sufficient claim?
Summary Judgment – RULE 56
1) Ct. looks at evidence
2) Moving party must show:
a. No dispute of material issue of facts
b. and entitled to JMOL
3) Evidence provided by parties
a. Evidence acquired under oath
b. Not include pleadings
4) Timing: any time except 30d after close of
discovery
Discovery
A.
Scope of Discovery: FRCP26(b1)- relevant info to
claim/defense of party; (Cormack) "admissible"
not the standard.
Proportionality. No fishing expeditions.
R26(c), Protective Orders: Target of discovery can
seek based on relevance or other concerns. Needs
good cause to protect from undue
burden/embarrassment etc.
Applicable when discovery goes beyond scope.
Remedies:
1. Keep info confidential
2. Narrow Scope of req
3. permit responding party to produce specific
info
4. deny discovery info entirely
5. order costs shared or shifted to requesting
party
B. Limits on Scope of Discovery
Burden/proportionality vs needs for case: fact
specific and case-by-case.
Google example of limiting discovery through
rule 26(b)2(C)(i). Courts can condition
discovery on expense allocation.
FRCP26(b)2(B)-- Protects parties against
having to produce ESI they deem to be "not
reasonably accessible." Courts consider: 1. is
the info relevant 2. would it be burdensome to
produce it? Zubulake
FRCP26(b)(1): all relevant non-privileged
materials are discoverable.
1. Attorney Client Privilege
a. between client and attorney
b. intended to be kept confidential
c. for the purposes of obtaining/providing legal
assistance
-applies to corporate entity not the employee
FRCP26(b)3(A)+(B)-Hickman
1. Applies to any material prepared for
litigation or trial.
a. to assert priv and work prod must:
1. expressly make claim
2. describe nature of docs not
produced/disclosed in manner that doesnt
reveal info that is priv -enable other parties to
access claim FRCP25b(5)
b. rules notes in "anticipation of litigation"---
majority approach is "because of litigation"
doesnt apply to subject matter of document but
reason for preparing it.
c. "Substantial need"=inability to obtain
equivalent info without undue hardship