Civ Pro Final Outline (2) PDF

Personal Jurisdiction: Can the P sue the D in a certain state? Have to have power over the parties - If we do not have a contact = NO PJ (all fairness in the world will not make up for lack of contact) - State where P sues is called: the forum - To see if have PJ, process is same whe...

Personal Jurisdiction: Can the P sue the D in a certain state? Have to have power over the parties - If we do not have a contact = NO PJ (all fairness in the world will not make up for lack of contact) - State where P sues is called: the forum - To see if have PJ, process is same whether state or federal court: court must have power over 1. Power over the D’s person or 2. Power over the D’s property - (these are jurisdictional predicates) - 3 types of PJ: in personam, in rem, and quasi in rem (QIR) - 1. in personam: court’s power is over the D’s person (himself); the D has some connection with the forum - 2&3: in rem and quasi in rem: control over D property; court doesn’t have power over D person but D has property in the forum; court can exercise jurisdiction over that property - In personam: general or specifc (concept of relatedness) - General: D can be sued in forum from a claim that arose anywhere in the world - Specific: D is being sued for a claim that is connected to what the D has done in the forum state; contacts rise out of the claim - To know courts have PJ of any of 3 types: - Due process clauses define how far a court in the forum can go in exercising PJ in any of these 3 types - (Due Process Circle); has to fall within circle then court’s judgement will be constitutionally valid) which means that it will be entitled to enforcement in other states as well under the Full Faith and Credit Clause - if case falls within due process circle doesn’t mean court has PJ-> another step: STATUTORY analysis (long arm statute) - if outside due process circle; court’s judgement is void and no PJ so not entitled to enforcement anywhere - 1st STEP: Statutory: in forum state, they must have a statute that allows for the exercise of PJ; state law must grants the courts the exercise of PJ through statutes - THIS IS FIRST STEP ON EXAM: is there a state statute in this forum state that allows PJ in this case? If no then no PJ even if within due process circle - 2nd STEP: Constitutional: whether PJ comports within due process? Does it fall within due process circle? - Pennoyer gives us 4 traditional basis of in personam: - (1) D is served with process while present in the forum (tag jurisdiction; in forum state, tag you’re it) this gives general jurisdiction - (2) D’s agent is served with process in the forum (can be general or specifc)  - (3) D is domiciled in the forum (domicile in forum gives general jurisdiction); you can be sued in this forum for a claim that arose out of anywhere - (4) D consents to PJ; since PJ is personal right you can waive it to general or specific jurisdiction (why we don’t worry about P bc they filed suit in the forum so they consented to PJ in the forum; but have to get PJ over the D) - Hess vs Pawloski - Expands Pennoyer by implied consent; by driving into a forum state we can infer that you consent to jurisdiction —- when driving across state lines you consent to specifc PJ and appoint a state officer as your agent for service of process - Penn citizen drove car to Mass and involved in car wreck in Mass, P was citizen in Mass and wanted to sue driver in Mass but D had already left the state; so couldn’t serve process on D so Supreme Court upheld jurisdiction in Mass under Non-resident Motorist Act (every state has one in U.S.) -> statute that says when nonresident drives vehicle into our commonwealth then you are consenting to specific PJ - a case arising out of your operation of that vehicle; just by driving in you are appointing Mass agent of vehicles to be your agent for serving of process - Int Shoe: - 3 steps: to see if have relevant contact: - Ask self if there’s relevant contact between D and forum? - Look at 2 I things: (1) purposeful availment (this contact between the D and teh forum must result from the D’s reaching out to the forum; can’t be unilateral act of 3rd party). (2) foreseeability (not enough to foresee that the product would get there; has to be foreseeable that D could get sued there) - Contact and purposeful availment: talking about the stream of commerce problem area: stream of commerce: no law for when constitutes purposeful availment for contact (make both arguments as if stream of commerce might show up) (S.O.C: have to have it in the stream and direct it or place it in stream and know where it’s going) - we can have in personam jurisdiction and PJ if D has such minimum contacts with the forum so that exercise of jurisdiction doesn’t offend traditional notion of fair play and substantial justice - Minimum contact test: test if D is not present in the forum - Hanson v Dankla: - Contacts must result from D’s purposeful availment to establish minimum contacts - Volkswagen:  - foreseeability is a factor - not that a car or product could end up in another state then where it’s sold but must be foreseeable that you could get sued in that forum - TEST FOR CONTACT: if have relevant contact between D and forum: 1. D must purposefully avail of the forum 2. It must be foreseeable that the D could get sued there; D doesn’t have to set foot in the forum for this to happen - Contact analysis and fairness, fair play substantial justice (reasonableness analysis) - assess contact first (must have relevant contact between the D and the forum before you even consider whether jurisdiction is fair or reasonable) - Ford: - 2 tests: “Arise out of” is seperate from “relate to”. Which test is applied depends on the level of activity the D has in the forum. - “arise out of”: requires that the harm to the P was caused by the D’s contact with the forum. MUST be causation. (If D has very little contact with forum). - “Relate to”: doesn’t require causation; EASIER. Requires some relationship between the harm to the P and the D’s contact with the forum (if D has a lot of contact (continuous and systematic) ties with the forum). - Emphasizes considerations of fairness as supporting jurisdiction FRAMEWORK OF PJ: - Address whether a traditional basis applies: is PJ constitutional? EX: was the D served with process while present in the forum? If yes, talk about split authority in Burnham case (¾ justices said that the traditional bases are good by themselves so you don’t have to do Shoe analysis). If 4 other justices said that the traditional bases by themselves mean nothing then you must do Shoe analysis (must always do shoe according to those 4) - statute comes first; ask if there’s a state statute in this forum that allows PJ in this case? **All states have a long arm statute (acts like a non-resident motorist act) and gives you specific PJ over a non-resident - long arm statute: 1. California type (says we have statutory jurisdiction to the full extent of the constitution; so do constitutional analysis) 2. Laundry list long arm (list various activities that the D can do in the forum that will subject it to specific PJ; if the D does any of those and the P’s claim arises from that then the statute will grant specific PJ) - 1. Is there relevant contact? - 2. Relatedness: does the P’s claim arise out of OR relate to the D’s contact with the forum? APPLY FORD - 1. If D has little contact with forum: arise out of test: - requires causation (D’s contact must have caused the harm to the P)  - 2. If D has continuous and systematic contact with the forum: show that P’s claim relates to D’s contact (FORD) - If answer to relatedness question is NO: - get general jurisdiction - when you’re at home: state where you’re domiciled - over a human being if person is served with process while in the forum. - Over a corp: - in the states where the corp is at home (state of incorporation OR the state of its principal place of business (PPB) potentially 2 diff states - by consent: if state registration statute says if you come in here and do business you register you are consenting to general jurisdiction - If relatedness is met: talking about specific jurisdiction because (P’s claim arises out of or relates to D’s contact with forum) - 3. With ONLY specific jurisdiction: assess whether jurisdiction is fair or reasonable - 5 fairness factors: (VOLKSWAGEN) - 1. Burden on the D: D must show that the forum is so gravely inconvenient that she’s at a severe disadvantage in the case (hard to show because of $$ of both parties does not mean that much) - 2. Forum state’s interest (FORD) (look for states interests on exam) - 3. P’s interest (Ford) (P was injured badly in FORD case so very difficult for him to go somewhere else to sue Ford) - 4. Legal system’s interest in efficiency (whether the forum is a confident place for the litigation (FORD) - 5. Shared substantive policies of the states (rarely shows up) (S. Court hasn’t defined it yet) - Come to PJ question: walk through framework: apply facts to each one. Find facts that are relevant for purposeful availment, foreseeability, relatedness, and the fairness factors. - **Even if case ends up in federal court in the forum state, the analysis for PJ is the exact same as state court VENUE 28 USC S 1391: 3 options for “laying venue” where they reside (b)(1)- in the state where the D is domiciled. (only avail. If all D’s are reside in same state) (b)(2)- where the bad thing (or a subst. part of bad thing) happened (b)(3)- district where at least 1 D is subj to PJ. (only use b3 if the first 2 aren’t options) Residency (c) (c)(1) natural persons incl legal alien= domicile (c)(2)- entities (corps, llcs, etc)–it can be any district that has PJ w respect to the suit in Q) *Canbe but not necessarily is an entities PPB←common trick Q* (c)(3) Corps in states w multi. districts= the district where the corp has the most contacts PvD-Sue where the D is domiciled or where the bad thing happened P v 2+D’s-you can only sue where D resides if all D’s reside in the same state. If they all live in diff states then you have to sue where the bad thing happened 1406-If venue improper, then dismiss or transfer 28 USC 1404- Forum Transfer When more than 1 good venue, but the gravity of the case (witnesses, etc) makes it clear that there’s a better venue option, allowing a transfer. -Only works to transfer from 1 Fed. Dist to another, not from state to fed or vice versa Forum Non-Conviens- Inconvenient Forum -Not a tech. a transfer. Its a dismissal which is then taken up in better forum -dismissed due to Priv. Factors (where witnesses/evidence is, cost to attend, etc) & Pub. Factors (local interest in a local matter, foreign court, court congestion, etc) PJ- Due Process 14th Amendment General JDX-3 Step Framework 1. Traditional Bases- domicile, physical presence (if D is “tagged” w service while present in forum state, consent & waiver)←PJ can be waived, but SMJ CANT BE! Burnham- good example of “tag” jurisdiction Express consent: Forum Selection Clauses Implied Consent: ex: non-resident motorist laws Consent by Appearance: “gen appearance” to argue merits of the case=consent to pj; exception for a “special appearance” just to argue against PJ Consent by Corp. Registration: Mallory says courts consent to Gen JDX by condition of doing registration for business in their state 2. Long Arm Statute- Varies, but can never require less than min. Contacts. To do so would be unconstitutional 3. “Minimum Contacts”- “Int. Shoe” 1. Gen. Jdx= D is “at home”” in the forum state (lawsuit may be unrelated to D’s contacts w the FS). For corps, it is their state of incorp & PPB (“nerve center” DCC Test). Can be sued for any claim in this state  “At home”= “contacts are so substantial that they’re at home”/ “continuous & systematic” Goodyear- no gen. PJ for foreign subsidiary of US corp if no “cont & sys” contacts w FS Daimler-no Gen. PJ if no “cont & sys” contacts in FS 2. Specific JDX= lawsuit arises out of or is related to the D’s specific contacts w the FS a. 1. Purposeful availment; 2. Foreseeability & reasonableness; 3. Relatedness 4. Fairness (“fair play & substantial justice”) Burnham- good example of “tag” jurisdiction Purposeful Availment 1. Phys presence in the forum 2. Targeting the forum & “stream of commerce” cases 3. Intentional Tort cases (*look for defamation on exam) and the “Effects Test”- Calder v. Jones - purposeful availment if D commits an int. harm expressly aimed at the FS & knew that the “brunt of the harm” would be felt by the P in the FS 4. Internet-based defendants (Zippo Sliding from Repeated-interactive-passive) Shoe- “continuous & systematic” min. Contacts Denckla- est. “purposeful availment” VW- foreseeability/placing into “stream of commerce” alone not enough if no min contacts. Must have targeted the forum Think about the word Purposeful- D made some sort of intentional act. Not random or chance -A D purposefully avails himself to the benefits of the forum state (safety, roads, police, economy, etc) anytime he voluntarily becomes phys present in the forum state - Burnham - A D can purposefully avail himself to the benefits of the FS by business activities (offices, stores, employees, etc). HOWEVER, must have spec. targeted the FS- not enough to simply predict that D’s goods might reach the FS Stream of Commerce Nicastro -Not enough that UK-based metal shearing machine ended up in NJ. On exam- look for “middlemen/distributors” → oftentimes the product creator is not actually. targeting the FS- the middleman is Asahi Split Decision/Viewpt ○ Brennan’s View: if you place a product into Stream of Comm. + Knowledge/Awareness of where it’s going to go= sufficient Min. Contacts= Yes to PJ ○ O’Connor’s View: if you place in stream of commerce+”give it a push” (ie direct it to the forum state)=sufficient min. Contacts with the forum “Push” Ex =direct ads to that spec. Market or participate in trade show there 2. Foreseeability & Reasonableness- WW Volkswagen- Q is not whether it’s foreseeable that the product can end up in the FS,its whether the business activities make it foreseeable that they could be haled into court in the FS. No one purposefully availed or targeted Oklahoma 3. Relatedness- “arise out of or relate to”- all the actions that gave rise to the FS. Bristol-Myers Squibb- there must be a direct connection b/t the D’s activities in the FS & the P’s claims made in the action. If we have a lawsuit w a lot of diff P’s we need to look at each P-can’t just join in bc there are some P’s who already have PJ in the claim. 4. Fairness- can’t “offend traditional notions of fair play & substantial justice” WW VW Fairness Factors: 1. The burden on the D, 2. The interests of the FS; 3. The P’s interest in obtaining relief; 4. Interstate jud. System’s interest in efficient resolution of controversies & 5. The shared interest of the several states Asahi- has not purposefully availed themselves to the FS. Did not spec. Target the FS Notice, Service of Process, and (Opportunity To Be Heard?): Due Process requires the court to have PJ over the D but it ALSO requires that the D be given notice of the lawsuit and an opportunity to be heard 3 sections: service of process, the constitutional standard for notice, and the opportunity to be heard - 1. Service of Process: (have to respond within 21 days after by motion or by an answer) - governed in Federal Court by Federal Rule of Civ Pro 4 (generally a right answer unlike PJ) - this is the way we give notice to the D in most lawsuits (when talking about giving notice to the D= serving process of D) - 6 things need to know about Rule 4 (Rule 4: about formal service): - 1. Process = a summons and a copy of the complaint (this is what’s given when serving someone with process) - summons: official court notice of suit (shows government power over the D) - copy of complaint: tells D what claims are against her - 2. Service can be made by any non-party who is at least age 18 (Rule 4(c)2) - in federal court cases, service doesn’t have to be made by an officer; in some state courts it has to be by an officer - 3. How do we serve an individual (Rule 4(e)) - Rule 4(e)(2) gives you 3 choices to serve process on D - 1. Personal service (can be done anywhere; just walk up to D and give it to them) - 2. Substituted service (not serving process directly on D): can ONLY be done at D’s dwelling or usual abode; must  serve someone of suitable age and discretion, who resides there - 3. Serve the D’s agent (D could’ve appointed someone as agent by contract or by operation of law) - Rule 4(e)(1) is provision to Rule 4(e)(2) that allows you to use methods of service that are permitted under state law, either the state where this Federal court sits or the state where the service is effected (get to use certified mail as notice service of process) - 4. How do we serve process on a business (CORP, LLC, partnership): Rule 4(h)(1) says that we can serve an officer or managing or general agent —- serve process on someone with sufficient responsibility that we would expect that person to transmit the important persons - Rule 4(e)(1) applies here too - 5. Waiver of service (Rule 4(d)): NOT serviced by mail; WAIVER by mail-> P mails to the D, process and 2 copies of a waiver form, they get mailed regular first class mail. Include a self addressed stamped envelope, if the D signs the waiver form and mails it back within 30 days, D has waived formal service of process. - Cheaper for P and D doesn’t waive any defenses, just waiving formal service of process, which allows D to have longer to reply with their defensive response (60 days of the date P mailed it to you) - if D doesn’t return waiver form and doesn’t have a good excuse for that then the D must pay the cost of service - 6. Geographic limitation (Rule 4(k)(1)(A)): - says that we can serve process throughout the state in which the Federal court sits (ex: federal court in San Diego, can serve process on somebody anywhere in California because it’s within the state) - we can serve process outside the forum if a state court could do so as well - under this rule Federal courts have chosen to limit their exercise of pJ to that of the states - so a federal court in CA can only exercise jurisdiction to somebody outside of CA and can only serve process outside of CA if a CA state court could have done so. -> This why we look at PJ to the long arm statutes  of the state, the jurisdictional statutes of the state. - Long arm statutes, jurisdictional statutes of the state: - can serve process outside the state in which the federal court sits only if the state courts in that state could have done so as well - Constitutional standard for notice: - have to make sure that the notice we gave complies with due process with constitutional requirements - constitutional requirement: comes from Mullen vs. Central Hanover Bank (Mullen says that due process requires that notice must be reasonably calculated under all the circumstances to apprise the party of the proceeding) - Can still be constitutionally fine even if the D did not actually hear about (EX: if substitute serve someone’s wife and the wife forgets to give it to D) - if it becomes clear to P that D did not hear about it, P might have to try some other means of giving notice - publication notice is last resort; if personal, substitutive, or agent is available then have to do that - Opportunity to be Heard: - this is not much of a problem because summons and copy of complaint inform us of the claim against us and in the summons the court says what we have to do and when to avoid default - usually comes up in commercial transactions Subject Matter Jurisidiction: (1)FEDERAL QUESTION (2)DIVERSITY (3)SUPPLEMENTAL JURISDICTION: (look at white board pic) - Mandatory Restriction on Diversity on Diversity Claims (“Repo”): - Where SMJ over the hook claim is founded solely on diversity supplemental jurisdiction does NOT exist over these 6 categories of claims if exercising supplemental jurisdiction is inconsistent with requirements of diversity: 6 “Repo” Claims under 1367(b): (these claims are only problematic is the “hook” claim is based solely on diversity: - 1. Claim by a plaintiff against someone joined under Rule 14 (third-par ty defendant) - 2. Claim by a plaintiff against someone joined under Rule 19 (additional defendant, required joinder) - 3. Claim by a plaintiff against someone joined under Rule 20 (additional defendant, permissive joinder)  - 4. Claim by a plaintiff against someone joined under Rule 24 (inter venor) - 5. Claim by a plaintiff who is proposed to be joined under Rule 19 (plaintiff is using - Rule 19, required joinder, to enter the lawsuit) 6. Claim by a plaintiff who proposes to inter vene under Rule 24 (plaintiff is using Rule 24, inter vention, to enter the lawsuit) - Discretion to Decline Supp. Juris: 1367(c) - The district cour ts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— - (1)the claim raises a novel or complex issue of State law - (2)the claim substantially predominates over the claim or claims over which the district court has original jurisdiction (See Szendrey-Ramos (p.163)) “Federal tail on a state-law dog” - (3)the district cour t has dismissed all claims over which it has original jurisdiction, or - (4)in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” - RECAP: For Supp. Juris to exist, must clear 3 hurdles in 1367: - 1. Grant of Supp Juris in 1367(a) (the Juris hook claim) NDSLC must be “so related” to the hook claim (transactional test, etc) - 2. Repo: the mandatory restrictions in 1367(b) (these restrictions only apply when the “hook” is based solely on diversity) - 3. Court has discretion to decline the exercise of Supp Juris in certain situations found in 1367(c) (4)REMOVAL: KEY STATUTES: 1. 1441: what/who/where 2. 1446: how 3. 1447: what happens after removal - 1441: what cases can be removed: - general removal rule: “if case could’ve been filed in Federal Court (because SMJ exists over the entire case) then the case can be removed - well pleaded complaint rule applies - EXCEPTIONS (3):  - 1. Statutory Non Removal (1441a): “except as otherwise expressly provided by act of congress” - 2. Forum D Rule (1441b2): only applies when diversity is the sole basis of removal, prohibits removal when one of the D is a citizen of the form. Rationale: a D who is a citizen of the forum state doesn’t face out of state bias and therefore doesnt need the “neutral” Fed Court - 3. Joinder of Fed Law Claims and State Law Claims (1441c): if it includes (A) a claim arising under constitution and (B) a claim not with in original Supp Juris or a claim that’s been made non-removal by statute THEN entire action may by removed if the action would be removal without (B) - who can remove it: the D - where is it removed: removed from state court to federal court - 1446: HOW: only D can remove it but it has to come from P’s claim or it does not have federal question jurisdiction - to remove has to have: federal Q OR diversity but cannot remove solely on diversity if D is citizen of the forum. REMOVAL PROCEDURE: - D files a notice of removal in appropriate federal district court (1446a) - Notice of Removal contains: (1) “a short and plain statement of the ground for removal” (explain why there is SMJ over all claims, why removal is timely, etc) (2) is signed “pursuant to Rule 11” (Rule 11: you can get sanctions if lie about any part of your pleading/motion) (3) attached to the notice is the record from the state court proceeding - after filing notice in federal court, D “promptly” gives a copy of the notice to the P and files a copy with the state court (1446d) - the state court shall proceed no further unless and until the case is remanded (1446d) TIME LIMITS ON REMOVAL: - 30 day clock - D has 30 days from time of being served with the state court complaint to file the notice of removal in federal court (1446b1) - Multiple D’s, multiple clocks (1446b2B): - if D1 doesnt remove within 30 days but D2 subsequently timely removes, D1 can “consent” to D2’s removal even though D1 missed their own 30 day window and the entire removal will be timely  - Additional 1 year time limit on diversity cases - only applies in diversity removals - D has to beat 2 clocks: usually 30 day clock and 1 year clock that runs from the date the lawsuit was commenced in state court - bad faith exception: 1 year clock can be extended if P acts in bad faith in order to prevent a D from removing the action (1446c1) - “Bad faith exists where the plaintiff has no intention of pursuing judgment against the non-diverse defendant and instead joins and keeps that defendant in the case for the purpose of thwarting removal.” POST REMOVAL PROCEDURE: - P can challenge removal by filing a motion to remand in the federal district court (1447c) - 2 general grounds for remand, with different time limits (1447c) - 1. Lack of SMJ - no time limit for filing motion to remand - 2. Non-jurisdictional defect (procedural defect) - motion to remand must be filed within 30 days of filing notice of removal (failure to file timely notice of removal and violation of forum D rule) - if court grants P’s motion to remand, that decision typically cannot be appealed (1447d) - an order denying a motion to remand, however, may be reviewed on appeal (P usually has to wait until after final judgement to appeal) - possible sanction for improper removal: when P successfully moves to remand, the court may (optional) require the defendant to pay the plaintiff ’s attorney fees and other costs incurred as a result of the improper removal. (1447c) - Standard: Did the removing par ty lack an objectively reasonable basis for removal? STATE LAW IN FEDERAL COURTS: ERIE AND CHOICE OF LAW: Erie doctrine address when federal court applies state law Erie questions rises when courts are sitting in diversity or exercising over state law claims — Erie: what law do we apply to this state law claim? (BASIC FORM OF ERIE) Rules of Decision Act, 28 USC 1652: - “The laws of the several states, except where the Constitution or Acts of Congress otherwise require or provide, shall be regarded as rules of decisions in civil actions in the courts of the United States, in cases where they apply.” - “laws of the several states” = state statutes but not state judge-made law(state common law)  - As long as there was no state statute on point, federal courts were free to make their own law in diversity cases Erie Railroad v Tompkins: - in diversity cases, a federal court applies state substantive law (the what) and federal procedural law (the how) - state substantive law also applies to state-law claims head under Supp Juris - Erie’s lingering question: when is an issue “substantive” and when is an issue “procedural”? -> but more instances where a state “procedural” rule applies in federal court. - Post-Erie Decisions: - Guaranty Trust Co v York: - outcome-determinative test - issue dealt with statutory - Byrd v Blue Ridge Elect. Coop - Hanna v Pumer - Part 1: (Modified Outcome Determinative Test) would applying the federal practice likely lead to forum shopping or inequitable administration of laws? (Forward-looking test) - Part 2: (Preemption Analysis) when a federal statute or FRCP applies, the federal court must apply the federal statute/rule over a conflicting state law - 2 exceptions: (1) the FRCP violates the rules enabling act or the constitution (has yet to occur) (2) the federal statute violates the constitution - Federal Statute/FRCP vs State Law (Preemption): Rules Enabling Act: (the Supreme Court has the power to prescribe general rules of practice and procedure and rules of evidence for cases in the U.S. district courts and courts of appeals - PREEMPTION ANALYSIS CHART ERIE Substantive vs Procedural Step 1: You need a Fed Ct adjudicating a state law claim to determine whether Erie is an issue, typ. P might want Fed law applied to some issue & the D might want state law applied to it Step 2: Whether the decision b/t state & fed law is within the scope of Erie. Hanna v Plumer-when there is a conflict b/t state law & fed rules of civ proc in a diversity case such that both the state law and the FRCP cannot coexist & be applied simultaneously, these cases are outside the scope→ these cases are governed by the Hanna v Plumer line of cases (FRCP applies→ not state law). The maj distinction b/t Hanna & Erie is the source of the fed law. If the source of the law is statutory (gen FRCP) then we apply Hanna. However, if the source of the law is based more on Fed judicial precedent, then it is within the scope of Erie and we apply an Erie Analysis Hanna - if we have a direct conflict b/t state law and FRCP in a diversity case in Fed Ct such that the state law cannot coexist and be applied at the same time, then the analysis is outside of Erie (common law precedent-based) and Hanna says we apply the FRCP as long as its constitutional and complies with the Rules Enabling Act. If the source of the Fed law is statutory (FRCP) then apply Hanna and as long as its valid it applies But if that source of the Fed law is based on federal judicial precedent- then do an Erie analysis Step 3: Apply the Erie Doctrine: apply the state law to substantive issues & apply the fed law to procedural issues 2 Options here: 1. SC has est that the state law is substantive (1. Elements of claim/defense; 2. Statutes of limitations 3. Rules for tolling statutes of limitations (how the clock works-delays, pauses, when it starts, etc); 4. C-O-L Rules)←if any of these are disputed ct will apply state law, not fed law 2. On the other hand, if it is less clear there are these 3 approaches the SC has used: a. Outcome Determination Test-if the decision to apply is outcome determinative then apply state law; b. Forum Shopping Discouragement-if applying fed law would open up floodgates of lit. then apply state law; & c. Balance of Fed/State Interests (Byrd)- does the Fed interest override state interest (as in Byrd w jury trial option) ^^ If you see this on an essay, briefly discuss all 3 approaches and then just come to a logical conclusion If multiple states have a stake in the lawsuit, which state law do you apply? C-O-L Rules. A Fed Ct in diversity must apply the C-O-L Rules of the state in which in sits. Then you find the COL Rules in that state and that will tell you what state’s law controls. Step 4: Find the original ct. Apply those COL Rules and it will tell you which state’s law controls PLEADING (FRCP 12(b)(6)- motion to dismiss for failure to state a claim upon which relief can be granted  When considering a Rule12b6 motion, the ct assumes all of the allegations in the complaint are true FRCP 8(a)- A pleading must contain: 1. A short & plain statement of the grounds, 2. short /plain statement showing the pleader is entitled to relief 3. A demand for the relief sought’ Twiqbal Two-Step: To survive a 12b6 motion, complaint must contain enough facts (that allow for the reasonable inference of liability) to state a claim that is plausible on its face. Step 1: Ignore Conclusions Step 2: Accept the remaining facts as true & determine whether they plausibly give rise to entitlement of relief FRCP 9(b)- if fraud, state w particularity (who, what, when, where, etc) Responding to the Complaint Rule 11- Sanctions- either via Cts own initiative “sua sponte” w an (Order to Show Cause) via Rule 11(c)(2) Or, if the other party tries to sanction the other, there’s a 21 day period where they are free to correct the issue (under Rule 11(c)(2) Rule 12(b)- Pre Answer Motion (here you can assert defenses of lack of SMJ, PJ, venue, process and failure to state a claim). 12(b)(c) allows for a “judgment on the pleadings” Rule 8(c)- in response to a pleading, a party must state any affirmative defense Amendments Rule 15(a)-3 ways to amend complaint: a1. As matter of course w/in 21 days a2. Opponent’s written consent a3. W leave of court (if there was “bad faith” or “prejudice”) Rule 15(c)- When Changing a Party- 1. must relate back to the “conduct, transaction, or occurrence” set out in the original pleading 2. Within 90 days of filing orig. Complaint the new party “received such notice of the action that it will not be prejudicedin defending on the merits” 3. Within 90 days of filing orig complaint, the new party knew or should have known that they;d have an action brought against them but or a mistake concerning the proper party’s ID Long Arm Statute - in fact pattern will say long arm statute - first step to PJ (is the statutory analysis) - is traditional PJ - Venue Ch 4: state law in federal courts Pleadings MEETING: - Supplemental jurisdiction? Re-pro revision? - give basic rule for each question; state the rule then apply the rule then conclusion; don’t have to follow IRAC or TRAC - Eerie and Starry? - Good year and Dymler (KNOW DYMLER RULE) - Pleadings - probability into plausibility - in order to know if case is removal need to know SMJ rules - choice of law