CivPro_Outline_MAP.docx

[I. Origins of Court Authority 3](#origins-of-court-authority) [Pleadings & Motions 3](#pleadings-motions) [I. Commencing a Civil Action 3](#commencing-a-civil-action) [II. Pleadings that State a Claim 3](#pleadings-that-state-a-claim) [A. List of Pleadings that State a Claim in Rule 7(a) 3](#list-of-pleadings-that-state-a-claim-in-rule-7a) [B. Form of Pleadings in Rule 10 4](#form-of-pleadings-in-rule-10) [C. Substantive Requirements for Pleading that States a Claim 4](#substantive-requirements-for-pleading-that-states-a-claim) [i. Factual Sufficiency of a Claim 4](#factual-sufficiency-of-a-claim) [ii. Legal Sufficiency of a Claim 5](#legal-sufficiency-of-a-claim) [III. Responsive Pleadings 5](#responsive-pleadings) [A. List of Responsive Pleadings in Rule 7(a) 5](#list-of-responsive-pleadings-in-rule-7a) [B. Form of Responsive Pleadings in Rule 10 5](#form-of-responsive-pleadings-in-rule-10) [C. Deadlines for Serving Responsive Pleadings 6](#deadlines-for-serving-responsive-pleadings) [D. Substantive Requirements for Responding to a Pleading 6](#substantive-requirements-for-responding-to-a-pleading) [i. Affirmative Defenses 6](#affirmative-defenses) [ii. Admissions and Denials 7](#admissions-and-denials) [IV. Motions 7](#motions) [A. Form of Motions 7](#form-of-motions) [B. Substantive Requirements for Motions 7](#substantive-requirements-for-motions) [C. Timing and Deadlines for Rule 12 Motions 7](#deadlines-for-rule-12-motions) [D. Defenses that Can be Raised by Pre-Answer Motion 8](#defenses-that-can-be-raised-by-pre-answer-motion) [V. Amended Pleadings 8](#amended-pleadings) [A. Three Ways to Amend 8](#three-ways-to-amend) [i. Amendments as a Matter of Course 8](#amendments-as-a-matter-of-course) [ii. Amendment with Consent 8](#amendment-with-consent) [iii. Amendment with Leave of Court 8](#amendment-with-leave-of-court) [B. Responding to an Amended Pleading 9](#responding-to-an-amended-pleading) [C. Relation Back of Amendments 9](#relation-back-of-amendments) [Personal Jurisdiction 10](#personal-jurisdiction) [I. What is Personal Jurisdiction? 10](#what-is-personal-jurisdiction) [II. Attacking Personal Jurisdiction 10](#attacking-personal-jurisdiction) [A. Direct Attack 10](#direct-attack) [B. Collateral Attack 11](#collateral-attack) [III. Requirements for Personal Jurisdiction 11](#requirements-for-personal-jurisdiction) [A. Authority to Exercise Personal Jurisdiction 11](#authority-to-exercise-personal-jurisdiction) [B. Constitutional Limits 12](#_Toc178108084) [i. General Jurisdiction -- All Purpose Jurisdiction 12](#_Toc178108085) [a. Individuals 12](#_Toc178108086) [b. Corporations 13](#_Toc178108087) [ii. Specific Jurisdiction -- Case Specific Jurisdiction 13](#_Toc178108088) [a. Individuals & Corporations -- Traditional Bases for In Rem Jurisdiction 13](#_Toc178108089) [b. Individuals & Corporations -- Traditional Bases for In Personam Jurisdiction 14](#_Toc178108090) [c. Individuals & Corporations -- Minimum Contacts Analysis for In Personam Jurisdiction 14](#minimum-contacts-analysis-for-in-personam-jurisdiction) [C. Traditional Bases for PJ 14](#_Toc178108092) [i. Domicile 14](#_Toc178108093) [ii. Voluntary Appearance 14](#_Toc178108094) [iii. Agent 14](#_Toc178108095) [iv. Transient Rule 15](#_Toc178108096) [D. Minimum Contacts 15](#minimum-contacts) [a. Quality & Nature of the Contacts -- Purposeful Availment 15](#quality-nature-of-the-contacts-purposeful-availment) [b. Relatedness 16](#relatedness) [c. Reasonableness 16](#reasonableness) Origins of Court Authority ========================== - [American Rule] -- each party must pay their own attorney's fees - Constitution gives Congress the power - Article I sec VIII -- legislative power; Congress has the power to create the inferior courts "The Congress shall have Power... to constitute Tribunals inferior to the Supreme Court." And to create all laws which are considered "necessary and proper" - Article III sec I --Congress gives judicial power to SC and inferior courts "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." - Congress gives Supreme Court the power - 28 USC 2072 -- SC has the power to write the rules FRCP "The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts... and courts of appeal." - Advisory committees - Supreme Court appoints Chief Justice who gives power to Advisory Committee - Advisory committee suggests FRCP rules back to Chief Justice for approval and Congress for adoption Pleadings & Motions {#pleadings-motions.Title} =================== Commencing a Civil Action ========================= - Rule 3 - - A civil action is commenced by filing a complaint with the court - [Claim] = [right of action] + [operative facts] Pleadings that State a Claim ============================ A. List of Pleadings that State a Claim in Rule 7(a) ------------------------------------------------- - Claim is *not* a pleading; claim is written *in* a pleading - [Pleading] -- a complaint filed by the plaintiff - Rule 7(a) only these pleadings are allowed: - \(1) a complaint - \(2) an answer to a complaint - \(3) an answer to a counterclaim designated as a counterclaim - \(4) an answer to a crossclaim - \(5) a third-party complaint - \(6) an answer to a third-party complaint - \(7) if the court orders one, a reply to an answer B. Form of Pleadings in Rule 10 ---------------------------- - Rule 10(a) Caption -- every pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation; *the title of the complaint must name all the parties, the title of the other pleadings may refer generally to the parties after naming the first party on each side* (special requirement for a complaint that does not extend to all subsequent pleadings) - Rule 10(b) Paragraphs -- party must state its claims or defenses in numbered paragraphs C. Substantive Requirements for Pleading that States a Claim --------------------------------------------------------- - Requirements for a pleading that states a claim - Rule 8(a) - Claim for Relief; a pleading that states a claim for relief must contain - 8(a)(1) a short and plain statement for the *grounds for the court's jurisdiction*, unless the court already has jurisdiction, and the claim needs no new jurisdictional support - \*8(a)(2) *a short and plain statement of the claim showing that the pleader is entitled to relief* - 8(a)(3) a *demand for the relief sought*, which may include relief in the alternative or different types of relief - Applies to all claims, not just a complaint ### Factual Sufficiency of a Claim +-----------------+-----------------+-----------------+-----------------+ | Conley | Leatherman | Twombly | Iqbal | +=================+=================+=================+=================+ | Pleader must | 8(a)(2) means | Conclusory | The factual | | give fair | what it says -- | allegations are | allegations | | notice on the | no heightened | not afforded | "nudge the | | grounds of the | pleading | the same | claim from | | claim to the | standard | presumption of | possible or | | court and | | truth as | probable to | | defendant | 9(b) fraud or | factual | plausible" | | | mistake, not up | allegations | | | Pleader does | for judicial | discarded | "Savvy judge" | | not need to | interpretation | | uses "common | | include | | Factual | sense and | | specific | | allegations | judicial | | factual detail | | must show that | experience" to | | -- sufficient | | claim is | determine if | | facts | | "plausible on | claim is | | | | its face" | "plausible on | | | | | its face" or if | | | | | there is a more | | | | | likely | | | | | explanation | | | | | | | | | | Facts support | | | | | either directly | | | | | or by | | | | | reasonable | | | | | inference | | | | | | | | | | Three-step | | | | | analysis for | | | | | evaluation bare | | | | | assertions: | | | | | | | | | | \(1) Court | | | | | must identify | | | | | the ROA and | | | | | its elements | | | | | | | | | | (2) Conclusory | | | | | allegations | | | | | established and | | | | | disregarded | | | | | | | | | | \(3) Factual | | | | | allegations | | | | | compared to | | | | | each element | | | | | of ROA to | | | | | determine if | | | | | plausible | +-----------------+-----------------+-----------------+-----------------+ - Step 2 Examples - Twombly - conclusory claim companies were in a conspiracy but provided no fact so did not stand up against court scrutiny - Iqbal - Bivens action for violations of First Amendment (freedom of speech) and Fifth Amendment (equal protection) said unlawfully detained and harsh conditions of confinement based on race, religion, and nation of origin after 9/11; Claimed Ashcroft and Mueller purposefully adopted these policies, but provided no evidence linking A and M to policies - Step 3 Examples - Twombly - more likely explanation was independent parallel conduct, companies independently make similar business decision given the environment but that does not by itself suggest a conspiracy - Iqbal - more likely explanation was that since 9/11 carried out by 19 al Qaeda and al Qaeda was mostly made up of Arab Muslim men, it makes sense that a disparate impact would be made on that group of people rather than a discriminatorily based policy to target Arab Muslims ii. ### Legal Sufficiency of a Claim - Rule 8(a)(2) explain what Conley and Johnson teach about a pleader's obligations with respect to the legal sufficiency of a claim and how that legal sufficiency can be attacked - Conley and Johnson -- pleaded police department violated his dues process rights under Fourteenth Amendment but did not explicitly state section 1983 in claim. Claim still valid since "fair notice on the grounds of which the claim stands" Responsive Pleadings ==================== A. List of Responsive Pleadings in Rule 7(a) ----------------------------------------- - Rule 7(a) responsive pleadings: - \(2) an answer to a complaint - \(3) an answer to a counterclaim designated as a counterclaim - \(4) an answer to a crossclaim - \(6) an answer to a third-party complaint - \(7) if the court orders one, a reply to an answer B. Form of Responsive Pleadings in Rule 10 --------------------------------------- - Rule 10(a) Caption -- every pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation; *the title of the complaint must name all the parties, the title of the other pleadings may refer generally to the parties after naming the first party on each side* (special requirement for a complaint that does not extend to all subsequent pleadings) - Rule 10(b) Paragraphs -- party must state its claims or defenses in numbered paragraphs C. Deadlines for Serving Responsive Pleadings ------------------------------------------ - Rule 12(a)(1)(A)(i) -- Unless another time is specified by a federal statute, the time for serving a responsive pleading is as follows: in general, a defendant must serve and *answer within* *21 days after being served* with the summons and complaint - Rule 12(a)(1)(B) -- Unless another time is specified by a federal statute, the time for serving a responsive pleading is as follows: in general, a party must serve an *answer to a counterclaim or crossclaim within 21 days after being served* with the pleading that states the counterclaim or crossclaim. D. Substantive Requirements for Responding to a Pleading ----------------------------------------------------- i. ### Affirmative Defenses - Affirmative defenses -- defendant admits but provides evidence to prevent plaintiff from recovering - Rule 8(c)(1) - List of affirmative defenses: - accord and satisfaction - arbitration and award - assumption of risk - contributory negligence - duress - estopped - failure of consideration - fraud - illegality - injury by fellow servant - laches - license - payment - release - res judicata - statue of frauds - statute of limitations - time-bars a claim, you would know that is an affirmative defense because it prevents a claimant from recovering even if the claim could be proven - waiver - Rule 12(b) -- requires that every defense, negative and affirmative, be made in a responsive pleading; allows the seven listed defenses \[Rule 7(a)\] to be made by motion - Special treatment allows a party to raise affirmative defenses by motion without being put to the task of filing and answer -- allows case to be dismissed early if approved, saves time and money, efficiency - Negative defense -- legal defense where the defendant denies the plaintiff's allegations without providing additional facts to support denial; aims to undermine evidence needed to prove plaintiff's case ii. ### Admissions and Denials - Rule 8(b) -- requires that a party - 8(b)(1)(A) - assert its defenses and - 8(b)(1)(B) - admit or deny the allegations asserted by the opposing party Motions ======= - [Motion] - request for a court order Form of Motions --------------- - Rule 7(b)(2) -- the rules governing captions and other matters of form in pleadings (Rule 10) apply to motions and other papers - Rule 10(a) Caption -- every pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation; *the title of the complaint must name all the parties, the title of the other pleadings may refer generally to the parties after naming the first party on each side* (special requirement for a complaint that does not extend to all subsequent pleadings) - Rule 10(b) Paragraphs -- party must state its claims or defenses in numbered paragraphs B. Substantive Requirements for Motions ------------------------------------ - 7(b)(1) -- a request for a court order must be made by motion. The motion must: - 7(b)(1)(A) -- *be in writing* unless made by a hearing or trial - 78(b)(1)(B) -- *state with particularity the grounds* for seeking the order and - 7(b)(1)(C) -- state the *relief sought* C. Deadlines for Rule 12 Motions ----------------------------- - Pre-answer motion optional, but if so must be done before pleading same deadline for motion and responsive pleading *21 days after service* - If a party plans to raise one of the defenses in Rule 12(b) by motion, the party is required to do so before pleading. This means the deadline for filing a pre-answer motion is the same as the deadline for filing a responsive pleading -- *21 days* - Rule 12(a)(4) filing of a pre-answer motion changes the deadlines for filing a responsive pleading - 12(a)(4)(A) -- if the court denies the motion, the responsive pleading must be served within *14 days* after notice of the court's action - Court can set a different time if it chooses D. Defenses that Can be Raised by Pre-Answer Motion ------------------------------------------------ - Rule 12(b) defenses: - Never waived - \(1) lack of SMJ - Waived - \(2) lack of PJ - \(3) improper venue - \(4) insufficient process - \(5) insufficient service of process - Saved - \(6) failure to state a claim upon which relief can be granted - \(7) failure to join a party under Rule 19 Amended Pleadings ================= Three Ways to Amend ------------------- i. ### Amendments as a Matter of Course - First amendment allowance -- once! - Within *21 days of service of the pleading* or *21 days of service of a responsive* *pleading* ii. ### Amendment with Consent - Consent of opposing sides must be written iii. ### Amendment with Leave of Court - Rule 15(a)(3) -- the court should freely give leave when justice so requires - This rule leaves amendment in the court's *discretion* -- it *may* give leave - [Foman factors] -- the court will consider when deciding whether to grant a motion to amend - Undue delay - Bad faith - Prejudice to the opposing party - Futility - Repeated failure to cure deficiencies B. Responding to an Amended Pleading --------------------------------- - Rule 15(a)(2) -- unless the court orders otherwise, any required response to an amended pleading must be made within the *time remaining to respond to the original pleading* OR within *14 days after service of the amended pleading*, *whichever is later* - The party has the later of the time remaining to respond to the original pleading or 14 days from the service of the amended pleading - 14 days calculated from *service*, not just filing, of the amended pleading -- since party may not have notice of the amended pleading until it is served C. Relation Back of Amendments --------------------------- - Rule 15(c)(1)(A) -- allows relation back if the law providing the statute of limitation permits it - Rule 15(c)(1)(B) -- allows relation back if the amendment asserts a claim or defense that arose out of the \*conduct, transaction, or occurrence\* set out -- or attempted to be set out -- in the original pleading - Be sure to understand what a statute of limitations is, explain the reasons for a statute of limitations - Fairness to the Defendant -- ensure that defendants are not subject to litigation long after the events in question, when evidence may have been lost, memories faded or witnesses unavailable. Allowing too much time could result in unfair trials due to the loss of relevant facts. - Judicial Efficiency -- they help courts maintain an efficient system by encouraging prompt litigation, preventing indefinite threat of legal action, and reducing the number of cases courts must handle regarding old events. - Certainty and Finality -- the statute creates predictability by setting a specific period during which legal actions must be brought, thus promoting a sense of closure and finality in legal matters. - Consider how the reasons for a statute of limitation are related to whether an amended pleading filed after the expiration of the statute of limitation should be found to relate back to the filing date of the original amendment - Notice to the Defendant -- if the defendant was properly notified of the claim within the statute of limitations (via the original pleading), allowing an amendment to relate back does not undermine the primary purpose of the statute, which is to avoid surprise or unfairness to the defendant. If the amendment introduces new claims or parties without proper notice, relation back would be less justified. - Same Transaction or Occurrence -- courts often allow relation back if the amendment arises from the same transaction or occurrence as the original pleading. This ensures that the basic facts and issues have already been identified and the defendant was given an opportunity to prepare a defense, preserving fairness while promoting judicial efficiency. - Lack of Prejudice -- if the amendment does not unfairly prejudice the defendant, the court may be more inclined to allow relation back. If the defendant can still reasonably respond to the new claims or allegations despite the expiration of the statute, relation back may be appropriate. Personal Jurisdiction {#personal-jurisdiction.Title} ===================== What is Personal Jurisdiction? ============================== - [Personal jurisdiction (PJ)] -- authority of the court to issue a valid final judgement against a party to a lawsuit, power of the court to bind a judgement to a party and that judgement is enforceable - Judgement that is valid gets *full faith and credit* in every other court - Full faith and credit clause: - State -- Article 4 section 1 - Federal -- USC sec 1738 Attacking Personal Jurisdiction =============================== A. Direct Attack ------------- - An attack on the current case - D files rule 12(b)(2) pre-trial motion to dismiss or objects to PJ in answer - Court finds PJ, case proceeds to judgment - If D loses, D appeals OR - D does not appear and defend default judgement - D makes Rule 60(b)(4) motion to set aside - Generally, no interlocutory appeal in federal court once motion to dismiss has been denied - [Interlocutory appeal] -- a request to a higher court to review a non-final order made by a trial court while a case is still ongoing - Plaintiff has burden of proof B. Collateral Attack ----------------- - Attack in a subsequent case - D does not appear to defend default judgement, ignores the fact that the case happened at all - P files new case against D in court 2 asking to enforce judgement 1 on bases that they think case 1 has full faith and credit - D challenges validity of judgement in case 1 for lack of PJ so judgement doesn't get full faith and credit - ![](media/image2.png)Plaintiff has burden of proof Requirements for Personal Jurisdiction ====================================== A. Authority to Exercise Personal Jurisdiction? -------------------------------------------- - Triggered with Rule 4(k)(1) -- serving of summons or filing a waiver of service - State court - Due process statue -- extent permitted by the constitution or - Tailored long-arm statue - Article 4 section 1 "full faith and credit" state to state - Federal court - Rule 4(k)(1)(A) -- if general jurisdiction authorized to state then federal in same state also has general jurisdiction - \(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the US and not more than 100 miles from where the summons was issued - \(C) when authorized by a federal statute - \*No statue no PJ! B. Is the Such Exercise Constitutional? ------------------------------------ a. #### General jurisdiction (all purpose) - Individuals - [Domicile] (TB) i/p - intend to stay indefinitely, can only be one - Corporations b. #### Specific jurisdiction (case specific) - Individuals/Corporations - Consent/voluntary appearance - Contracts -- choice of law or choice of forum - Tag/Personal service in state - Service on agent in state - [In Rem] (TB) -- against all the world, binds everyone where they reside - About the dirt no need for minimum contacts - Pre-suit attachment required - *Pennoyer* - [QIR I/II] (TB) -- attach for purposes of minimum contacts - Not about the dirt minimum contacts analysis required - Traditional basis for *in personam* jurisdiction - Rooted in the [Rule of Territoriality] -- based on sovereignty of each state, "king" over the people and property within its borders with respect to each state's sovereignty - \*[Fourteenth Amendment Due Process Clause] -- "nor shall any State deprive any person of the life, liberty or property without due process of law" - The Constitution of the United States does not authorize State courts to exercise personal jurisdiction; the Constitution, through the Fourteenth Amendment Due Process Clause merely *limits* the State court's power to do so - \* International Shoe "due process requires only certain minimum contacts such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice'" - Under the Fourteenth Amendment, PJ can be exercised over a nonresident defendant who has \*\**certain* minimum contacts with the forum State such that maintaining a suit against the defendant does not offend the traditional notions of fair play and substantial justice\*\* (the TNFPSJ) - *Shoe* (emphasis added) c. #### Minimum Contacts Analysis for In Personam Jurisdiction Remember that the starting point for this analysis is the De Process Clause of the Fourteenth Amendment - Identify the three policy reasons the court references as justification for the exercise of personal jurisdiction based on these certain minimum contacts discussed in *Burger King* - *Burger King* (like *Shoe*) first looks to see whether there are "minimum contacts" - The consequence of finding "minimum contacts" is a *presumption* that the exercise of personal jurisdiction is reasonable under the Due Process Clause - Even if there are "minimum contacts" the presumption can be overcome if the reasonableness factors demonstrate that the exercise of personal jurisdiction is not reasonable C. Minimum Contacts ---------------- d. Two big parts to the [Minimum Contacts Analysis]: - \(1) minimum contacts sufficient to exercise PJ -- establishing these minimum contacts creates a presumption that exercising PJ is reasonable and - \(2) examination of other reasonableness factors that can overcome the presumption that the exercise of personal jurisdiction is reasonable e. The party seeking to establish PJ has the burden of proof f. Be sure you can explain what we know from *Shoe* and *Burger King* about what to consider when looking to see whether we have hose "certain minimum contacts" in a new hypo - Personal availment and foreseeability g. Can you find where the court in both cases noted the importance of both (1) the quality and nature of the contacts -- demonstrating the defendant purposefully directed activity to the forum and (2) that the litigation arise out of or be related to the contacts? h. Continuous systematic course of business - reasonableness a. #### Quality & Nature of the Contacts -- Purposeful Availment 1. ##### Physical Contacts 1. *Shoe* tells us to look at the quality and nature of the contacts, not the quantity; this is not a mechanical or quantitative analysis 2. If there are no physical contacts or inadequate it is still possible to demonstrate purposeful availment; look instead for contacts or connections with the forum that "substitute for" those physical contacts 3. Totality of the circumstances analysis -- even if inadequate on their own, physical contacts may contribute to establishing purposeful availment on one of the other theories 4. PJ can also be found on a substitution theory even without physical contacts 5. Be sure you can explain the facts in *Shoe* that demonstrated purposeful availment 2. ##### Substitution Theory -- Contract Theory 6. Contractual relationship alone is insufficient to demonstrate purposeful availment 7. Four factors in *Burger King*: a. \(1) The burden on the defendant -- travel from MI to FL b. \(2) The forum state\'s interest in adjudicating the dispute -- BK headquartered in Miami c. \(3) The plaintiff\'s interest in obtaining convenient relief -- all their dealings, final orders, authority based in Miami d. \(4) The interstate judicial system\'s interest in obtaining the most efficient resolution of controversies 3. ##### Substitution Theory -- Effects Test ##### Substitution Theory -- Stream of Commerce ##### Coming soon b. #### Relatedness - Court looks both to whether there is purposeful availment *and* to the relationship between the defendant's connections and the forum to decide whether the case involves those "certain minimum contacts" that creates a presumption that the exercise of PJ is reasonable -- seen in *Shoe* and *Burger King* - Both purposeful availment and relatedness must be satisfied to get the presumption c. #### Reasonableness - *Burger King* provides a list of the additional factors that will be considered when deciding whether even though "certain minimum contacts" are present and create the presumption of constitutionality the exercise of personal jurisdiction is nonetheless unreasonable and therefore unconstitutional - Find factors in BK and add to outline

CivPro_Outline_MAP.docx

Related

Transcript

Tags

Upgrade to continue