Read the test and spot issues Copy names and claims for parties before starting each problem Copy checklist into problem Make sure you answer the question RELAX Personal Jurisdiction Short cuts General jurisdiction – Short contacts analysis Specific statute – special cases? Use Analysis Specific const contacts Reasonableness – if contacts, likely reasonable! Notice Opportunity – Prejudgment Attachment Private (Δ’s) Interest Risk of erroneous deprivation Interest of Π and interest SMJ State Court Reverse Erie? Removal? Diversity Amt in Cont – Certainty – Injunction/combining Was removal proper? § 1441 Citizenship – @ Time of removal Challenges Erie problem? Federal Question Diversity? Constitutional test Statutory – Motley Statutory – Merrel/Grable/Empire Supplemental Jurisdiction? Erie? Supplemental Is there federal SMJ? Gibbs 1 Diversity – Kroger 2 Diversity – Erie? Removal Venue – Page 9 Non Conveniens Threshold: Adequate alternate forum? Factor #1: Deference to Π’s choice of forum Factor #2: Public vs. Private interests Erie – Page 10 Which state law? Is there a conflict? Which side wants what? RDA REA – Statutory REA – Constitutional Federal Common Law Erie? Reverse Erie Pleading Apply Rule 8 Cross off Conclusory Apply Twombly Extras – Pro se? heightened pleading? Answer Counter Claim Amending Pleading Relation back Sanctions Settlement Discovery Non-privilege, relevant, calculated? AC – is/acting as attny? AC – Waived? WP – Prepared by lawyer for lit? WP – Core WP? Summary Judgment No genuine dispute Burden Adickes – New Celotex – Holes in facts Shift burden – more facts Preclusion Claim Preclusion Mutuality? Same transaction/occurrence? Final judgment on the merits? Matter previously available? Issue Preclusion Claim preclusion? Issue necessary? Run counter-factual Final judgment on the merits? Judgment in the alternative? Non-mutual collateral? Joinder Rule 20 Rule 19 Necessary? Indispensable Harlan? Action Prerequisites Requirements of Consider Settlement trial
J McIntyre (Dissent) (WW-VW) – when aiming to sell in a region, amenable to suit anywhere in the region Calder Effects Test (Π contacts may enhance) Committed a tort (can be as simple as defamatory comments) at forum (note where Π is) Caused harm in forum Contacts – no Hansen v. Denckla – No unilateral activity of 3rd party, Δ must purposefully avail WW-VW – No unilateral action of Π or 3rd Chattel as agent – would lead to universal jurisdiction Should Δ reasonably anticipate hailed to the forum? Beach – Stale contacts – targeting a region but no specific place is insufficient contact Reasonableness – Must insure that jurisdiction would not be unreasonable Burden on Δ Π’s interest in forum State’s interest in providing forum and subject matter of lawsuit Efficient resolution Federalism – another state with competing interest Just because a can assert jurisdiction doesn’t negate jurisdiction in the original forum Special Cases – Power over Property Quasi in rem 2 – If allowed by statute, can circumvent other statutory stipulations, need Constitutional minimum contacts – Shaffer In rem – must be a dispute over title to property Quasi in rem 1 – Dispute arises out of that property Some disagreement over attachment of real property – Rhoades v. Wright – attached farm Internet Contacts Zippo Test Passive (info only, Pebble Beach) interactive Active (doing business, contact) Proxy for availment – conducting transactions and transferring products/services in forum, then you’ve availed of the forum Location of servers, % of traffic – Servers = bank Helicopteros, % is just awareness, insufficient to establish jurisdiction Theory of jurisdiction WRT corporations Consent – implied consent forced when opening business in forum, tag of CEO in forum on business Business in forum – Doing business – Foreign corp is getting the benefit of doing business in the state, so should be held to judgment – International Shoe Served in forum – Presence – physical presence in the state – general jurisdiction Federal Rule of Bankruptcy Procedure, Rule 7004 (ERISA is similar) Nationwide service of process – need contacts with entire US – DPC 5th Amendment McIntyre – Avail of US – Hard to find unreasonable, change of venue is available Notice – Service of Process
Did Π have to present evidence? Is evidence presented of sufficient quality? – Filing party not knowing facts; Mitchell – Debt evidence) Clerk/judicial officer? (Di-Chem – Clerk; Mitchell – Judge) Bond/security? (Mitchell – Bond) Interest of Π with due regard for interest gov may have for safeguards Exigent Circumstances? (Fuentes – need important Gov/Pub interest, or need for prompt action) facts that show attachment is unnecessary or could be done in a better way? Attachment – NO Fuentes v. Shevin – Policies against pre-hearing attachment Δ is deprived of property without notice or opportunity to be No notice Temporary deprivation of property is deprivation Exceptions Necessary to secure important government or public interest Special need for prompt action State keeps a monopoly over these exceptions Di-Chem – Garnishment of bank account Only conclusory allegations – poor documentation Issuable by No protection against initial error No hearing for Π to show probable cause Π has no specific interest in account Connecticut v. Doehr – Attached house after fist fight Adapted Matthews balancing test Private interest affected Risk of erroneous deprivation and value of added safeguards Interest of the party seeking the remedy and due regard for the interest the gov. may have in additional safeguards Attachment – YES Mitchel v. WT Grant Co. – Requirements for legal pre-hearing attachment statute Acceptable ex parte attachment in debtor/creditor relationship Showing before judge Δ can seek immediate dissolution via post-deprivation hearing Π must post bond for value of goods What showing at pre-judgment? Evidence? Does the party seeking attachment have an interest in the attached property? Federal Rule 65(b)(1) – Temporary restraining orders 65(b)(2) – TRO for 10d during which a hearing to grant preliminary injunction takes place; P.I. can last til final judgment.
VENUE AND FORUM NON CONVENIENS Venue – Treat each district as an individual state § 1391 – Federal Venue Provisions (proper venue) District where any Δ resides if all Δ are in the same state Place where substantial part of events occur District in which any Δ is subject to PJ when action commenced if there is no other suitable district Corporations are done like minimum contacts Aliens are good in any district § 1404 – District court can transfer to another court where venue was also appropriate and is maybe more convenient § 1406 – can transfer or dismiss in cases where venue is improper Van Dusen – in diversity, transferor venue law follows the case § 1631 – if transferred to cure personal jurisdiction, transferee applies Threshold: Adequate alternate Factor #1: Deference to Π’s choice of forum Factor #2: Public vs. Private interests Forum non Conveniens Factors (Gilbert factors from Iragorri) Must be an adequate alternative forum Are there significant disadvantages in the alternate forum? Can be granted even if other forum is less Π-friendly (Piper) Can Π bring suit there at all? Can Π get any kind of recovery? Only if it is so bad there is no remedy at all Must give deference to Π’s choice of forum (Factor #1) Is Π forum shopping? Can Π get jurisdiction over Δ’s here/there? Where was the harm felt? Sliding scale – Π at home, strong; Π foreign, weak (Iragorri Convenience – forum is actually convenient for all parties? Public vs Private Interests (Factor #2) Private Factors: sources of proof, availability of PJ, cost of obtaining witnesses, other issues with making easy Public Factors: Burden on court, choice of law difficulties Is someone gaming the system? (Iragorri – Δ forum shopping) Greater implications? (Iragorri – faulty elevators in use in the Will granting J create flood gates? (Piper – aliens want to try tort cases in US) Problems of enforceability? (Gilbert) Sinochem – Can dismiss on FNC without determining PJ first Which state law? Is a conflict? Which side wants what? RDA REA – Statutory REA – Constitutional ASCERTAINING APPLICABLE LAW
Party understood that he was acting as a rep or the court minded non-party interests Notice of the first suit to the non-party Class Action, Trustee/beneficiary Non-party assumed control over lawsuit Colluding to relitigate by proxy Special Statutory scheme (bankruptcy, in rem actions, litigation by US) Preclusion – Collateral Estoppel Analysis – Is there claim preclusion? Prior judgment under diversity? (Semtek) Issue in 1st and 2nd case must be (1) actually litigated (Cromwell), (2) necessary to the judgment (Rios), and (3) a valid final judgment on the merits Is it necessary? Use the facts What are they trying to What is needed to prove it? How does the precluded fact interact with this? Run the counter-factual Can it be appealed? Did the party being precluded win? (Rios) it fully litigated? Is it a final judgment on the merits? Must be a valid, final judgment on the merits Default judgment – preclusive, NOT issue preclusive decree – judgment entered based on negotiations between parties by administrative agency – consider how “court-like” proceeding is Alternative grounds for judgment? Some courts preclude all grounds – counter-factual in isolation Some courts preclude none – counter-factual taken together Some courts preclude leading ground Non-mutuality? – SEE BELOW! Non-Mutuality Offensive Non-Mutual Collateral Estoppel (Parklane) New Π precludes Δ from relitigating previous issue Could Π have easily joined previous action? Joinder/Fence Sitter Was there incentive for Δ to litigate the issue? prior inconsistent judgments? (Tmac likes this one) Π taking advantage of new procedural opportunities that were not available before? Defensive Non-Mutual Collateral Estoppel (Blondertongue) New Δ precludes Π from relitigating a previous Policy – Non-parties can’t be forced to intervene (Martin – white firefighters) Day in court ideal – notice and opportunity Hard to believe all effected parties will be aware Burden on present parties to implead those that they want bound Can’t burden someone that was a stranger to the previous lawsuit trial?
TOPICS: summary judgment, plausible pleading CASES: Matsushita, Scott v. Harris; Twombly, Fairness Impartiality & Consistency. Like claims decided treat litigants the same regardless of status. TOPICS: Stare Decisis, preclusion v. “gaming table,” sideline-sitters, forum shopping (Erie) CASES: Walker, Blonder-Tongue, Parklane, v. Taylor, Moitie, Access & Opportunity to be Heard. How do we ensure equal access to justice system? In tension with efficiency. TOPICS: Day in court ideal, notice pleading, pro se litigants v. plausibility, preclusion, virtual representation. CASES: Dioguardi, Erickson, Doehr, Taylor, Wilks Federalism. When does the need for uniformity, efficiency, outweigh state’s interest in governing selves? TOPICS: federal common law, Erie Doctrine, state law in federal courts, federal law in state courts CASES: Art III §2, Art VI ‘Supremacy,’ REA, RDA, Swift, Clearfield cf. Erie, Klaxon, Semtek Tradition v. Adaptation. Scalia v. Breyer. Should procedure conform to old interpretations, devices? Or change to accommodate new developments in technology, society? TOPICS: power (Territorial v. “minimum contacts”), AIC, supplemental jurisdiction, jury trials CASES: Pawloski, Int’l Shoe, Burnham, Shaffer, R23, 1367, Personal jurisdiction. Sovereignty – full within. Providing remedy. Limitation on the states to exert their authority outside of their territorial borders. Grant of full faith and credit. Expectations based on stare decisis. Note circularity. Planning conduct based on amenability to suit. Standard based test. Give up efficiency and certainty for accuracy and due process. Benefit vs. burden. (Burnham; Carnival) Balancing stare decisis with changing societal norms (technology, commerce, international relations) Internet jurisdiction. Reach of federal courts. Prevention of vertical forum shopping. (No constitutional barrier). Notice. Have to be given opportunity to contest in order for adversarial system to work. Default judgments. Not determined on the merits Prejudgment attachment. Deprivation of property requires due process under 5A and 14A. Government is the one seizing the property. Risk of erroneous deprivation Immediate post-deprivation hearing Evidence showing on the merits prior to hearing