The Law Dictionary

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Civil Procedure: Cases and Problems (Ides and May)

  • Pennoyer v. Neff (1877): Two things a court needs to have power over a defendant:proper exercise of power and proper triggering of that power (through proper notice of service). Exercise or authority can be attained by having in personam, in rem, or quasi in rem. In personam means having someone within a state (or an agent), in rem means that a person owns the property in a state and that property is the basis of that suit, and quasi in rem requires that a property be attached at the beginning of a suit to gain personal jurisdiction over a claim not related to the property. Debt is property – a bank account is also property that can be attached in quasi in rem.
  • Harris case: Traveling debt argument: the debt is not located where the debt is created but instead where the defendant could sue for that intangible property.
  • Minimum contacts constitutionality test (for in personam)
  • International Shoe Co. v. State of Washington: Deals with the personal jurisdiction of parties outside the borders of a state through a long arm statute. Created a due process “minimum contacts” test
  • Minimum contacts test (summarized on pg. 85):
  1. Is there a long arm statute in the state?
  • For federal cases, Rule 4(k)(1)(a) applies. If it’s a defendant from a different country then it’s rule 4(k)(2)
  1. Does the defendant have minimum contacts with the forum state that the assertion of jurisidiction would not violate the due process clause?
    1. Has the defendant purposely availed itself of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of the state’s laws?
  • Hanson v. Denckla: purposeful availment by some kind of contact/connection with the forum state (through business, offices, etc) and not through the other party in the state. Must avail themselves of some sort of benefit/privilege of the state.
  • Burger King Corp. v. Rudzewicz: Defendant is purposefully availed if his conduct and connection with a forum state are such that he should reasonably anticipate being hailed into court there. The terms of the contract are important here because it could show the anticipation a party should have. Prior negotiations between parties is another factor. In this case, although defendant had no connection to the forum state, he created a contract which had substantial connections to florida The def could foresee that not paying BK would lead to him being hailed into court in Florida. As such he purposefully availed himself
  • There was a forum provision in the contract – the court said that this is persuasive but not binding; foreseeing being hailed into court because a contract was created and signed in a state is purposeful availment though
  • Stream of Commerce
  • World Wide Volkswagen Corp v. Woodson: Foreseeability that a product could cause an injury in another state is not enough for purposeful availment, but if the product maker can foresee that he will be hailed into court based on their own actions then there is purposeful availment. They have to enter the product through the stream of commerce. This could be satisfied by directly or indirectly marketing the product to that state or by delivering the product to the state knowing that it would be sold there. If it enters the stream of commerce, it needs to be done through the connections to the distributors in the stream. Defendant needs awareness that it will be in a forum state. Deals with a domestic company with finished product
  • Asahi Metal Co. v. Superior Court of Cali: foreseeability of a product entering a state through the stream of commerce not enough. There must be an intentional act with the connection of the forum state through the stream of sales (it must be purposeful). If one makes a product that they know will be in Cali, it must be accompanied with the purpose to do so through things like advertising, making channels for advice in the state, creating products tailored to the state. Deals with foreign company with component part
  • McIntyre v. Ni Castro: When a foreign company markets to a country as a whole that company does not purposefully avail themselves. They need to specifically aim to a specific state through advertising and such. “fair play and fairness” has to be joined together with stream of commerce. Deals with a foreign company with a finished product
  • The “Effects Test”: it is 1) an out of state act that 2) causes an intentional effect in a state and 3) whether causes of action arises from the act. It shows that defendant can foresee being hailed into court in the state where the effect was caused, that defendant gained benefits of state, and that his actions directly targeted state.
  • Kulko v. Superior Court: Defendant was being sued for daughter going to live with mother instead of him. He bought ticket for her to go to mother and this essentially was argument for the effect he caused in Cali. Court said he did not avail himself. He was just following wishes of daughter and could actually be considered her own act. Public policy: would deter from family proceedings. Court held that purposeful availment is not established by showing a defendant knew his conduct outside the state would cause an effect in the forum.
  • Calder v. Jones: Merely knowing is not an effect, but intending for an effect meets the effects test. The general acceptance in most jurisdiction is that the Calder effects test requires intentional conduct expressly aimed at or targeting the forum state in addition to the defendant’s knowledge that his intentional conduct would cause harm in the forum state.
  • Revell v. Lidov: shows the Calder analysis on a website. A defamation article has to mention the state that it wishes to cause harm in. In this case the writer of the article had no idea that the plaintiff lived in Texas so there’s no way he could have foreseen being hailed into court there.
  • Zippo manufacturing case: websites connection to a forum state based on a scale test. One end of the scale is a passive website that allows users to post info (not sufficient for personal jurisdiction). Other end of scale are owners of sites that engage in repeated online contact with forum residents over the internet (personal jurisdiction may be available). Most fall in the middle though
  • TEST for minimum contacts through effects test: 1) Has to be an out of state act, 2) there had to be an intention to create an effect in the forum state, 3) the suit has to be connected to the act. In a Calder analysis each of these elements must be shown.
  1. Does the lawsuit arise out of or relate to the defendant’s purposeful contact with the forum or, if it does not, are the defendant’s forum contacts so extensive that no such relationship is necessary? Plaintiff must show that the causes of action “arise from” or “relate to” the defendant’s purposeful contact with the forum state. Can be satisfied in two ways:
  • General Jurisdiction
  • General jurisdiction exists if a party has substantial and continuous systematic relations with a state. It is rare for this to happen
  • Helicopteros Nacionales v. Hall: In this case they tried to use general jurisdiction to satisfy the relatedness requirement because specific jurisdiction could not be used since the actions did not relate to the forum state. The court found that the actions of the defendants were not substantially and continuously systematic to have general jurisdiction. Purchasing of products and trip to state by CEO are not enough to satisfy systematic requirement.
  • Goodyear case: establishes that for general jurisdiction of a corporation, the corporation needs to be at home in that state
  • If general jurisdiction not possible, you move on to…
  • Specific Jurisdiction
  • This is direct to the act. The action has to arise from or be related to the state. When a state exercises personal jurisdiction over a defendant in a suit arising our of or related to the defendant’s contact with the forum state.
  • There are 4 tests for specific jurisdiction; test the nexus between the defendant’s contact and the plaintiff’s cause of action
  • Proximate Cause test: hardest test of the first three. Defends the defendant. Needs a very deep connection
  • But for test: easiest test of the first three. But for the contact, claim would’ve never happened. But for embraces every single chance
  • Substantial Connection test: in the middle of but for and proximate cause
  • ”Lie in the wake of” test: flexible standard established in Tak How case. There needs to be a meaningful link between action and claim. It is meant for special circumstances
  • These tests might only apply in actions by defendant such as torts, but in things like contracts it might be more difficult to point out
  1. Would the exercise of jurisdiction be unfair and unreasonable, taking into account the interests of the defendant, the forum state, the plaintiff, and other states that may have an interest on the matter?
  • There are 5 factors courts look at in determining reasonableness
  1. Burden on defendant
  2. Forum state’s interest in advocating the dispute
  3. The plaintiff’s interest in gaining convenient/effective relief
  4. Interstate judicial systems interest in the most efficient resolution of controversies
  5. The interest of other states in furthering their substantive policies
    1. In Asahi case, the court said it would be unreasonable for the defendant because the def was from japan (factor 1), indemnity case is not in the interest of the forum state (factor 2), plaintiff is not from forum state (3), there is no interest by interstate judicial systems because asahi is foreign (4).
  • Test tip: Before doing the minimum contacts analysis, you should eliminate other ways in which a person might have purposefully availed themselves (such as getting served process while they were in the state)
  • Minimum contacts for in-rem and quasi-in-rem cases
  • Shaffer v. Heitner: minimum contacts constitutionality analysis applies not only to in personam jurisdiction but also for in-rem and quasi-in-rem jurisdictions.
  • What would an attorney need to ask to determine whether he could use quasi-in-rem jurisdiction?
  1. First they would have to ask: does the state have a statute that allows for jurisdiction or assertion of power over an individual through in-rem?
  • In federal cases one would start off by using Rule 4(n). This rule states that if you can’t use rule 4(k), then you can use in rem. It’s better to use in personam first (more powerful) and then use in rem if in personam fails
  1. Next, you have to find out in a statutory manner whether one has to attach the property at the beginning of the case
  2. Then you move on to the constitutionality test used in “in personam”
  • If a person is served papers within a state and is not domicile in that state (meaning just visiting), then that court has in personam jurisdiction over that individual
  • Established in Burnham v. Superior Court; used history as the reasoning behind it. Minimum contacts not needed if a person is served within a state; minimum contacts only applies to out of state parties
  • This does not apply to federal cases
  • In federal cases we must look at rule 4(k) to determine if a party can be served
  • Rule 4(k)(1)(c): Authorizes federal jurisdiction if defendant has contacts with U.S. as a whole
  • Rule 4(k)(1)(b): 100 miles from court house or state
  • Rule 4(k)(1)(a): this looks for contacts with state in which federal court sits
  • A person has to willingly go into a state to be served papers. They can’t be taken into the state against their will and be properly served (i.e. being taken into a state through an ambulance of which you have no control)


  • Rule 4 is what governs in proper service
  • We first have to ask if the service of process comports with rule 4 and then if it does, whether it comports with due process
  • American Institute v. Affinity Card: deals with serving of process to corporations. Rule 4(h)(1) governs this case
  • Rule 4(h)(1): unless there’s a federal law that says otherwise or if the defendant had a waiver filed then a defendant must be served
  1. In a judicial district of the U.S.
    1. In the manner described by rule 4(e)(1) for serving an individual – which states to follow the state law for service (in this case New York’s)
    2. Or by serving process to an agent of the corporation (which in this case the man served was not).
  2. Prong 2 doesn’t matter in this case
  • Mullane v. Central Hannover Bank and Trust Co: To properly serve someone, the means employed must be such that is more than a notion and actually tries to inform a defendant. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those effected.
  • Two part test for Service of Process
  1. Is there a statute or rule 4?
  2. Is it constitutional?
    1. For this the circumstances are big; is it impractical (if there’s an easier more efficient manner of serving process, then it must be done). Has to reasonably inform those that are served.
  • Rule 4(e) applies to individuals, Rule 4(h) applies to corporations, (f) is for an individual in a foreign country, (g) is for a minor or an incompetent person, (i) is serving the U.S. and its agencies, (j) is serving a foreign state


  • Geographic location of court where lawsuit is being filed
  • Rules of venue are largely statutory and are usually based on convenience
  • In the overall picture, a court needs personal jurisdiction, subject matter jurisdiction, and proper venue
  • In Florida you can’t have a transfer of venue to another state because it’s a Florida state matter. In federal court though, transfers can happen since it is in federal court
  • 28 U.S.C. §1404/1406 are used for transfers
  • 1404 is consent to change of venue
  • 1406 is when there is no venue and a transfer is needed
  • Venue in Federal Court
  • General venue statute is 28 U.S.C. §1391
  • Difference between A/B is that they distinguish between different types of subject matter jurisdictions
  • A(1) and B(1) deal with domicile of def’s. If all def’s live in same state, venue in that state is proper
  • B(2) and A(2) says that if substantial portion of the action arose from that location then venue is proper there
  • 1391(a) deals with cases in diversity of citizenship, (b) deals with cases that are in non diversity of citizenship (meaning federal question cases)
  • First of Michigan v. Bramlet: a(2) of §1391 makes it so that in diversity of citizenship cases, the plaintiff may file complaint in any forum where ANY substantial part of the events or omissions giving rise to the claim arose.
  • If a federal court lacks personal jurisdiction or proper venue then they can transfer the case to another federal court under §1404; state court cant do this so they dismiss the case (Goldlawr v. Heiman)
  • Smith v. Colonial Penn Insurance: several factors will weigh in on transfer of venue under §1404 – the availability and convenience of witnesses and parties, the location of counsel, the location of books and records, the cost of obtaining attendance of witnesses and other trial expenses, the place of the alleged wrong, the possibility of delay and prejudice if transfer is granted, and the plaintiff’s choice of forum.


  • Federal courts subject matter jurisdiction (granted by Article III of the constitution; limited by §1331 of the Fed. Stat.)
  • 28 U.S.C §1331 (“arising under”): as interpreted by the courts, a case arises under federal law under 1331 if 1) the cause of action under which plaintiff sues is created by federal law (the Creation Test) or, 2) the cause of action under which plaintiff sues, although not created by federal law, includes an essential federal ingredient
  • Grable & Sons Metal Products v. Darue Engineering: a state law claim that deals with some sort of federal ingredient, such as the interpretation of federal law, can make it so that a state law claim can be heard in federal court
  • Questions to ask to determine whether a federal ingredient issue gives jurisdiction to federal court under §1331
  1. Is there a federal issue at dispute?
  2. Is this federal issue substantial?
    1. It can be substantial if it’s the only disputed issue or through congressional intent through statute
    2. Is it at the heart of the suit?
  3. Can this case be heard in federal court without violating federalism (the relationship between state and federal court)?
    1. Can it cause a chaos between state and federal court?
  • A federal ingredient issue must be on the face of the claim (in other words it must be part of the resolution of the claim), a potential federal issue is too broad to even apply the federal ingredient test – Luisville & Nashville v. Mottley
  • 28 U.S.C. §1332 Diversity Jurisdiction: deals with cases between citizens of different states, citizens of a state and a foreign country (alienage jurisdiction), and the amount in controversy must exceed $75,000
  • This type of subject matter is resorted to when §1331 is not viable (so usually it deals with state claims)
  • Strawbridge v. Curtis: ruled that there had to be complete diversity (in terms of domicile) between parties (plaintiff cannot be from same state as an additional party on defendant’s side)
  • Diversity of persons
  • Lundquist v. Precision Valley Aviation: domicile is anywhere a person plans to stay indefinitely. This can be shown by things such as voting registration, real property, corporation papers, etc. In this case, domicile was shown over another domicile by the plaintiff’s voting registration and corporation papers
  • Diversity of corporations
  • §1332(c)(1): “a corporation shall be deemed to be a citizen of by any state by which it has been incorporated and of the state where it has the principal place of business”
  • Hertz Corp. v. FriendNerve Center Test – a corporation’s principle place of business is the place where a corporation’s officers direct, control, and coordinate the corporation’s activities (the nerve center); should be corp’s HQ, not simply an office where board meetings are held
  • Alienage Jurisdiction (Diversity cases involving aliens)
  • §1332(a)(2)/(3) deals with foreign parties in diversity jurisdiction. (a)(3) requires citizens of U.S. states to be on both side of the suit along with whatever foreign parties in the suit; (a)(2) requires there to be a party from a U.S. state on one side only.
  • Eze v. Yellow Cab: Under (a)(2), if foreigners are on both sides of the suit, then there is not complete diversity (even if the foreigners are from different countries)
  • The only way foreigners on both sides works is under (a)(3), because there would be a party from a U.S. state on both sides.
  • Example: Plf from NY + citizen of Ghana v. def from NJ + citizen of Ghana. This is proper under (a)(3). But, Plf from NY + citizen of Ghana v. Citizen of Ghana does not have complete diversity under (a)(2)
  • Amount in Controversy
  • The general rule is that if a plaintiff being a claim exceeding $75k in “good faith” then the §1332 requirement is met, even if the defendant claims its for less than $75k
  • Bad faith would be inflating the price for purposes of meeting diversity jurisdiction
  • Good faith would be if it were a plausible amount of damages
  • Good faith Test of St. Paul Mercury case:
  1. looks at what a plaintiff knew or believed (in terms of the amount of damages (subjective)
  2. What a reasonable person would have known (objective)
    1. So if a person reasonably believes her case is worth 100k but theres a statute saying she can only recover $2500, then she meets prong 1 but fails prong 2
  • Coventry Sewage v. Dworkin Realty: If a party reasonably believed that they had the proper amount in controversy because of the information given by a 3rd party, then that party meets prong 1 and prong 2 of the good faith test because they reasonably relied on the information of the 3rd party. Key is that if the information is revealed to be wrong after the claim is filed, then it’s in good faith; if it was revealed before the claim was filed then it’s in bad faith
  • Aggregation of claims: when trying to reach the minimum of 75k, a single plaintiff can combine all their claims against the defendant to reach the minimum (so they can combine a breach of contract claim, defamation claim, and personal injury claim)
  • Multiple defendants cannot combine their claims to reach the minimum though; more than one plaintiff usually means that every plaintiff must satisfy the minimum.
  • The exception is in “single title or right” in which the parties have a common and undivided interest; is rare. Example is a case in which a single will is at issue
  • Supplemental Jurisdiction: claims that could not have entered federal court on their own may sometimes be heard by federal court if they are part of a case which the court has subject matter jurisdiction over
  • 28 U.S.C. §1367 is what governs over supplemental jurisdiction. Before §1367 there existed pendent and ancillary jurisdiction but they were later combined into this Federal statute.
  • Pendent jurisdiction: this is when the federal courts take jurisdiction over claims asserted by the original plaintiff which there was no independent basis of subject matter jurisdiction
  • Ancillary Jurisdiction: usually involved claims by a person other than the original party where no independent basis of jurisdiction existed. Examples include counterclaims, cross-claims, or claims by someone else wishing to intervene in the suit
  • United Mine Workers v. Gibbs: A potential pendent jurisdiction case has to share the same nucleus of operative facts as the federal claim to claim pendent jurisdiction. They share the same nucleus of operative facts if there are substantially similar facts for both cases. Even if they do share the same facts, the court does not have to take the case; it’s discretionary not a right. The court looks at judicial economy, convenience, fairness, and jury confusion in determining whether to take the claim
  • Owen Equipment v. Kroger: Supplemental jurisdiction claims can also be brought when diversity jurisdiction claims are present, but diversity jurisdiction must be met subject to §1332.
  • Questions to ask for supplemental jurisdiction (1367 (a))
  1. Is there a statute governing the question
  2. If not, is there a federal question?
  3. If so, is there a common nucleus of operative facts between the claims?
  4. If so, should the court take this claim? (1367 (c))
    1. Does it serve judicial economy?
    2. Is it convenient?
    3. Is it fait to litigants?
    4. Is there jury confusion?
  • Questions to ask for supplemental jurisdiction under 1367(a) and (b) diversity jurisdiction
  1. Is there a statute governing the question
  2. If not, if the federal question was a diversity case, is §1332 standard of complete diversity and amount in controversy met? (1367 (b))
  3. If so, is there a common nucleus of operative facts between the claims?
  4. If so should the court take this claim? Same as above
  5. After this has been answered we move on to the diversity jurisdiction exceptions in 1367(b)
    1. The exceptions are any claims brought about under Rule 14, 19, 20, or 24.
  • Congress aggregated all these rules into §1367, so this is what one would cite in a test instead of ancillary or pendant jurisdiction
  • Removal Jurisdiction: federal court’s ability to hear cases that a plaintiff initiates in state court but that the defendant wishes to remove to federal court.
  • Governed by 28 U.S.C. 1441
  • Removal under 1441 (a) and (b)
  • (a) allows a case to be removed to federal court if it is one over which the federal court could have had original jurisdiction. (b) bars removal in diversity cases if any defendant is a citizen of the forum state. (a) and (b) are like a package; both must be analyzed together to know if removal is possible
  • A case can only be removed to a federal district court that sits in the state where the original state claim was made. After it’s been removed to federal court, then the case can be transferred to another federal court
  • Only defendants can have a case removed to federal court
  • McCurtain County Production v. CowettConsent by all defendants necessary to remove a claim to federal court under 1446(a). There are exceptions though:
  • If removal is being sought under 1441(c)
  • If there’s a nominal or formal party, which is someone that’s put into claim but plaintiff has no way of recovering against that party (not a real party)
  • Improperly joined party
  • A non-resident that has not been served

Also, defendant tried to remove the case to federal court because the case met diversity jurisdiction. The court said that it could not be removed because the amount in controversy could not be met since defendants cannot aggregate their counterclaims to meet the amount in controversy.

  • If you pass 1441(a) you move on to 1441(b), it’s an “and” analysis. But 1441(b) only applies when a court is being removed under diversity jurisdiction. 1441(b) refuses removal of a case under the pretenses of diversity if both parties are from the state
  • Removal under 1441(c)
  • If you cant use (a) and (b), you move on to (c). (c) applies when there are two claims against a defendant: one federal and one state (and the state claim cannot meet supplemental jurisdiction because it doesn’t arise from the same nucleus of operative facts), the federal court can choose to take the state issue along with the federal issue that they do have original jurisdiction over
  • The court can choose to do so but they don’t have to
  • They key to 1441(c) is that the different claims be “separate and independent” of one another (can’t have substantially same facts or be based on ruling of one another)
  • Separate: must be of separate wrongs. We look to the injury the claims are based on: if they’re different (such as firing and interference) then it passes the separate prong; must be separate claims
  • Independent: looks at the facts to see if they are different facts
  • The entirety of the case must be removed to federal court (can’t remove individual cases), if not it gets dismissed. Once the case is fully removed, then the federal court can remand pieces of the case (i.e. certain claims)
  • Test one would have to go through under 1441(c)
  • First we ask if there’s an applicable statute (which also applied to supplemental jurisidiction and 1441(a) and (b) (remember to put this first always)
  • Then we ask if there’s a claim that could have original jurisdiction
  • If there’s other claims to be removed, you must do a supplemental jurisdiction §1367 analysis first before you can get into 1441(c).
  • You first look to 1367(b) under diversity jurisdiction, if that doesn’t apply then you move on to 1367(a) and ask if the claim being removed has a common nucleus of operative facts with the original claim
  • Then we look at the exceptions under 1367(c)
  • If the case doesn’t have supplemental jurisdiction, then you move on to removal under 1441(c)
  • We look to see if the claim trying to be removed is separate and independent from the original case
  • Must first have separate wrongs (or claims)
  • Must have facts substantially independent of one another


  • In diversity cases dealing with a state claim, the federal court must apply state substantive law and federal procedural law
  • Erie Railroad v. Tompkins: Federal courts exercising diversity jurisdiction are now free to devise principles of substantive common law, but are instead required to apply state law, including state common law, to the resolution of the state claims
  • Conflicts begin when conflicts arise between the state substantive law and the federal procedural law
  • What governs depends on the source (federal statute, F.R.C.P., or judge made doctrines)
  • Three Tracks of Erie Analysis (summarized on pg. 537)
  • Track One: Federal Statutes and Supremacy Clause
  • Track one is used when there is a conflict between a federal procedural statute and a state substantive law
  • Test for track 1 to determine if a federal procedural statute trumps a state substantive law (Stewart Organizations v. Ricoh)
  1. Is the statute sufficiently broad to control the issue before the court?
    1. Does the statute deal with the claim here
  2. If so, does the statute represent a valid exercise of congress’s authority under the constitution? In other words: Is it procedural law?
    1. Is the statute actually have a procedural function
  • Track Two: Federal Rules of Civil Procedure
  • Track two is used when a FRCP is in conflict with a state substantive law. Reason it has its own track is because the FRCP were ratified the year after Erie was decided
  • 28 U.S.C. 2072 (Rules Enabling Act) is what determines the validity of a FRCP trumping a substantive state law. A Federal Rule cannot violate the Rules Enabling Act. Established by Sibbach v. Wilson
  • Test for track 2 to determine if a FRCP violates the Rules Enabling Act:
  • You must first determine if the statute is sufficiently broad to control the issue before the courtIf it is, then you can apply the track 2 Sibbach/Hanna test:
  1. The rule must actually be doing a procedural function
    1. A statute is procedural if it offers a manner or means of supplying facts to a state claim
  2. The rule cannot abridge, enlarge, or modify substantive rights
    1. It’s not about whether substantial rights are violated – most procedural rules do that, but instead if it “alters the rules of decisions by which the court will adjudicate these rights” (Shady Groves v. Allstate)
  • Sibbach v. Wilson: Plaintiff admitted that the rules being enforced against her were procedural, satisfying prong 1, but that it violated her substantive right given by the state law (violating prong 2). The court said there was no substantive right to be violated.
  • Walker v. Armco Steel Co: the rule must be broad enough to apply to the case at hand, if it does not then the track 2 analysis can never be commenced. If the rule doesn’t apply to the case then there is no conflict between the state law and the federal procedural law
  • Track Three: Federal Procedural Common Law
  • This deals with procedural common law cases; things such as doctrine of forums non-conveniens and doctrine of claim and issue preclusion. Unlike track 1 and track 2, this is neither constitutionally driven nor premised on a federal statute. Federal procedural common law exists because there are gaps judges need to fill.
  • Test for Track 3
  1. Is the statute sufficiently broad to control the issue before the court?
  2. Then we must ask if the law was procedural
  3. “Refined Outcome Determinative test”: Does applying the federal procedural common law rule encourage forum shopping? Does it lead to an inequitable administration of justice (would applying this law discriminate between citizens and non-citizens?)– Guaranty Trust v. York (gave original test); Hanna v. Plumer (gave modified test)
  4. The Byrd Exception: Would federal policy trump the application of the outcome-determinative test (Byrd v. Blueridge)?


  • Complaint: case-initiating pleading filed by a plaintiff
  • Answer: responsive pleading filed by the defendant that either denies the factual premises of plaintiff’s complaint or asserts an affirmative defense to the underlying claim. Could also include complaint against Defendant
  • Demurrer: Admits factual premise of the pleading to which it responds, but argues that the pleading or some part of it is legally insufficient; the pleading is wrong
  • Approaches to pleadings
  • Code pleading model (fact pleading): used by some states; more complicated than notice pleading.
  • Notice pleading: governed by Rule 8 of FRCP. Notice pleading is our focus in this class. More simplified.
  • Code pleading jurisdiction
  • Requirements for code pleading
  • First must plead the law with the elements of the cause of action
  • Needs to have key facts that supports each of the elements of the claim
  • The purpose of the complaint is to give notice to the defendant; code pleading jurisdictions give a detailed version of the claims against them
  • After a defendant gets notice, they can either give an answer (where you admit, deny, or give a counterclaim; list your affirmative defenses), or they can file a demurrer where you say theres a defect with the complaint
  • Bockrath v. Aldrich: Defendant filed a demurrer because there was a flaw in the claim. The plaintiff had to specifically show the elements of causation but failed to do so.
  • Notice pleading Jurisdiction (focus of the class)
  • Governed by Rule 8
  • Rule 8(a) states a pleading must contain 1) a short and plaint statement of the grounds for the court’s jurisdiction, 2) a short and plain statement of claim showing that pleader is entitled to relief, and 3) demand for relief sought
  • The complaint
  • Governed by rule 8(a)(2): “a short and plain statement of the claim showing the pleader is entitled to relief” (formal sufficiency)
  • There’s no standard form
  • There is no heightened standard for any claim except those listed in Rule 9 (which is fraud or mistake specifically)
  • A complaint can be plain and simple but it must be sufficient to survive Rule 12(b)(6)“failure to state a claim upon which relief can be granted” – motion to dismiss
  • How to survive a rule 12(b)(6) motion for dismissal (legal sufficiency)
  • Bell Atlantic v. Twombly: Once a claim has been stated adequately, it may be supported by showing any set of facts (meaning after the complaint has been accepted, they can use whatever facts they find/want) consistent with the allegations in the complaint
  • Need more than just speculation or conclusions; need enough factual matter to show an allegation is true
  • Flexible plausibility standard: need enough facts to make a claim plausible; amplification needed if not enough to make plausible
  • Ashcroft v. Iqbal: reiterated the Bell Atlantic rule. “To survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face”
  • A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw reasonable inference that the defendant is liable for the misconduct alleged
  • Threadbare recital of the elements of a cause of action, supported by mere conclusory statements, do not suffice
  • Only a complaint that states a plausible claim for relief survives a motion to dismiss
  • Determined by court’s common sense on their review of the content specific content
  • Northrop v. Hoffman: The failure in a complaint to cite a statute, or to cite the correct one, in no way affects the merits of a claim; factual allegations alone are what matters.
  • Kirksey v. R.J. Reynolds Tobacco: The factual claims must be plausible under some form of existing law
  • To summarize rule 8 v. rule 12(b)(6)
  • There’s no specific form but the facts must be a plausible claim
  • You must have formal and legal sufficiency
  • In terms of legal sufficiency, stating the elements is not enough, need to tie to facts
  • We look to rule 8 for form and 12(b)(6) for legality


  • Joinder of Claims: this is when parties that already exist in a case start adding claims
  • Compulsory counterclaims versus permissive counterclaims
  • Compulsory counterclaims: governed by Rule 13(a) – these are counterclaims that must be brought up in a suit because the counterclaim arises out of the same occurrence as the original claim
  • A compulsory counterclaim requires that the claim 1) arises out of the same transaction of occurrence that is the subject matter of the opposing party’s claim, and 2) does not require adding another party whom the court cannot acquire jurisdiction
  • Logical relationship test for determining whether the counterclaim arises out of the same transaction of occurrence
  1. The claims cannot be the same
  2. Legal basis for recovery; type of law
  3. The law involved
  4. Factual background; should be the same
  • Maturity Exception: the counterclaim has to exist at the time of the original claim
  • Exceptions that even if the claims share the same transaction of occurrence, cannot be a compulsory counter claim according to rule 13(a):
  1. claims the defendant did not possess at the time he answered the complaint and which matured or were acquired later (maturity exception)
  2. Claims that require the presence of third parties over whom the court cannot acquire jurisdiction
  3. Claims that were subject of another pending action at the time the action was commenced
  4. Claims by a defendant over whom the court has obtained only in rem or quasi in rem jurisdiction if that defendant has not filed any other counterclaims against the defendant
  • Hart v. Clayton-Parker and Associates, Inc.: Plaintiff claimed that the counterclaim was not a compulsory counterclaim because they did not share the same transaction of occurrence. Defendant said that the claim could be brought to court through supplemental jurisdiction under §1367. The court determined that they had to find out if the counterclaim was compulsory before they could determine if it had supplemental jurisdiction (1367 requires common nucleus of operative facts which is one of the requirements of the logical relationship test, so if the counterclaim is compulsory then it automatically has the same nucleus of operative facts)
  • Permissive counterclaims
  • Everything that doesn’t meet rule 13(a); wouldn’t be a waste of resources to bring a separate claim for this unlike a compulsory counterclaim
  • Cross-claims: governed by rule 13(g) – claims between co-parties (defendant seeking a claim against co-defendants)
  • Rainbow v. Atlantis Submarine: Ruled that when a defendant makes a cross-claim to another defendant, they become opponents and any new claims made by that new opponent relating to those transactions are actually compulsory counterclaims subject to rule 13(a) and not a cross-claim.
  • Joinder of Parties: adding additional parties to a case
  • Real Party in Interest (Rule 17)
  • Green v. Daimler Benz: According to rule 17 a case cannot be dismissed if the party in interest is not bringing the claim; the party in interest must just be added to the claim. This benefits the defendant because they do not have to defend themselves multiple times. Gives reasonable time for plaintiff to seek the real party in interest after the defendant objects.
  • Permissive Joinder of Parties (Rule 20(a)): to add parties there must be 1) the same transaction of occurrence between parties and 2) there is some question of law or fact that is common in all the claims. Court must also have subject matter jurisdiction
  • Exxon v. Allapattah Services: ruled that if a multiple parties are bringing a claim in diversity against a defendant, and one of the plaintiffs had original jurisdiction, but the other plaintiffs cannot meet the amount in controversy requirements, then for public policy reasons, all the plaintiffs have supplemental jurisdiction through that one plaintiff’s original jurisdiction
  • Test one must go through to determine this
  1. First have to look at 1367(a), which requires us to look at 1332 to determine if one plaintiff has diversity jurisdiction
    1. There must be complete diversity between all parties; controversy amount only needed for one (they make a public policy argument for how it changes constantly so not needed in these cases)
  2. If so, then 1367(a) asks if the claim by all plaintiffs share the same nucleus of operative facts
  3. If so, we move on to 1367(b) because this is a diversity case and look at the exceptions: Rule 14, 19, 20, and 24.
  • If this test is passed, then all parties can have supplemental jurisdiction even if not all the plaintiffs meet the amount in controversy
  • Compulsory Joinder: When a court orders that a necessary party be added to the claim since the original plaintiff did not add the necessary party and because the necessary party did not intervene. Sometimes the party cannot be added though because it would ruin subject matter jurisdiction, so the court will dismiss the case.
  • Rule 19 has three questions determining compulsory joinder:
  1. Is the absentee a required party whom the plaintiff must join if feasible?
    1. To determine this we must look at rule 19(a)(1)(A), 19(a)(1)(B)(i), and 19(a)(1)(B)(ii). If any of these are met, then the party is required
  • 19(a)(1)(A): In that person’s absence, the court cannot accord complete relief among existing parties is one requirement
  • 19(a)(1)(B)(i): Does the party have an interest in this action, and if he’s not allowed in this action, will not allowing him impede his own interest?
  • 19(a)(1)(B)(ii): would the party’s absence subject another party to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of interest?
  1. Assuming absentee is a required party, is it feasible for plaintiff to bring them into the suit? If so the plaintiff must amend her complaint to join absentee as an additional plaintiff/defendant.
    1. Is this person subject to personal jurisdiction, and if so, does adding the party no ruin subject matter jurisdiction? Rule 19(a)(1)

3) If it’s not feasible for party to be added, are there efforts the court can make to continue case, or must suit be dismissed?

  • This determined is a party is indispensable. We do this though balancing the four interests laid out by Rule 19(b):
  1. Will a judgment rendered in a person’s absence prejudice the absentee?
  2. Can the prejudice be lessened or avoided by protective provisions in judgment, shaping the relief, or other measures?
  3. Whether a judgment rendered in person’s absence would be adequate? Can there be complete, consistent, and efficient settlement of the suit without that absentee party?
  4. Will plaintiff have an adequate remedy if action were dismissed for non-joinder?


  • About sufficiency strength of the evidence and not the truth of the evidence. This is validity in summary judgment. If a judge is sitting in a spot to determine summary judgment, they cant sit in the shoes of a jury to determine if the evidence is true or not; the judge cannot do this, only the jury can. The only appropriate role a judge has is to say yes there is not a genuine issue of material fact (all the facts that are important to this case are not in dispute and because all the appropriate facts are not in dispute, then I can apply law). How does a judge do this? They evaluate the strength and sufficiency of evidence given by plantiff and the validity and strength of evidence given by the responds to the plaintiffs claim
  • A motion may be filed for summary judgment on the eve of trial within 30 days and will be granted if the judge find there is no genuine issue of material fact.
  • If Summary Judgment is filed, the burden of proof will shift to the other side to submit affirmative evidence that there is genuine issue of material fact for the jury to decide.
  • In demonstrating a genuine issue of material fact for trial they must now submit a legally sufficient evidentiary basis so that a reasonable jury could find in its favor by the relevant burden of proof in a trial – the preponderance of the evidence.
  • Remember, mere circumstantial evidence is not a legally sufficient evidence from which a jury could find irrationally economic behavior.


  • A case in which there has been a final judgment and is no longer subject to appeal
  • Once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment.
  • A defendant in a lawsuit may use res judicata as defense. The general rule is that a plaintiff who prosecuted an action against a defendant and obtained a valid final judgment is not able to initiate another action versus the same defendant where:
  • the claim is based on the same transaction that was at issue in the first action;
  • the plaintiff seeks a different remedy, or further remedy, than what was obtained in the first action;
  • the claim is of such nature as could have been joined in the first action

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This article contains general legal information but does not constitute professional legal advice for your particular situation. The Law Dictionary is not a law firm, and this page does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.