Civ Pro Hsieh Fall 2010
Notice (service of process)
Places you under the PJx of the court 1.
(waivable 4(d))
Dismiss with 12(b)(3)-(4)
Waived if no object. 12(g)(2), (h)(1) 2.
Federal
5th DPC (Mullane) and
a.
"reasonably calculated under all
circumstances to apprise interested parties”
FRCP 4 (see 4(e) for methods)
PJx
Power of the court over you
(waivable)
Federal
5th DPC and
a. General
i. Citizen (§1332 def),
ii. Consent, or
iii. Presence (Burnham pluralities)
1. Tradition or
2. Evolving fairness
iv. Systematic & continuous contacts
b. Specific (Shoe minimum contacts)
i. Amount, nature and quality of contacts
1. Purposeful availment of, and
2. Reasonably foreseeable
ii. Related to CoA, and
iii. Fair
FRCP 4(k): 4(k)(1)(A) = if PJx of state (see right)
1.
Cure by venue transfer (CL)
Dismiss with 12(b)(2)
Waived if no object. 12(g)(2), (h)(1)
2.
SMJx
Power of the court over your case
(cannot waive)
1.
These are only the two MAIN types
2.
Motion to remand in 30 days
§1447(c) to cure lack of SMJX or
procedural defects
Venue
Convenience over whole case
(waivable)
Dismiss with 12(b)(3)
Waivable by forum selection clause
1.
2.
State
14th DPC (see left),
State RCP, and
State
14th DPC (see left), and
State long arm statute
a. General = may or may
not allow "gotcha Jx"
b. Specific = one-step (ex.
CA where long-arm
collapses into DPC) or
two-step
Diversity SMJx (except probate and domestic relations), or
US Const. Art. III § 2 (boundaries of power) = minimal diversity
28 USC § 1332 (Congress’ authorization defining original Jx--narrower than
Const.)
i.
Complete diversity of citizenship at time of filing (Strawbridge)
and
1.
Individuals (presumption of continuing domicile)
§1331(a)(1)-(3)
a.
Are physically, and
b.
Intend to remain indefinitely (CL)
2.
Corporations §1332(c)(1)
a.
Inc. and
b.
PPB (nerve center) (Hertz)
3.
Other (Belleville)
a.
LLC = partnership
ii.
Anchor claim > $75k for each D §1332(a) (Exxon)
Federal Qs SMJx (primary ways for SMJx, but not only two)
a.
US Const. Art. III § 2 (power) = arising under US law/const.
b.
28 USC § 1331 (authorization)
i.
Well-pleaded complaint (Motley)
1.
"Arising under" narrowly construed (CL) or
2.
Substantial question (FTB)
a.
b.
Dismiss with 12(b)(1)
Removal
(State Ct --> Fed Ct)
To give Ds access to fed protections
1.
2.
1.
a.
b.
c.
28 USC §§ 1441, 1446-47 (purely statutory!)
Within 30 days of service or becoming removable §1446(b)
Notice of removal (not a motion) to district court §1446(a)
Diversity exceptions
i.
No D can be a citizen of the state §1441(b)
ii.
Within 1 year of filing (extended with good cause) §1446(b)
Purely statutory!
1.
Proper venue:
a.
Any district where D resides if all Ds in same state §1391(a)(1), (b)(1) 
literal?
b.
Substantial part of events/omissions/property §1391(a)(2) and (b)(2)
c.
Iff not 1 or 2, then:
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Waived if no object. 12(g)(2), (h)(1)
2.
i. If only diversity, any district where any D is subject to PJx §1391(a)(3)
ii. If not only diversity, anywhere any D is found §1391(b)(3)
Transfer by motion for:
a.
Convenience and justice §1404 or b. Improper venue § 1406
--------------------------------------INTRODUCTION TO DUE PROCESS----------------------------------------
1. Sources of authority
a. Constitution (often a floor which can be legislated above)
i. 14th Amendment DPC (states)
ii. 5th Amendment DPC (federal)
b. Precedent and common law
i. Binding and persuasive
c. Statutes (USC 28 = judiciary) (Note: 42 US 1983 = how to sue state for deprivation of Con. Rights)
d. Federal/state rules of civil procedure
i. FRCP/FRAP = Promulgated by SCOTUS but adopted by Congress’ silence
2. Values
a. FRCP 1 = “just, speedy, and inexpensive determination”
i. Fairness
vi. Consistency
ii. Equality
vii. Meaningful participation
iii. Efficiency
viii. Dignity
iv. Finality
ix. Accuracy
v. Transparency
x. Impartiality
b. Tension between speed/cost and justice
The Lingo
GRANT/DENY motions
DISMISS claims/complaints
AppCt. AFFIRM/REVERSE/REMAND
MOTION TO STRIKE if improper/untimely
DEFAULT JUDGMENT if no answer (R55)
-------------------------------------------------------OPPORTUNITY------------------------------------------------------DPC = “nor be deprived of life, liberty, or property without due process of law” (5th and 14th)
1. Mathews test = what process if due under DPC? (originally for administrative proceeding for benefits)
a. Case-by-case basis
b. Balance:
i. Risk of error and value of additional procedural safeguards
ii. The importance to the private party
iii. The importance to the government (including the cost burden)
c. Pros/Cons
i. + Realistic appraisal of the significance of procedural costs, flexible for many scenarios
ii. -- Results-oriented / favors the government, judicial guessing game (requires extra hearings),
doesn’t take dignity, equality or tradition into account (too scientific)
2. Hearings
a. Hamdi = Citizen detained as combatants need notice and habeas corpus, but lower evidence hurdles
b. Before seizing property? Not required by the DPC if statutory safeguards provide real judicial
discretion such as bond or quick post-seizure hearings (Mitchell)
3. Right to a lawyer when:
a. The stakes are high enough i.e., personal liberty (so for all criminal, but not all civil trials)
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i. Presumption that if personal liberty isn’t at stake you don’t need a lawyer (Lassiter = as
applied, DPC does not require right to counsel in parental termination proceeding because it wouldn’t change
the outcome)
b. The hearing is confusing (Walters = $10 lawyer $ limitation does not violate DPC b/c low risk of error, generally)
-------------------------------------------------------------NOTICE------------------------------------------------------------Places you under the PJx of the court (waivable by returning waiver or failing to raise it in time)
Federal court = 5th DPC and FRCP 4
State court = 14th DPC, state constitution, and state rules of civil procedure
1. DPC
a. Must satisfy Mullane standard= “notice reasonably calculated, under all the circumstances, to
apprise interest parties…” NOT actual notice
i. If notice failing to reach D is unusual, then ok (Greene = posting on doors in public housing--thereby
satisfying state statute- is not “reasonably calculated” because they knew postings were taken down and there
was an inexpensive, efficient alternative, i.e. certified mail)
ii. Applies to notice for all issues of due process, not just service
iii. Publication is ok if whereabouts are unknown (Mullane)
2. FRCP 4
a. Actual notice (or even the most likely to notify) is not necessary or sufficient (Mid Continent =
technicalities of FRCP 4 need to be met. It doesn’t matter if D had actual notice P tried diligently, or D evaded service)
b. Service of process
i. Complaint and summons 4(c)(1)
c. Methods of service
i. Personal delivery 4(e)(2)(A)
ii. Copy at dwelling or usual place of abode w/ one of reasonable age and discretion 4(e)(2)(B)
1. Can have more than one, just need sufficient indicia of permanence (Khashoggi =
spent a lot of time and money fixing up his NY home, so it’s an “abode”)
d.
e.
f.
g.
2. Where personal belongings are (even if you travel) (CL)
3. Not where you only stay for business (CL)
4. Temporary stay elsewhere doesn’t change your usual abode (CL)
iii. Delivery to an appointed agent 4(e)(2)(C)
iv. Any method that applies in the forum state’s courts or state where service is made 4(e)(1)
When 4(m)
i. Within 120 days of filing complaint (can be extended for good cause)
Who 4(c)(2)
i. Anyone over 18 not a party to the action
OPTION: Waiving service 4(d) (if D does not waive, P must still serve D)
i. Incentive: gives 60 days to respond to complaint if D waives (instead of 21)
ii. Preferred practice (if D doesn’t waive and can’t show good cause, then fees 4(d)(2))
iii. Effect = can’t complain about insufficient service or process later
Notes
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i. Need proof of service
ii. Documents subsequent to process are served more leniently (FRCP 5)
-----------------------------------------------------------------PJx----------------------------------------------------------------Power of the court over you (waivable)
Federal court = 5th DPC and federal long-arm FRCP 4(k) (aka PJx over those subject to Jx of state court)
State court = 14th DPC, state long-arm statute (one-step like CA or two-steps), and state constitution
1. Types
a. General (for any COA)
i. Citizens of (§1332 def)/corporations Inc. or PPB (nerve center) in forum state
1. DPC = enough minimum contacts
2. State Statute = always exists, but is not part of long arm b/c not reaching
ii. Consent (waiving PJx by not challenging it at the first opportunity)
iii. Presence (in-state service)
1. DPC
a. Tradition/“gotcha PJx” (Scalia Burnham plurality = ok for NY D to be sued for
divorce in CA because he was served while in CA on business/visiting kids)
b.
Evolving standards of fairness/“transient PJx” (Brennan Burnham plurality
= ok b/c NY D purposefully availed himself of CA by visiting, easy with modern travel,
and foreseeable because of tradition)
2. State Long Arm Statute
a. May or may not allow for gotcha/transient PJx (CA = DPC so ok)
b. Specific (only in relation to this COA)
i. Consent (waiving PJx by not challenging it at the first opportunity)
1. Appointing an agent (Szukhent = Mich. farmers appointed agent in NY through contract with
NY equipment renter ok because no conflict of interest)
2. Choice of forum
a. Prima facie valid—high burden of proof to claim unfairness (The Bremen =
forum clause as part of huge contract between 2 big international firms was obviously
thought about)
b. Can overturn for policy considerations:
i. If contract wasn’t valid because of fraud, undue influence, or
overweening bargaining power
ii. If there wasn’t notice, the dispute is essentially a local one, or the
forum is remote and alien
c. Even if you aren’t a business (Carnival = cruisers didn’t satisfy high burden of
proof and it’s reasonable for the company to have forum clauses which benefits
passengers with reduced fares)
i. Are form contracts with consumers really “consent”?
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ii. Minimum contacts / long arm statute (see below)
c. In personam = PJx over your person
d. In rem = PJx over a thing
e. Quasi in rem = PJx over you through thing (Pennoyer = state only has power over ppl and things inside it)
i. No longer valid! (Shaffer = need minimum contacts for all PJx, can’t sue Ds in DE only because they
had stock there… now DE long-arm gets directors and officers but b/c of their contacts, not stock)
2. DPC: Shoe 3-Prong Minimum Contacts test (see continuum below)
a. Purpose
i. Must have minimum contacts with forum state when COA accrued so the suit does not
offend traditional notions of fair play and substantial justice since you could have
foreseen being haled into court for such an action
b. 3-prong test
i. Amount, nature and quality of contacts
1. Purposeful availment
a. Voluntary act to purposefully benefit from the forum state
b. Contrast w/ unilateral act of 3rd party (VW = customers took car from NY to OK)
2. Reasonably foreseeable
a. In contrast with mere foreseeability where it is only imaginable
3. If commerce and not sold by D to directly P… (Asahi pluralities—for products only!)
a. Stream of commerce (Brennan)
i. Knowing it will end up there is enough to meet purposeful
availment since D is benefiting and a suit is foreseeable
b. Stream of commerce + (O’Connor)
i. Knowing is not enough to meet purposeful availment, need
additional showing D purposefully directed actions toward forum
state (like advertising, help lines, special designs)
ii. Relatedness of contacts with lawsuit
iii. Fair play and substantial justice (burden shifts to D to prove it’s unfair…only in
extraordinary cases [like Asahi where the burden on Japanese D who sold to a Chinese D, not a US one,
is severe, and P is not even from the forum and had already obtained relief from other Ds])
1. Burden on D to litigate in forum
2. Forum state’s interest in the claim
3. P’s interest in obtaining relief in the forum
4. Interstate efficiency (procedural—if no other state can take it then get rid of it!)
5. Interstate social policies (substantive, like preservation of family bonds)
3. Long Arm Statute
a. Federal = FRCP 4(k)
i. Anyone who is subject to PJx of the state
b. State
i. CA = one-step (to limits of DPC)
ii. Others restrain their reach
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4. Challenging PJx
a. Direct attack (special appearance)
i. Appear only to challenge the court’s PJx over you (not the merits)
b. Collateral attack (ignore service and waive answer)
i. Default judgment (FRCP 55) will be entered and D loses the right to appeal on the merits
5. Note
a. US Constitution Article IV “Full Faith and Credit” clause = need to respect valid judgments of
other states (Balk = NC can’t ignore a proper judgment by MD and make D pay twice)
6. Minimum Contacts Continuum
No
contacts
Related
COA
No PJx
Unrelated
COA
No PJx
Isolated (depending on their nature)
Regular but not
substantial
Systematic
and
substantial
General PJx
Specific PJx
No PJx
Specific PJx
· Gray = OH sold valves
to Penn water heater who
sold to Ill. Resident
· McGee = Insurance
company solicited 1 CA
resident for business by
mail
· Calder = FL writer
should have foreseen
being sued for libel by
CA target in CA
· VW = NY sold car to NY
resident who crashed in OK
(unilateral act of 3rd party)
· Asahi = Not fair to sue in
CA for Japanese parts sold
to Taiwanese manufacturer
for sale in CA motorcycles
· Kulko = not foreseeable
for NY father to be sued by
wife who moved to CA
· Pavlovich = passive
positing online by TX
resident that harms CA
business through unilateral
acts of 3rd parties (measure
site interactivity and
commercial nature)
· Shoe = 12 salesmen who
show samples and solicit
orders, so it’s fair
· BK = Long term contract
with Fl choice of law btwn
Michigan resident and FL
corp. shows personal
availment
· Keeton = regular monthly
sales of magazine in NH
means NY resident can be
sue OH corp. there for libel
No PJx
No PJx
General PJx
(by definition)
---------------------------------------------------------------SMJx--------------------------------------------------------------Power of the court over your case (cannot waive)
Federal court = limited original SMJx through §§1331-1332 and US Constitution Art. III § 2
State court = general SMJx (concurrent SMJx by 10th Am. except for those in exclusive SMJx of feds)
1. Diversity vs. Federal Qs as a means to original federal SMJx
a. Diversity cases are less welcome as shown by the limits on removing them, > $75k requirement,
§1391(a)/(b)(3) distinctions, and 4(k)(2)(A)’s catch-all
b. While the substantive law that governs follows the suit, you may prefer:
i. Jury pool
ii. Rules of civil procedures
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iii. Docket backlog
iv. Judges
2. Diversity SMJx
a. Purpose = notion that states prefer their own so it’s not fair for foreign D to fight where P has
home-field advantage
i. Exceptions (b/c “local” concerns)
1. Probate (but federal courts can hear actions related to property in probate)
2. Domestic relations claims (but federal courts can hear tort actions arising within)
b. US Const. Art. III §2 (boundaries of power), and
i. All cases where the parties include citizens of different states (minimal diversity SMJx)
c. 28 USC §1332 (authorization by Congress defining original Jx under US Const. Art. III §1)
i. Complete diversity at the time of the filing of the lawsuit/petition for removal
(Strawbridge) and
1. Theory
a. All Ps must be diverse from all Ds (dismiss nondiverse parties to cure)
b. Disregard citizenship of (CL):
i. Parties who are properly in federal court on a federal qs claim
ii. Nominal parties (non viable claims)
iii. Foreigners
c. See §1332 for aliens, insurers, estates, and infants/incompetents
2. Individuals §1332(a) citizenship = domicile (residence needed but not sufficient)
a. Where you 1) are physically and 2) intend to remain indefinitely (CL)
i. Fact-finding mission to determine intent (indicia of domicile
sufficient but not necessary)
1. College ≠ intent, but doesn’t hurt (Mas = student in Ill. With
intent to move to LA is still a citizen of Miss.)
2. Marriage does not necessarily change citizenship (Mas =
wife’s domicile does not change when she marries a French national)
b. Presumption of continuing domicile (CL)
i. Retain last citizenship until both prongs for a new state
ii. Can be “stateless” (CB ex. living abroad with intent to stay and no indicia of
3. Corporations
a. §1332(c): PPB and Inc.
i. PPB = “nerve center” (Hertz) i.e. where decision makers are
(brain over brawn)
4. Other
a. LLC (Belleville)
i. Not a corporation
ii. Equated to a partnership for purposes of diversity Jx
b. Need to know the citizenship of every investor/partner
ii. Anchor Claim on each D > $75,000 §1332(a)
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1. Theory
a. P’s good faith claim controls (burden on D to disprove) (CL)
i. Doesn’t matter if P is eventually awarded nothing §1332(b)
b. Includes intangible damages like injunctions (CL)
i. Asses value of injunction to P or cost of complying to D
2. Aggregation (joinder) (CL and §1367)
a. 1 P can add multiple claims against 1 D to get > $75k
b. 1 P cannot add claims against multiple Ds to get > $75k under §1367(b)
i. Must meet > $75k for each D alone
c. Multiple Ps cannot add multiple claims together to get > $75k against 1 D
i. But if 1 P has a claim against D worth > $75k, then related claims
of additional Ps can be joined (Exxon)
3. Federal Question SMJx
a. Purpose = to allow definitive interpretation of federal law
b. US Const. Art. III §2 (power), and
i. “Arising under” (broad):
1. US Constitution, or
2. US laws or treaties
c. 28 USC §1331 (authorization under US Const. Art. III §1)
i. “Arising under” (narrow)
ii. Well-pleaded complaint = P must allege:
1. Constitutional violation,
2. Violation of federal law, or
3. Substantial question of federal law (FTB)
a. Where P’s relief necessarily depends on the resolution of a substantial
question of federal law
b. Can’t claim federal qs in anticipation of a counterclaim (Motley = breach of
contract claim that P guessed would be defended as required by an act of Congress.
Federal claim doesn’t have to be addressed since the contract could be void)
4. Removal (no constitutional authority, just 28 USC §§1441, 1446, 1447)
a. Purpose = To give Ds access to the protections of the federal system as well
b. Who = All defendants (CL)
c. What = Actions that could have been brought in district court §1441(a)
i. If one claim is removable and others are not § 1441(c)
1. All can be removed or
2. Court can decide to remand all matters in which state law dominates
d. When = Within 30 days of service upon D or of becoming removable §1446(b)
e. Where = BUILT IN VENUE. To the DCt. in the district and division of the state court §1441(a)
f. How = File notice of removal w/ federal court (state court immediately loses power) §1446(a)
g. After removal
i. If no SMJx, court shall remand §1447(c) (can only remand if case had been removed)
ii. P can file motion to remand within 30 days of removal §1447(c) for any other defect
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1. Procedural problems with removal (improper place/method, not timely, diversity
exceptions not followed…)
iii. Remand is not reviewable, but failure to remand is §1447(c)
1. P should also file interlocutory appeal or extraordinary writ of mandamus
(Caterpillar = considerations of finality and efficiency trump as long as federal Jx requirements
are met when the judgment is entered)
iv. If P seeks to join Ds to destroy diversity, court can deny or remand §1447(e)
h. Diversity Jx limits
i. Not removable if any D is citizen of state §1441(b) (state not prejudice against its own)
ii. Not removable more than a year after initial filing §1446(b) (can be extended for good
cause [CL])
i. Federal Qs limits
i. Non-federal qs claims can be joined and removed, or district court can remand claims
where state law dominates §1441(c)
-------------------------------------------------------------VENUE-------------------------------------------------------------For convenience and justice (waivable by failing to raise it or forum selection clauses)
Federal court = 28 USC §§ 1391-1392 (no constitutional authority)
State court = state statutes
1. Venue generally §1391
a. Can have multiple venues or none at all
b. Turns on residence (contrast with citizenship for diversity)
i. Residence of corporations §1391(c) = NEED FACTS
1. Any district where it has PJx at filing if district were a state (general where inc.)
2. If no such district, then where most significant contacts
c. If diversity then 3-part test §1391(a)
i. If all Ds reside in same state then any district where any D resides §1391(a)(1)
1. Spirit of law is to limit to geographic area Ds hold in common
2. But literally may go beyond if a corporate D is in many states
a. Ex. Corp. D is inc. in CA w/ PPB in NV. D2 is in N.D.CA. Venues = any
in CA and even D.NV (although that’s pushing it)
ii. Where §1391(a)(2):
1. Substantial part of events/omissions giving rise to COA occurred or
2. Substantial part of the subject property (real property)
iii. IFF not 1 or 2 then any district where any D is subject to PJx at filing §1391(a)(3)
1. General (gotcha Jx counts) or specific PJx related to the COA
d. If not just diversity then 3-part test §1391(b)
i. Same as above
ii. Same as above
iii. IFF not 1 or 2 then any district where any D is found
1. Easier than §1391(a)(3) and consistent with preference for federal qs SMJx
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2. Transfers (substantive law follows)
a. When? With or after other objections (or they are waived).
b. If in proper venue (If a case has been removed then it is in the “proper” venue)
i. Standard of convenience + justice as long as it could have been there originally §1404(a)
1. P’s choice weighs heavily, but if all Ds agree and witnesses/evidence are there…
2. When? Any time! Although at some point it’s not longer convenient
ii. How
1. All parties agree §1404(b)
2. Sua sponte §1404(a)
iii. Take the law with you! (good for forum shopping)
c. If in improper venue
i. Dismiss 12(b)(3) or transfer in the interest of justice §1406(a) (ex. statute of limitations)
ii. Lose the law when you transfer
d. Forum Non Conveniens = dismiss so it can be brought in a foreign court if only proper place
3. Note: CA districts = ND (San Fran), ED (Sac), CD (Los Angeles), SD (San Diego)
----------------------------------------------------------PLEADINGS---------------------------------------------------------
1. History
a. Writ system: needed to plead one claim in one particular category in law ($/jury) or equity
(specific performance/judge)
b. Code pleading: plead facts supporting each element of a claim, not evidence or legal conclusion
c. FRCP in 1938
i. Merged law and equity
ii. Requires notice pleading and plausibility, not facts for each element (see below)
2. Generally
a. Allowed 7(a)(1)-(7)
i. Complaint/3rd party complaint
ii. Answer to complaint/counterclaim/cross claim (i.e. D against D)/3rd party complaint
iii. If the court orders one, a reply to an answer
b. Form 10(a)-(c)
c. Can plead in the alternative 8(d)(2)-(3)
d. Construed so as to do justice 8(e)
3. Complaint
a. Purpose
i. How wide the gate should be (efficient/economical)
ii. Notice pleading for D and court (scope and framing for discovery)
iii. Commences the action FRCP 3
b. Must contain:
i. Short and plain statement of Jx 8(a)(1)
ii. Short and plain statement showing entitlement to relief 8(a)(2)
1. Used to be possible (Conley = not dismissed unless there’s no set of facts to support P’s claim)
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2. Now must be plausible (Twiqbal = more than possible but less than probable in all cases)
a. Ignore legal conclusions but take facts as true
b. Don’t need to meet all elements of a prima facie case (Swierkiewicz)
3. Example = Form 11
a. After Twiqbal, these facts are plausible for a car accident but not for
something less familiar
iii. Demand for relief sought 8(a)(3)
c. Heightened pleading 9(b)
i. For fraud or mistake, must plead those circumstances with particularity, although
conditions of the mind may be pled generally
ii. Leatherman = no heightened pleading outside Rule 9(b)
d. Does it meet pleading standard? Consider:
i. Asymmetrical access to information pre-discovery
ii. Cost/benefit of discovery
iii. May want to be vague in order to survive 12(b)(6), but specifics help get specific answers
4. Answer
a. Serve within:
i. 21 days after being served summons and complaint 12(1)(A)(i) or
ii. If waived under 4(d), 60 days after request for waiver was sent 12(1)(A)(ii) or
iii. 14 days after court denies a motion or more definite statement is served 12(4)(A)-(B) or
iv. 14 days after service of amendment (if more than time remaining for original) 15(a)(3)
b. Must contain:
i. Admissions 8(b)
1. Not in contention so related evidence is not admissible (Fuentes = amended answer day
of trial to admit to negligence but P still proved circumstances of the car wreck = not ok)
ii. Denials
1. Must fairly respond to substance 8(b)(2)
a. Need to be clear about what you’re denying/admitting or ineffective
denial (Zielinski = denied big paragraph that included negligence and ownership, but
wasn’t clear to P that ownership was denied. Statute of limitations barred P so equitable
estoppel meant D was held liable anyway—ok because D and real D had same insurance)
2. General 8(b)(3) / Specific 8(b)(4)
3. Absence has effect of an admission 8(b)(6)
iii. Lack of Knowledge
1. Effect of a denial 8(b)(5)
c. Avoidance/Affirmative Defenses 8(c)
i. Burden on D
ii. Must be raised before trial to avoid unfair surprise (Ingraham)
iii. 8(c)(1) is not exhaustive
1.
Ingraham = limitation on damages is an avoidance (allegation of new matter which, admitting the
facts, shows cause why they should not have their ordinary legal effect)
2. Gomez = qualified immunity is an avoidance, not prima facie case…about knowledge asymmetry
d. Other defenses (these—and these only—can also be raised in motions):
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What
Where
When
Lack of SMJx §§ 1331-1332 & Art. III 12(b)(1)
Any time 12(h)(3)
Lack of PJx 4(k) and DPC
12(b)(2)
First chance or waived 12(g)(2), (h)(1)
Improper venue §§ 1391, 1404, 1406
(also waived by forum selection)
12(b)(3)
First chance or waived 12(g)(2), (h)(1)
Insufficient process 4(a)-(c)
(also waived by returning waiver)
12(b)(4)
First chance or waived 12(g)(2), (h)(1)
Insufficient service 4(d)-(e)
(also waived by returning waiver)
12(b)(5)
First chance or waived 12(g)(2), (h)(1)
Dismiss for failure to state a claim 8(a) 12(b)(6)
Through trial 12(h)(2)
5. Replies
a. Court can order a reply 7(a)
i. Must be served within 21 days after being served with the order to reply 12(a)(1)(C)
ii. Lets heightened pleading in the back door
b. Also 12(e) motion for a more definite statement if complaint is vague
i. Must be obeyed within 14 days after notice of the order
6. Notes
c. Pretrial conferences can affect deadlines FRCP 16
d. Default judgment if D has failed to plead or otherwise defend FRCP 55
7. Amendments
e. Pre trial
i. Once as a matter of course:
1. 15(a)(1)(A): 21 day after service or
2. 15(a)(1)(B): 21 days after service of responsive pleading or 12(b), (e), or (f)
motion (whichever is earlier)
ii. All other cases only with 15(a)(2):
1. Opposing party’s written consent or
2. Court’s freely given leave when justice requires
f. During trial
i. If objection:
1. Court should freely permit amendments if they will aid in presenting the merits
and not prejudice the other party on the merits 15(b)(1)
ii. If no objection, then express or implied consent = as if it were in the pleading 15(b)(2)
g. Relation back (only matters when statute of limitations bars an amendment)
i. Adding claims 15(c)(1)(B)
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1. Can have different legal theories, but needs to “arise out of” same factual situation
(Barcume = first sexist hiring and then sexual harassment = no relation back)
ii. Adding parties 15(c)(1)(C)
1. As long as:
a. The added party has constructive notice within 120 days of filing and
15(c)(1)(C)(i)
b. The added party should have known it would have been sued absent
mistake 15(c)(1)(C)(ii) (not just not knowing!)
2. Depends on what the party to be added knew or should have known, not the
amending party’s knowledge (Krupski = P sued the wrong version of the cruise ship co. and
knew the other existed, but don’t conflate knowledge of party’s existence with absence of
mistake—can be unaware of its role)
3. Can add parties after a case has gone to judgment, but they must be given notice
and the opportunity to respond (Nelson = need to follow Rule 15’s niceties)
------------------------------------------------------------MOTIONS-----------------------------------------------------------
1. General
a. A request for a court order must be made by motion 7(b)(1)
b. Must be in writing 7(b)(1)(A) and state:
i. With particularity the grounds for seeking the order 7(b)(1)(B)
ii. Relief sought 7(b)(1)(C)
c. Must be joined if available 12(g)
2. Possible motions:
a. Judgment on pleadings 12(c)
b. More definite statement pointing out defects and details desired 12(e)
i. Before filing a responsive pleading
ii. Must be obeyed within 14 of order or pleading is stricken
c. To strike redundant, immaterial or scandalous matters 12(f)
i. Sua sponte 12(f)(1)
ii. Any time before response or 21 days after service if no response needed 12(f)(2)
3. Possible defenses (see chart ↑ in ANSWER)
4. Notes
a. Pretrial conferences can affect deadlines FRCP 16
b. Default judgment if D has failed to plead or otherwise defend FRCP 55
---------------------------------------------------------SANCTIONS---------------------------------------------------------1. Rule 11 (whether what’s in the lawyer’s mind when he signed the paper was objectively reasonable)
(Franzt = focus on offending party, not the moving party’s response)
a. Elements
i. TRIGGER?
1. Signed paper 11(a) (everything must be signed or will be stricken) (Young = read
papers entirely/in context)
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a. Submitted or
b. Later advocated 11(b)
i. Only oral statements that relate directly to a paper and are
discussed in furtherance of the matter
2. That was formed after an inquiry reasonable under the circumstances (Business
Guides = signing denotes merit, so you better be sure a law clerk can’t prove your facts wrong in
10 minutes)
3. And that:
a. is presented for improper purpose 11(b)(1)
i. Politics / bully pulpit (but if it also had merit, like gay marriage?)
ii. Isn’t every suit to harass? Isn’t hoping for a settlement efficient?
iii. Filing for discovery is ok (Arista = needed univ. to name IP addresses)
b. has claims not warranted by existing law or frivolous arguments for
changing the law 11(b)(2)
i. All a matter of timing…Brown v. Board was frivolous before
c. has no evidentiary support for facts (and will likely not have any after
discovery) 11(b)(3) (Kraemer = enough that attorney hired a PI and was stonewalled
by Ds—reasonable to think facts could have been justified after discovery)
i. **Tension with FRCP 8**
1. Need to show plausibility for FRCP 8, but need to know
more for FRCP 11
2. Can lose on 12(b)(6) but not be liable under 11 (and can
win and still be liable under 11(b)(1))
d. has no evidentiary support for factual denials 11(b)(4)
ii. ON WHOM? May lead to sanctions on:
1. Attorneys / unrepresented parties 11(c)(1)
2. Law firms (held jointly responsible) 11(c)(1)
3. Represented parties 11(c)(1), but no $ sanctions for frivolous legal claims
11(c)(5)(A)  ok for pro se parties
iii. HOW?
1. The moving party files a separate motion 11(c)(2):or
a. Specifically describing the conduct,
b. Served under Rule 5 and
c. Filed only after 21 day safe harbor where the offender can:
i. Withdraw or
ii. Correct the offending paper
2. Sua sponte with show cause hearing 11(c)(3)
iv. WHAT SANCTION? (more lenient with pro se litigants)
1. Limited to what suffices to deter (nonmonetary, $ to court, or costs) 11(c)(4)
2. If $, then not sua sponte unless show cause order before voluntary dismissal or
settlement 11(c)(5)(B)
3. Note: order imposing sanction must describe conduct and explain basis 11(c)(6)
(Mattel = can’t sanction for “boorish behavior” during of Barbie-thrower during discovery, so had
to remand for a more specific order)
v. NOTE: Inapplicable to discovery 11(d)
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b. Standard of review by higher courts
i. Deferential (they are more familiar w/ it, so only overturn if abuse or clearly erroneous)
ii. De novo (Cooter and Gell [1990] mentioned in Saltany v. Bush dissent)
c. Policy = Respect for the court / efficiency (deterrence) / make litigants whole
d. Evolution of 11(c):
1983-1993
1993-present
“Shall impose” sanctions if a violation is found
11(c)(1): “May impose” sanctions if a violation is found
Every Rule 11 motion was filed
11(c)(2): 21 day safe harbor
No sua sponte sanctions
11(c)(3): sua sponte leads to a show cause hearing
“Appropriate sanction”
11(c)(4): sanctions limited to what suffices to “deter”
Law firms were not liable
11(c)(1): law firms are held jointly responsible
2. Comparing Sanctions
Rule
Trigger?
On whom?
How?
What sanction?
DISTRICT COURT
FRCP 11
Signed paper submitted or advocated

(not discovery) that is:

1. for an improper purpose

2. legally frivolous
3. without evidentiary support for facts
4. w/out evidentiary support for denials
28 USC
1927
Unreasonable/vexatious multiplication of Counsel
proceedings
Power to manage its own affairs…
Inherent
Authority Can only award costs if:
*try to use
1) Acted in bad faith or vexatiously
rules first*
2) Willful disobedience
Attorney Separate motion +
Law firm 21 day safe harbor
OR
Party
Sua sponte with
show cause hearing
Anyone
Limited to what
suffices to deter
(nonmonetary, $
to court, or costs)
Sua sponte
Costs
Sua sponte
(Chambers = even if
other rules will do)




Separate motion
OR sua sponte, w/
Costs or double
costs
Vacate/dismiss
Discipline
Disbar
Costs
APPEALS COURT
FRAP 38
Frivolous appeal
Anyone
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opportunity to
respond
5. Sanctions and values
a. Sanctions promote:
i. Efficiency (use of court resources)
ii. Fairness (don’t harass the other side)
b. Sanctions hinder:
i. Fairness (safeguard access to courts and justice)
ii. Equality (sanctioning the less resourced)
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