12(b)

Defenses to claims must be asserted by responsive pleadings if required.  But certain defenses may be asserted by motion:

• lack of S/M jurisdiction
• lack of personal jurisdiction
• improper venue
• insufficient process
• insufficient service of process
• failure to state a claim upon which relief can be granted
• failure to join a party under Rule 19
  • Rule 19 = required joinder of parties

12(h)

• Challenges to territorial jurisdiction need to come first but need not be alone
• Can be filed at same time answer is filed

• applies in State court
• challenges to territorial jurisdiction need to be made first and alone
• must be filed before answer

Rule 55

• If party doesn't appear in court, default judgment may be entered against him
• Default judgment addresses merits, not jurisdiction
• However, upon retrail a court may set aside the judgment at the judge's discretion
• Policies
  • judicial efficiency - can't relitigate on the merits
  • comity - deferring to prior court's judgment on merits

• Applies to in rem and quasi-in-rem actions
• just like special appearance rule in that it must be first and alone
• but merits of anticedent personal claim can be attacked (quasi-in-rem)

Traditional Doctrine: Immunity if lawsuit is the only thing bringing party into the state

Test: if you could step outside the state and not be subject to service of process, then you were not subject to service just for coming into state for purpose of lawsuit

• Policies:
  • don't want people distracted during litigation
  • immunity encourages attendance
  • preserves dignity of the court

Killed in most cases but still applies in cases of fraud and force (viewed as exception rather than rule)

• Policies
  • consent: non-res defendant consented to come into state so consents to service

12(b)(1)

• SMJ deals with the competency of the court to render a decision, while TJ speaks to the power of the court over a person or property.
• A party can challenge SMJ at any time

8(d)

• A party may set out 2 or more alternative statements of a claim/defense alternatively, or hypothetically
• if alt. statements are made, pleading is sufficient if any one of the statements is sufficient 

§ 1332

• present when opposing parties are citizens are different states
• diversity must be complete: opposing parties cannot be co-citizens w/ any other opposing party
• Mimimum amount in controversy: >$75k
• Federal diversity is necessarily jurisdiction that deals w/ state claims

§ 1331

Gives the federal court jurisdiction over state events that arise under federal law (constitutional, treatises, and statutes).  Used to be amount in controversy requirement but there isn't anymore.

• Some federal question jurisdiction is exclusive (can only be be tried in federal court) but most is concurrent

§1441

Removal is the means by which the defendant, rather than the plaintiff, can invoke federal S/M jurisdiction (like if they don't want to be in the dirty state court)

• (a) removal is to the federal district court in which the state action is filed
• Fed. district court must have original jurisdication that comes only from plaintiff's complaint, not from counterclaim.  But, overwhelming policy considerations, as in Caterpiller, can change this rule (overwhelming policy consideration of judicial efficiency outweighed the fact that Fed Ct. didn't have original jurisdiction at time claim was filed, but did have it before judgment)
• (b) in a diversity case, can't remove if defendants are residents of the forum state
  • doesn't apply to federal question b/c we're not concerned w/ giving parties a neutral forum in federal question matters
• (c) when suit involves one or more claims, one of which is removeable, then the entire suit is removeable.  
  • only applies to federal question jurisdiction b/c Congress wanted to clip the wings of diversity jurisdiction
• (f) Removal jurisdiction doesn't mean the case has to fall in Fed. Ct's exclusive jurisdiction - can fall w/in concurrent jurisdiction

Elements:

• common nucleus of operative fact
• two claims asserted by one party - one jurisdiction-conferring and one jurisdictionally-deficient
• both claims asserted against one party

• Jurisdictionally-deficient claim needs to have a home (i.e. could be brought in state court)
  • Ex. of jurisdictionally deficient claims that don't have home in state court: Federal exclusive domain legislation (SEC legislation)
• Need pendant jurisdiction only if there are non-diverse parties and/or non-diverse amounts

Policies in support:

• efficiency/economy

Against:

• comity (1367(c): judge may decline to exercise jurisdiction if there is a novel question of state law or issue of state policy)
• violates federal court's limited jurisdiction
• expands jurisdiction of federal court/invades state domain
• simplicity
  • multiple claims before jury might confuse them

Crazy example: Diverse parties - plaintiff brings 2 claims, one that meets min diversity amount and one that doesn't.  Courts have held that in this situation, claims should be aggregated to meet the min diversity amount (no longer in pendant jurisdiction)

Best way to understand is to focus on the jurisdictionally-deficient claim.

• Requires common nucleus of operative fact
• jurisdictionally-deficient claim is asserted by a person (party or non-party) other than the person who asserts the jurisdiction-conferring claim
• the jurisdicitonally-deficient claim can be asserted against a party or non-party

Policies in support

• efficiency/economy
• day in court/fairness

Policies against

• extends/expands Fed's limited S/M jurisdiction
• violates policy of judicial simplicity

One party that asserts both claims, but the claims attack different parties

• requires common nucleus of operative fact

Section 1367

Purports to codify common law understanding of big pendant jurisdiction (pj  + aj + ppj)

(a): general rule is that a dist. ct. can exercise jurisdiction over a jurisdictionally-deficient claim if it has a common nucleus of operative fact

(b): provides a limited mandatory exception to sj that applies only to plaintiff and only in diversity cases.

• When the jurisdiction-conferring claim is diversity, plaintiff can't use pendant jurisdiction

Rules Restricted (NO PJ)

• Rule 14 (impleader)
• Rule 19 (mandatory joinder)
• Rule 20 (permissive joinder)
• Rule 24 (intervention)

Claims still allowed (PJ OK)

• 13(a) (compulsory counterclaims)
• 13(g) (cross-claims by one defendant against another)
• 13(h) (joinder of additional parties to compulsory counterclaims)

(c): 4 situations where trial court should (but doesn't have to) decline sj:

• novel or complex question of state law (comity)
• jurisdictionally-deficient claim predominates over conferring claim
• dist. ct. has dismissed all claims over which it has original jurisdiction
  • this is too broad so courts break it down into pre-1367 law:
  • jurisdiction-deficient claim should be kept if jurisdiction-conferring claim was dismissed on non-jurisdictional grounds
• compelling reasons

(d): 30 day tolling provision for dismissal claims.  Extends State's statute of limitation.

Section 1447(c) - mandatory remand rule (corollary to permissive remand of 1367(c)): if at any time it appears dist. ct. doesn't have S/M over jurisdiction-conferring claim, it must remand

• even though this purports to be a mandatory rule, it may be overcome by policy of judicial efficiency (i.e. Caterpiller)

No real policy behind 1367 except to clip the wings of diversity jurisdiction

Permits a federal court to decline jurisdiction where policy dictates that it would be wiser to defer to a state court

• Anti-Injunction Act (Sec. 2283): Federal court may not grant an injunction to stay proceedings in a state court except:
  • as expressly authorized by an act of Congress
  • where necessary in aid of its jurisdiction
  • to protect or effectuate its judgments

Huffman/Younger Doctrine (State 1st - Traditional Abstention): Federal court should abstain from enjoining pending state court proceeding if:

• defendant can make adequate federal defense in state court proceeding AND
• abstention would not cause irreperable injury to defendant

Trainer v. Hernandez holding: Unless extraordinary circumstances were present warranting federal interference (not found here) or unless state remedies were inadequate to litigate their federal due process claim- then comity and federalism say state shouldn’t be interfered with.

Policies:

• Comity
• Equitable restraint

Pullman Abstention Doctrine (Federal 1st and raises unsettled serious state issues): Federal court should abstain b/c of comity.

• Rather than abstaning, can also certify to highest state court (if there's a certification statute)

  § 1391(a)

(1)Venue is only proper in the district where any defendant resides if all defendants reside in the same state

(2) proper where substantial events or property giving rise to the claim occurs (note: more than one venue can be proper when substantial events occur in multiple places)

another note: these parts are the same under 1391(a) and 1391(b)

(3) proper in judicial district in which any defendant is subject to personal jurisdiction at the time action is commenced if there is no district in which the action may otherwise be brought (can only be brought under 3 if can't be brought under 1 or 2).  If defendant subject to personal jurisdiction in many different districts, any of them is proper for venue.  This section usually used in international litigation.

Hypo: plaintiff = US citizen in France, gets in car accident while there.  Sues D1, who is owner of the car and a resident of France.  Also sues D2, driver of the car and resident of England.  D2 has jurisdictional contacts in Western District of CA.  Venue is proper in Western Dist. of CA b/c of D2's contacts.  1332(a)(2) gives S/M jurisdiction.  Action can only proceed against D2 b/c D1 not amenable to process.

Section 1391(b)

clauses 1 and 2 are the same as diversity venue

(3) Last resort - only applicable if (1) and (2) are not.  Fixes venue in any district where defendant may be found.  Note: no time limitation here, unlike in diversity venue.  "May be found" = nationwide venue is proper, but it really means where defendant is subject to personal jurisdiction, b/c w/o pj, you don't need venue (just like diversity, but minus time limit).

Hypo: all defendants reside in different states (so no venue under clause 1).  And the situs of the action takes place in another district (so no venue under clause 2).  Then we go to clause 3.

1. Start w/ S/M jurisdiction

if one federal court has S/M, then all federals do (diversity, federal question, supplemental)

2. Personal jurisdiction

Where is the defendant subject to pj (old bases and long arm)

3. Venue

Clause 1: are all defendants residents of the same state?

If not, go to clause 2

Clause 2: can venue be exercised where situs of action took place/property is?

If not, go to clause 3

Clause 3: Where defendant is subject to pj at the time the action is commenced (diversity), or any time (federal question)

Section 1391(c)

residence of a corporation for venue

• if a state has only one district, corporation is deemed to be resident of that district if subject to personal jurisdiction at time action is commenced
• if state has >1 district, corporation is resident of any district in which it has contacts sufficient to establish personal jurisdiction if that district were a different state
• if the corporation doesn't have sufficient contacts to establish personal jurisdiction in a multi-district state, then corporation is deemed to be a resident in the district in which it has the most significant contacts (if S, O, and S are in 3 different districts, O wins)

Section 1441

If an action is being removed from state court, it goes to the district court that the state court is in

• Federal question can always be removed

• If it is diversity jurisdiction, defendant cannot remove if s/he is a resident of forum state.
  • Purpose is to give defendant a neutral forum - if defendant is a resident of forum state, s/he has home court advantage which is better

Transfer is the federal version of forum non conveniens.

Differences are that:

• cases aren't dismissed, they're transferred
• transfer is an intra-jurisdictional tool; whereas FNC is an inter-jurisdictional tool

1404(a) presupposes proper venue:

For convenience, district court can transfer to another district court where action might have been brought

• contains a clause allowing transfer "in the interest of justice" - if a court wants to allow a change in venue, it can find a way to do it in the interest of justice; it doesn't have to be where the action might have been brought.

12(b)(3): dismissal for improper venue.  Motion to dismiss subject to first appearance rule.

1406(a): if venue is improper, case can be dismissed or transferred.  Request is subject to the first appearance rule.

• Technically appeal could be taken from final decision of district court under final judgment rule (1291)
  • Dismissal is a final decision
• But appeal on the grounds of improper venue is unlikely to succeed if trial proceeds to judgment on the merits - if motion to dismiss for improper venue is denied, would want to file for interlocutory appeal and if that doesn't succeed, file for writ of mandamus

Swift v. Tyson

categorizes law into 2 categories:

Local law: includes statutory law and in-rem actions

General law (Federal common-law): non-statutory in personam actions

Under Story's view, Federal courts have to follow local laws and State courts have to follow general laws.

Policies behind local/general split:

• Prevention of forum shopping
  • Is forum shopping so bad?  No one seems to mind it horizontally, so why vertically?
• Uniformity
• stability
• Federalism - proper allocation of powers favoring comity
  • local matters defer to states
  • general matters defer to fed
• certainty/predictability
• fairness (w/ respect to non-residents)

Intrinsic value to dichotomy?

• For both Story and Blackstone, there was an idea that the common law was transcendental body of law that exists outside of any particular state so there was no need for fed to defer to state

Framework:

• State domain (substantive law)
  • exclusive state domain: Constitutional grant of authority to regulate under police powers (e.g. in rem, marriage)
  • concurrent Fed/State doman: Constitutional grant of authority to Congress but Congress fails to act

• Federal domain
  • procedural law
  • substantive law (Exclusive Federal Domain): Constitutional grant to Congress and Congress has acted (Federal Question)

• If it falls in the state domain, state law must be followed
• But if it falls in the concurrent fed/state domain, state law is followed unless a strong federal interest outweighs
• Federal law only exists as statutory law - there is no federal common law
  • except that there is - Court applies it in Fed/State domain (Court used it to decide a case the same day as Erie)

What policy governs the hesitation of Court to apply Federal law in the concurrent Fed/State domain?

• Separation of powers - although Congress has the power to make law here, the Court does not.
  
  • Congress is beholden to the people of the state, so intrusion into state corpus juris is less severe
  • Decision purported to come from comity standpoint, but it's really a matter of separation of powers.

You can have an Erie question w/in Federal Exclusive domain

• in the context of interpreting a statute
  • ex: statute uses the term "minor" - court will have to decide whether to use state or federal definition of the term

Rules Enabling Act of 1934

• Not an act of Congress - if it were, it would be a substantive matter falling under Excl. Fed. Domain and there would be nothing to decide in Sibbach
• Prior to the Enabling Act, federal courts adhered to the Conformity Act which mandated that fed cts apply state procedural law
  • Pre-Erie, substantive law was Federal common law (Swift v. Tyson)
  • procedural was state (Conformity Act)
• In 1938, things changed:
  • substantive law: State law (Erie)
  • procedural Federal law (Enabling Act)
    • Enabling Act says that rules which modify/abridge/enlarge substantive rights are invalid

How do you know what is substantive/procedural?

• Sibbach v. Wilson:
  • defines substantive as important/substantial
  • Where there is an invalid rule of federal procedure, the Conformity Act controls, which applies state procedural law
    • though the Conformity Act is officially dead, it's only dead like federal common law - still applies where there is invalid FRCP

• Guaranty Trust
  • developed outcome determinative test for whether FRCP applies
    • where a choice between fed & state rule or procedural practice would effect the outcome of the case, then the FRCP violates substantive rights and state procedure applies

• Byrd
  • Even though a procedural rule effects substantive rights, a federal court can apply FRCP if there is a strong federal interest at stake (similar to balancing test in concurring fed/state domain)

• Hanna
  • Stands for the proposition that a FRCP cannot be outside of the Rules Enabling Act or unconstitutional b/c of method of adoption
    • put into effect by Supreme Court under a grant of authority by Congress
    • saying a FRCP could be unconstitutional is like saying God could do evil
  • if you have a federal rule that's on point, you follow it no matter what (favors federal supremacy)
  • if you don't have a federal rule that's on point, but you have a federal practice which is outcome determinative, that's when you apply the state law unless there is a strong federal interest at stake (Byrd)

First determine whether or not the claims are the same using one of two tests

• Same Primary Right rule: whether the claims involve the same primary right
  • The decision of whether a claim involves the same primary right is an arbitrary one so the court often looks at the end-game to decide how it wants the case to come out (level 2)
• NY rule: whether rights established in the first action would be impaired or diminished by a decision in the second action

• If the claims are identical, it's BIG RES JUDICATA, which means that constituent issues that make up the claim are also precluded

• Big RJ precludes not only claims and issues which were actually ltigated, but also those which weren't but could have been

5 elements:

• same claim/COA
• same parties (or those in privity)
• judgment must be valid when rendered (i.e. TJ, S/M J, venue)
• finality
• judgment must be on the merits
  • if case is dismissed on procedural grounds, RJ does not apply (exception for exception):
  • exception: rule 41(b) if you fail on procedural grounds, and have an involuntary or other dismissal, it operates as an adjudication on the merits (RJ applies)
    
    • BUT a court can note that dismissal is w/o prejudice
    •  AND certain dismissals can never be dismissed w/ prejudice:
      • lack of jurisdiction
      • improper venue
      • failure to join a party under rule 19

Example: McNulty

• First claim was to quiet title
• second claim was for damages for wrongful possession of property
• Both involve same primary right of property ownership

More specific application of big rj

relitigation of precisely the same claim (claim preclusion)

involves different claim/COA but same issue

3 requirements:

• whether the issue was actually litigated (presented to the court)
• whether the issue was necessary to the judgment (supports the judgment)
• whether the issue was actually considered (court made a determination)

Because CE requires that the issue be litigated, it doesn't preclude issues that could have (but were not) brought

Note: in the Winters case, they didn't go by the 3 requirements b/c there was an overwhelming policy consideration of comity and they wanted to respect the state court's decision

• Different COA
• some of the same issues
• new parties

• CE applies regardless of mutuality so long as it's fair

• party opposing has burden of showing it's not fair 
  • ex:if defendant didn't have full and fair opportunity to litigate issue once (i.e. different dollar amounts in controversy or different procedural safeguards)
• strong presumption toward defensive CE being fair b/c it gives plaintiff an incentive to join all parties
• remember, CE can only be applied to a person who has litigated and lost

Rule 13(a): compulsory

• compulsory if claims arise out of same transaction/occurence
• if compulsory claim isn't asserted, it's barred by RJ

Rule 13(b): permissive

• counter-claims are unrelated
• if claim isn't allowed to be joined, claim can probably be brought up later
  • if it's not compulsory, it means it's not from the same transaction or primary right so RJ does not apply

18: you can join as many claims as you want as long as you have S/M J

42: The court can join or sever claims

Rule 82: the FRCP do not extend or limit the venue/jurisdiction of the district courts

Rule 14

• Allows a party to assert a claim against a non-party
• mandatory exemption under 1367(b)
• blame shifting device:
  • 14(a) allows defendant to bring in another party
  • 14(b) allows plaintiff to bring in another party to shift the blame to when a claim is brought against plaintiff

Rule 13(g)

• Cross-claims can be brought if they arise out of same transaction/occurence
• always permissive

Can a jurisdictionally-deficient cross claim be sustained if the jurisdiction conferring claim was dismissed?

• Yes, if the conferring claim was dismissed on non-jurisdictional grounds
• But even if it's dismissed on jurisdictional grounds, it may still be sustained if there are overwhelming policy considerations of judicial efficiency

Rule 24

Intervention is when a non-party attempts to jump into the action

• (a) Intervention of right: denial of intervention would, as a practical matter, impair/impede party's ability to protect his/her interest
  • judge may deny intervention if party is already adequately represented by existing parties (whether the party has a friend in the court)
• (b) permissive intervention: requires common question of law or fact
  • court can use its discretion in whether intervention will unduly delay/prejudice the adjudication of the rights of the original parties

Rule 22

Statutory:

• Sections 1335, 1397, 2361
• provides for nationwide service of process and venue
• requires only minimal diversity jurisdiction
  • diversity between two adverse claimants
  • jurisdictional amount must be at least $500
  • stakeholder has to deposit the fund into the court or give a bond in its place

Rule 22

• governed by ordinary rules for jurisdiction and venue
  • requires complete diversity
  • jurisdictional amount must be >$75k

Two types of interpleader: limited fund and classic

Limited fund:

• must be statutory (can't use rule)
• can only use limited fund interpleader to protect against early or disproportionate depletion of the fund - not really interpleader, but action in the nature of interpleader

Classic interpleader

• can be brought under statutory or rule interpleader
• multiple liability issue (mother daughter life insurance example)

No bills of peace (bringing everyone into one court) under either interpleader

Rule 23(a)

• numerousity
  • no specific # - judges have a lot of discretion in certifying a class
• commonality
  • common question of law/fact
• typicality
  • claims/defenses of representative parties must be typical of the rest of the class
• adequacy of representation

23(b)

• (1) joinder of necessary parties
  • must show that each class member has an interest that would be impaired
  • same requirements as Rule 19(a)
• (2) when the predominant relief sought is declarative/injunctory
  • added to allow for civil rights class action suits
  • can bring claims for damages here but that can't be the predominant form of relief
• (3) spurious (most common) - class action would be superior to achieve economies of time, effort, and expense
  • also want to effectuate a uniformity of judicial lawmaking
  • reasonably identifiable parties must be given opt-out option