Professor Freer Fall 2000 Civil Procedure Outline PART I: PERSONAL JURISDICTION: In what state can plaintiff sue

the defendant (geographic location)?

3 Type o! Juri diction A. In Per on"# Juri diction: Courts power over defendant personall . $. In Re# Juri diction: Courts power over propert . C. %u" i In Re# Juri diction: Courts power over propert . D. %u" i In Re#& Juri diction: Courts power over propert . ' type o! Per on"l Juri diction St"te( Po)er E!!ect Juri diction"l Notice Predic"te In persona! Person Personal Consents to %ervice of o"ligation #urisdiction$ process in that over presence in foru! state an thing the state$ or a where ou are owned resident of the "eing sued& state include cop of co!plaint ' su!!ons In re! Propert %ei(ure of %ei(ure of propert at the propert at outset of outset plus litigation pu"lication )uasi in re! Propert *eter!ines %ei(ure of %ei(ure of who owns propert at the propert at propert outset of outset plus "etween litigation pu"lication individual parties )uasi in re!+ Propert An %ei(ure of %ei(ure of dispute propert at the propert at could "e outset of outset plus )I,+ case. litigation pu"lication -udg!ent li!ited to value over .s propert in that state. I.

A. In Per on"# *. +ener"l: !oru# ," -uri diction over de!end"nt !or cl"i# t,"t "ro e "ny),ere in t,e )orld. .. Speci!ic: !oru# only ," -uri diction over de!end"nt !or cl"i# t,"t "ro e in t,e !oru#. i. Penoyer v. Ne!!/U.S. *0112: Suit *: 3itc,ell v. Ne!! /*0452:0itchell sued 1eff in an 2regon %tate Court$ alleging that 1eff owed hi! a"out 3240.00 in attorne fees. 1eff was not personall served5 rather service was " pu"lication in local newspaper. 1eff did not appear and default #udge!ent was issued. A !onth later$ 1eff ac6uired so!e land in 2regon that was deeded to hi! fro! the 7nited %tates govt. 0itchell had sheriff sei(e and sell the land to satisf the #udge!ent. 0itchell "ought the land at a sheriffs auction$ got a sheriffs deed and later sold the land to Penno er. Suit .: Pennoyer v. Ne!! /*0112: 1eff sued Penno er in federal court$ arguing that the sale was invalid "ecause the 2regon court lac8ed #urisdiction over hi! (Collateral Attac8). 9he %upre!e Court agreed and held that 2regon lac8ed #urisdiction in 0itchells suit "ecause there was no personal service of process on 1eff in 2regon. 9erritorialit %tate sovereignt In Persona! /"2 3"in Point : Pre ence: served with process in state & general #urisdiction A6ent: service of process on agent is #ust as good as service on defendant Do#icile: if defendant is do!iciled in a foru! state$ the foru! has general #urisdiction over that person$ regardless of whether he is ph sicall served. :ou can "e sued if our per!anent ho!e is located in that state even if ou are in our te!porar ho!e$ "ecause ou have a per!anence or connection to that state. 3illi7en v. 3yer /U.S.*8'92 Con ent: ;<press consent " = waiving defense contracting not raising 6uestion of personal #urisdiction ii. :e v. P"lo) 7i /U.S. *8.12: . negligentl and wantonl drove a !otor vehicle on a pu"lic highwa in 0ass. 9he vehicle struc8 and in#ured >. 9rial court entered #udg!ent in favor of >$ %upre!e -udicial Court overruled. %upre!e Court overruled and affir!ed trial court. %upre!e Court upheld #urisdiction over . "ased on a statute that treated driving in the state as i!plied consent to suit there on clai!s arising fro! that driving. I#plied Con ent: t"te t"tute (ever state has)= if ou drive in our state$ and are involved in a wrec8$ ou have appointed a state official for service of process.

iii. ;" ,in6ton v. Intern"tion"l S,oe Co#p"ny /U.S. *8'52: 9he court upheld in persona! #urisdiction over a nonresident defendant "ased on s ste!atic and continuous contacts with the state. In International %hoe$ the defendant was a *elaware Corporation head6uartered in %t. ?ois. It e!plo ed /@ salespeople in Aashington who solicited orders and the were paid " co!!ission. Although it had no per!anent office in Aashington$ the sales there generated co!!issions of at least 3@/$000a ear. Aashington sent registered !ail to notif corporate office in %t. ?ois. 9he state clai!ed that International %hoe was o"ligated to contri"ute to the states une!plo !ent co!pensation fund in a!ounts proportionate to the activities of its salespeople. 9he Court upheld Aashingtons #urisdiction$ "ased on the volu!e and s ste!atic contacts within the state$ as well as the a!ount the clai! was directl related to the level of activities in the state. t"te ," -uri diction over de!end"nt i!: <I! t,e de!end"nt =e not pre ent in t,e !oru#> "nd ," uc, #ini#u# cont"ct )it, t,e !oru# o t,"t t,e e?erci e o! -uri diction doe not o!!end tr"dition"l notion o! !"ir pl"y "nd u= t"nti"l -u tice.@ +ener"l -uri diction: continuous and s ste!atic is enough to assert #urisdiction.

iv. 3c+,ee v. Intern"tion"l Li!e In . Co. /U.S. *8512: A California citi(en purchased a life insurance polic fro! an Ari(ona insurance Co!pan . A 9e<as insurance co!pan later too8 over the Ari(ona co!pan . Ahen it too8 over$ the 9e<as co!pan !ailed a reinsurance certificate to the California insured. 9he insured in turn sent his pre!iu!s fro! Cal. 9he insured died in Cal.$ and dispute arose concerning polic . Beneficiaries sued 9e<as insurance co. in Cal. %tate ct. 9here was no evidence that . had ever solicited "usiness in Cal. Apart fro! this particular polic . 3"in point : Solicit"tion: *efendant solicited "usiness in California. Rel"tedne : Between defendants contact with the state and this cause of action / peci!ic -uri diction2. St"te( intere t: one of Californias citi(ens has "een hurt "ecause of defendants failure to pa $ so the had an interest in providing a foru!. AAA u66e t olicit"tion> rel"tedne > "nd t"te( intere t in providin6 " !oru# i "ll relev"nt in " ertin6 -uri diction. v. :"n on v. Den7l" /U.S. *8502: *ora *onner created a trust while she was do!iciled in Penns lvania. 9he trust instru!ent was e<ecuted in *elaware$ na!ing a *el. "an8 as trustee. *onner later !oved to Florida and designated the recipients of the trust. Following her

death$ dispute developed "etween fa!il !e!"ers who inherited trust and trust "eneficiaries. *onners will was pro"ated in Florida$ and under Florida ?aw$ the *el. "an8 was a necessar part to litigation. *id Florida have #urisdiction over *el. "an8? 3"in point : De!end"nt( cont"ct )it, t,e !oru# #u t involve: Purpo e!ul "v"il#ent: defendant !ust reach out to the foru! in so!e wa . CCCUnil"ter"l "ct of a third part is not enough. vi. ;orldB;ide Col7)"6en Corp v. ;ood on /U.S. *8092: 9he ,o"insons "ought a new Audi fro! %eawa $ a dealership in 1ew :or8. 9hen the left 1ew :or8 for a new ho!e in Ari(ona$ "ut en route were involved in a fier crash in 28laho!a. Alleging that the in#uries sustained were aggravated " AudiDs negligent place!ent of the gas tan8 and other fuel s ste! design defects$ the ,o"insons "rought an action in federal court in 28laho!a against %eawa and Aorld&Aide. 3"in Point : Dor ee"=ility that product will get to state is not enough5 forseea"ilit that defendant will "e ,"led into court is relevant (forseea"ilit defendant will "e sued in the foru!). No Per on"l Juri diction =ec"u e: No purpo e!ul "v"il#ent No !or ee"=ility> Court held it was not foreseea"le "ecause car got to 28laho!a through the unil"ter"l "ct of (plaintiffs "ringing the car there) a third part . vii. $ur6er Ein6 v. RudFe)ic7F /U.S. *8052: ,ud(ewic($ a 0ichigan resident$ contended the Florida Court lac8ed personal #urisdiction over hi! even though he had long conducted "usiness in Florida and his franchise contract held that it was to "e governed " Florida law. All periodic pa !ents for licensing and franchising were sent to Florida. ,ud(ewic( defaulted on the o"ligations$ and Burger Eing "rought a diversit suit against ,ud(ewic(. 3"in point : 3u t Loo7 At 3ini#u# Cont"ct An"ly i : Purpo e!ul Av"il#ent: #u t ,"ve " relev"nt cont"ct or no -uri diction. AAA$"l"ncin6 Sc"le: F%tronger showing of fairness can su"stitute for a lower level of contact.G *efendant deli"eratel reached out "e ond 0ichigan and negotiated with a Florida Corporation for a long&ter! franchise and the !anifold "enefits that would derive fro! affiliation with a nationwide organi(ation. D"irne "nd Re" on"=lene : o De!end"nt( =urden: is inconvenient for defendant to co!e to Florida$ "ut not unconstitutional. Due Proce does not sa foru! has to "e the "est place. *efendant !ust show that it is o 6r"vely di!!icult "nd inconvenient that the defendant is at a severe disadvantage in the litigation. Si#ple econo#ic di p"rity is not enough H

 Dore ee"=ility: ,ud(ewic( refusal to !a8e the contractuall re6uired pa !ents in 0ia!i$ and his continued use of Burger Eings trade!ar8s$ caused foreseea"le in#ur to the corporation in Florida. 9herefore$ it is presu!ed reasona"le for ,ud(ewic8( to "e called into court in Florida to account for his in#uries. viii. A ",i 3et"l Indu try Co.> LTD v. Superior Court o! C"li!orni"> Sol"no County /US *8012: Asahi$ a -apanese Corporation appealed fro! a decision of the California %upre!e Court discharging a pere!ptor writ issued " the appeals court 6uashing service of su!!ons in Cheng %hins inde!nit action$ contending that there did not e<ist !ini!u! contacts "etween California and Asahi sufficient to su"stain #urisdiction. 9he evidence indicated that Asahis sales to Cheng %hin too8 place in 9aiwan$ and ship!ents went fro! -apan to 9aiwan. %ales to Cheng %hing never a!ounted to !ore than /.4I of Asahis inco!e. Appro<i!atel 20I of Cheng %hins sales are in California. Stre"# o! Co##erce: ),en o#eone end o#et,in6 directly to one pl"ce "nd end up in "not,er pl"ce. *efendant !a8es valves in %tate A$ and sells the! to waterheater !anufacturer in %tate B. 0anufacturer ta8es valves and puts in their waterheaters and sends to %tate C. C"n De!end"nt =e ,eld into Court !or Stre"# o! Co##erceG *ont 8now (%plit 2pinion= H es$ H no$ and / undecided). o H -ustices said= If our reasona"l anticipate ite! will get to another state$ that is contact o H -ustices said= %tea! of co!!erce with 8nowledge is not enough. A defendant !ust= !aintain offices or agents that provide regular advice to custo!ers in the foru!5 advertise in the foru!5 !ar8et product through a distri"utor who has agreed to serve as the sales agent in the foru! state (Asahi didnt have an thing to do with Cheng %hins distri"ution s ste!$ which "rought the tire valve asse!"l to California)5 or design the product especiall for !ar8et in foru! state. i?. $urn,"# v. Superior Court /US *8892: 9he Burnha!s lived in 1ew -erse . 9he separated$ the wife and children !oved to California. 0rs. Burnha! filed a divorce action in California on grounds of irreconcila"le differences. At one point$ 0r. Burnha! ca!e to California on "usiness. Afterwards$ he went to the %an Francisco Ba area to visit his children. Je too8 the older child to %an Francisco over the wee8end and upon returning the child ho!e$ he was served with a California court su!!ons and a cop of his wifes divorce petition. Je then returned to 1ew -erse . I Pre ence Alone O7"yG 3o t li7ely (%plit 2pinion= H es$ H no$ and / undecided). J. Sc"li" "nd 3 ot,er Ju tice : o Presence alone is enough (it has its own test for #urisdiction) o 0ini!u! Contacts Anal sis does not appl to presence cases 4

 J. $renn"n "nd 3 ot,er Ju tice : o Presence alone is not enough o 0ust "e anal (ed in 0ini!u! Contacts Anal sis= Purposeful Avail!ent Fairness and ,easona"leness ?. :elicoptero N"cion"le v. :"ll /U.S. *80'2: Plaintiffs are the relatives of the H A!ericans that died in a helicopter crash. *efendants are ConsortioKA%J$ Bell Jelicopter$ and Jelicol. Plaintiffs are suing for wrongful death. +ener"l Juri diction: defendants did not have enough su"stantial s ste!atic continuous contact with foru!. $. In Re# H %u" i In Re#: states #urisdictional "asis is over defendants propert (real or personal) in the state. AAA#"ny lon6"r# do not #eet de!"#"tion> o in re# "nd Iu" i in re# i u ed. i. S,"!!er v. :eitner /U.S. *8112: %haffer (one of the 2L defendants in first suit) is appealing case against Jeitner. Jeitner is filing a shareholders derivative suit against Mre hound su"sidiaries$ officers and directors "ecause he clai!s the have "een negligent in their duties. Mre hounds principal place of "usiness is in Phoeni<$ AN$ "ut the are incorporated in *elaware. 9here are 2L defendants and 2/ of the! own stoc8 in *elaware. *elaware sei(ed the propert " putting stop transfer orders on the "oo8s. 9he stoc8 was considered to "e in *elaware$ and su"#ect to sei(ure " *elaware Code (Code !a8es *elaware the site of ownership of all stoc8 in *elaware Corporations). Code states that a court of the state can ta8e #urisdiction of a lawsuit " se6uestering an propert of the defendant that happens to "e located in *elaware. %upre!e Court held that !ini!u! contacts test "e should "e e<tended to in re! and 6uasi in re! cases. 3"in Point : %u" i In Re# c" e : !ust !eet test under Intern"tion"l S,oe. Pre ence o! Property: presence of propert in state alone is not enough$ !ust !eet !ini!u! contacts anal sis= o Purpo e!ul Av"il#ent o D"irne "nd Re" on"=lene In Re# C" e : presence of propert in state is enough "ecause if propert is "efore the court$ it has power over the propert . Penno er. AAA"l)"y do #ini#u# cont"ct te t !or in re# J Iu" i in re#. II. Dull D"it, "nd Credit Cl"u e HArticle IC o! t,e Con titution Full Faith and Credit shall "e given in each %tate to the pu"lic Acts$ ,ecords$ and -udicial Proceedings of ever other state. In Per on"#: personal o"ligation over defendant to pa and #udg!ent can "e enforced an where in the countr (can sei(e propert to satisf #udg!ent)

 In Re#H%u" i In Re#: onl enforcea"le to the e<tent the court had #urisdiction. AAA9here is an e<ception to full faith ' credit for #udg!ents rendered without in persona! #urisdiction$ therefore cannot "e enforced in another state.

PART II: NOTICE AND OPPORTUNITK TO $E :EARD

Due Proce reIuire de!end"nt =e 6iven notice "nd opportunity to =e ,e"rd. *. Notice: ever state has their own rules for providing service of process$ so!e adopt the federal rules. .. Opportunity: to "e heard is governed " the procedural rules of that state or the federal govern!ent. I. . ReIuire#ent o! Notice A. Service o! Proce : St"tueHRule ' Federal ,ules of Civil Procedure (did not e<ist "efore /P@L) $. Con titution"l ReIuire#ent: notice !ust "e constitutional

A. Service o! Proce : Rule '/"2>/=2>/c2/*2 Con i t o! t)o docu#ent : /*2 u##on "nd copy o! /.2co#pl"int *. u##on : for!al court docu!ent that e!anates fro! the cler8 of the court and gives notice to defendant telling the! (% !"ol of govern!ent power)= the have "een sued$ the have 20 da s to respond$ and conse6uences of not responding .. ;,o Serve Proce : '/c2/.2 an non&part who is at least /L rs. old. 3. ;,en Do )e Serve Proce : '/#2 !ust "e served within /20 da s of filing of co!plaint$ if not case shall "e dis!issed without pre#udice. Case is not dis!issed unless good cause can "e shown5 the court shall e<tend service of process "e ond /20&da rule. '. :o) to Serve Proce : '/e2/.2 Personal service= wal8 up to defendant hand it to hi!. A"ode service or su"stituted service= o *efendants usual a"ode or dwelling house o %erve so!eone of suita"le age and discretion who resides there AAA*oesnt specif age$ and doesnt have to "e a relative o Co!!on law rule= If agent is appointed in state !a serve process on agent. 5. ReIue t o! ;"iver o! Dor#"l Service: '/d2 we can !ail the process to the defendant " first class !ail$ postage prepaid$ and the defendant can return a waiver for! within @0 da s after it is sent to her. If defendant does waive$ she waives for!al service of process onl . If defendant does not waive for!al service of process$ plaintiff !ust= o %erve personall $ or

o A"ode service or su"stituted service AAA*efendant pa s the cost of such service 4. Ot,er 3et,od o! Proce in Deder"l Court : '/e2/*2 Pursuant to the law of the state in which the district court is located 7se an !ethods allowed " the court of the state in which defendant is served 1. ;,ere c"n proce =e ervedG %ervice is good throughout the state where district court is located 0. 3et,od o! Proce Upon Corp. "nd A oc.: " delivering a cop of su!!ons and co!plaint to An officer$ or A !anaging or general agent$ or 9o an other agent authori(ed " appoint!ent$ or B an agent authori(ed " law to receive service of process. 8. C"n Deder"l Court ervice proce out ide t"te line : '/72/*2/"2 2nl if state law authori(es it '/72/*2/$2 does not appl to serving process on an original defendant (2nl applies to necessar parties or i!peding parties onl ). *9. I##unity To Service o! Proce : ;ven though a defendant is present in a state as a part $ witness$ or as a law er in another case (different lawsuit)$ we are i!!une for! service of process. *efendant can onl go into state$ do "usiness and leave. Force and Fraud= If defendant in state when served "ecause he was tric8ed$ forced$ or frauded into the state$ he is i!!une fro! service of process. %a""ath= so!e states recogni(e i!!unit fro! service or process on the %a""ath da . $. Con titution"l St"nd"rd Dor Notice *. 3ull"ne v. Centr"l :"nover $"n7 J Tru t Co. /*8592: 1ew :or8 %tatute provides pooling of s!all trusts estates into one fund for invest!ent ad!inistration. Court entered #udg!ent sa ing all "eneficiaries are estopped fro! co!plaining against trustee and the court will set the ad!inistration fee owed to trustee. 7nder statute in 1ew :or8$ all was re6uired was pu"lication notice. 3"in Point : 0ust use a for! of notice of service of process that is reasona"l calculated under all circu!stances to apprise the defendant of the suit. ,easona"le ti!e in which to respond (,ule H(!) within /20 da s after filing of co!plaint) 1otice " pu"lication !a "e o8a (for e<a!ple= if there is no wa we can find the defendant "ecause no agent of process$ no place of a"ode$ etc.)

o Plaintiff will "e re6uired to give an affidavit sa ing he cant find defendant.

P"rt III. SU$JECT 3ATTER JURISDICTION: In ),"t Court in t,"t t"te "re )e 6oin6 to proceed> !eder"l court or t"te courtG
A. St"te Court : can hear an cogni(a"le clai! in the world$ e<cept e<clusive federal 6uestion #urisdiction (ad!iralt $ patent law$ antitrust$ cop right$ federal tort clai!s act cases$etc). $. Deder"l Court: has li!ited su"#ect !atter #urisdiction. Article III. L .: the #udicial power shall e<tend to all Cases$ in ?aw and ;6uit $ arising under this Constitution$ the ?aw of the 7nited %tates$ and 9reatises !ade$ or which shall "e !ade$ under their authorit 5 &to all cases affecting A!"assadors$ other pu"lic 0inisters and Consuls5 &to all Cases of ad!iralt and !ariti!e -urisdiction5 &to Controversies to which the 7nited %tates shall "e a part 5 &to Controversies "etween two or !ore %tates5 &"etween a %tate and Citi(ens of another %tate5 &"etween Citi(ens of different %tates5 &"etween Citi(ens of the sa!e %tate clai!ing ?ands under Mrants of different %tates$ and "etween a %tate$ or the Citi(ens thereof$ and foreign states$ Citi(ens or %u"#ects. C. Concurrent Su=-ect 3"tter Juri diction: cases that satisf su"#ect !atter #urisdiction in "oth state and federal court. I. . Eind o! C" e T,"t C"n +o to Deder"l Court: Diver ity o! CitiFen ,ip (2L 7%C R /@@2) Deder"l %ue tion (2L 7%C R /@@/) A. Diver ity o! CitiFen ,ip: L *33./"2/*2 T)o ReIuire#ent : 0ust "e "etween citi(ens of different states A!ount in controvers !ust e<ceed 3Q4$000 (or 3Q4$000.0/) i. Str")=rid6e v. Curti /US *0942: Co#plete Diver ity Rule: there is no diversit if an plaintiff is a citi(en of the sa!e state as an defendant. AAA1o plaintiff can "e a citi(en of the sa!e state as defendant. Co!plete *iversit !ust "e present when case is filed *ont care a"out parties "efore or after$ onl when case is filed. Do#icile: For hu!an "eings (1atural Persons)$ Citi(enship is the %tate of persons do!icile. Do#icile i t,e te t !or ,u#"n =ein6 citiFen ,ip. ReIuire#ent !or Do#icile: o Ph sical presence in the state5 and o Intent to !a8e ho!e for foreseea"le future (su"#ective in6uir )

:u#"n $ein6 ,"ve only one do#icile> ),ic, #e"n " per on c"n =e " citiFen o! only one t"te !or diver ity purpo e . :ou are ascri"ed a do!icile when ou are "orn$ usuall the do!icile of parent$ which is our citi(enship for diversit purposes. Aherever that is (usuall do!icile of parent)$ a person 8eeps that citi(enship until the affir!ativel change it " !eeting test for *o!icile. L *33./"2/.2.Alien"6e ReIuire#ent : 0ust "e "etween a citi(en of a state and an alien A!ount in controvers !ust e<ceed 3Q4$000 (or 3Q4$000.0/) o For purposes of this section$ /HH/ and /@@4$ a green card alien shall "e dee!ed a citi(en of the state in which he is do!iciled. But this applies to onl defeat diversit #urisdiction and cannot "e used so an alien can sue an alien. A#eric"n ;,o Are A=ro"d C"nnot +o To Deder"l Court> =ut c"n 6o to t"te court: o T,ey "re not con idered citiFen !or diver ity purpo e : 0ust "e A!erican 0ust "e do!iciled= (/) ph sical and (2) intent o T,ey "re not con idered !orei6ner !or "lien"6e -uri diction: 9he are A!erican Citi(ens L *33./d2: 9reat these places as states for *iversit Citi(enship purposes= A!erican possessions such as *C$ Puerto ,ico$ 7.%. Sirgin Islands$ and Mua! *33./c2/*2: CitiFen ,ip o! Corpor"tion : A corporation is a citi(en of= "ll t"te ),ere it i incorpor"ted (it is possi"le to "e incorporated in !ore than one state$ "ut hardl ever happens)5 and t,e one t"te ),ere " corpor"tion ," it princip"l pl"ce o! =u ine (there is onl one principal place of "usiness). Doe not c"re ,o) #"ny pl"ce t,e corp. doe =u ine or ," #"nu!"cturin6 pl"nt > t,ere i only one princip"l pl"ce o! =u ine . AAACo#plete Diver ity Rule "pplie to corpor"tion "l o. . Te t To Deter#ine " Corpor"tion( Princip"l Pl"ce o! $u ine Nerve center te t: focuses on where corporate decisions are !ade$ usuall the head6uarters. /0

3u cle center te t: focuses on where corporations "ul8 of activities ta8e place. AAA0ost courts loo8 at all the factors. 0ost courts will use the nerve center te t unless all of the activit is in one state. If all activit is in one state$ courts use #u cle center te t. AAAeven though there are two tests$ there is onl one principal place of "usiness. Supre#e Court t"ted !or Unincorpor"ted A oci"tion : ou loo8 at citi(enship of all the !e!"ers. An unincorporated association li8e a partnership$ is a citi(en of ever state in which its !e!"ers are citi(ens. /@@2(c)(/) does not appl to unincorporated associations= ?a"or 7nions ?aw Fir!s (loo8 at li!ited an general partners) AAAI! unincorpor"ted " oci"tion 6o to !eder"l ct.> it )ill #o t li7ely =e " !eder"l Iue tion c" e. Repre ent"tive Suit L *33./c2/*2: cases involving !inors$ inco!petents or decedents estates$ ou loo8 to the citi(enship of the represented$ not the representative. L *358: 7sed to ta8e care of these collusive atte!pts to create diversit . Court will loo8 to citi(enship of assignee when ou assign right to sue to so!eone else. (2nl concerned with collusive atte!pts. One liti6"nt c"n c,"n6e do#icile !or ole purpo e o! cre"tin6 diver ity). A#ount In Controver y ReIuire#ent o! M15>999.9* 3u t $e 3et: *33./"2/*2: ,e6uires a good faith allegation that clai! e<ceeds 3Q4$000$ e<clusive of interest and cost. +ener"l Rule: the winner of litigation$ plaintiff or defendant$ recovers her cost fro! opposing side. Co t include: *oc8et fees$ witness fees$ cost of litigation$ etc. Attorne s fees are not included in costs. Costs are not included in a!ount in controvers . Ae do not care a"out the a!ount of the outco!e "ecause #urisdiction is attached at outset. If a!ount is less than 3Q4$000.0/$ plaintiff !ight "e lia"le to defendant for costs (even though plaintiff won). To Di #i A C" e Dor L"c7 o! A#ount in Controver y: o 0ust show that it is clear to a legal certaint that a!ount does not e<ceed 3Q4$000. o 7suall what plaintiff sa s is accepted on their good faith.

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o Cannot get punitive da!ages as a !atter of law$ so if punitive da!ages included in a clai! of 3Q4$000.0/$ case will "e dis!issed. A66re6"tion Principle: Aggregation is where the plaintiff !ust add together 2 or !ore clai!s to get over 3Q4$000. ;,en i A66re6"tion Per#i i=le:AADo not "ddre i ue i! de"lin6 )it, one cl"i#N o 2nl allowed if there is one pl"inti!! v . one de!end"nt. o I! #ultiple p"rtie "re on eit,er ide$ aggregation is not allowed o 1ot sa ing we need 3Q4$000.0/ fro! each defendant$ we need overall a!ount in controvers that e<ceeds 3Q4$000. ;<a!ple= Assu!e *iversit of Citi(enship is !et. %uppose we have /0 plaintiffs against 20 defendants for one clai! of 3Q4$000.0/$ there is no aggregation issue. 9he have e<ceeded Q4$000. o Joint Cl"i#: If !ultiple plaintiffs involving a #oint or undivided interest (onl applies in Propert Conte<t) loo8 to value of the propert . $. Deder"l %ue tion Juri diction L*33*: Mives #urisdiction over cases arising under federal law$ including= Federal statutes and treatises Citi(enship of parties are irrelevant A!ount in controvers is irrelevant 3ere Pre ence o! Deder"l L") Doe Not 3"7e It A Deder"l %ue tion C" e. To Deter#ine Deder"l %ue tion: ?oo8 onl a plaintiffs clai! *o not loo8 at an thing defendant has to sa *o not loo8 at defenses defendant !a raise *o not loo8 at counterclai! defendant !a raise Deder"l %ue tion #u t e?i t olely on pl"inti!!( cl"i#. T,e cl"i# #u t: Arise under that federal law Based upon that federal law %uing to vindicate so!e right given to plaintiff " that Federal ?aw. ;ell Ple"ded Co#pl"int Rule: the court is going to loo8 at co!plaint and focus onl on what plaintiffs clai! is. If clai! is "ased on federal law$ we can go to federal court. If not$ cannot go to federal court. i. Loui ville J N" ,ville R"ilro"d Co. v. 3ottley /US *8902: Jus"and and Aife were in#ured on the train$ and in settle!ent of their clai!$ the too8 lifeti!e passes to ride the train. Congress passed a federal statute that sa s railroads cannot give awa free passes. ?ater$ 0ottle s show up to use free pass and railroad. 9he sued for specific perfor!ance of /2

contract. In co!plaint the stated= (/) the federal statute does not appl . (2) if so$ it is constitutional. o 1o diversit of citi(enship ("oth parties are fro! Eentuc8 ) o 1o Federal )uestion "ecause clai! does not arise under federal law. o 9he !entioned federal law$ "ut "reach of contract is not governed " federal law. Dor St"tute o! Apply> A 7 Kour el!: o Is the plaintiff suing to enforce a right under that federal law? o If clai! has nothing to do with Federal %tatute$ there is no federal 6uestion. AAAE?clu ive Deder"l Court Juri diction: patent infringe!ent (not case involving a patent)$ antitrust cases$ cop right cases$ federal tort clai!s act cases$ etc. C. Re#ov"l: (have their own venue provisions R /HH/) we give defendant a choice to go to federal court. 2nl allows defendants to have a case filed in state court re!oved to federal court. AAAc"n only re#ove !ro# t"te to !eder"l> not !ro# !ed. to t"te. L *''*: C"n only re#ove " c" e to !eder"l di trict court t,"t e#=r"ce t,e t"te court ),ere it )" ori6in"lly !iled. AAAe?ception: all defendants !ust agree to re!oval L *''*/c2: allows re!oval of an entire case " a defendant if there is a separate and independent federal 6uestion clai! against her. +ener"l Rule: case is re!ova"le if it could have "een heard in federal court. 9here !ust "e su"#ect !atter #urisdiction (*iversit of citi(enship or federal 6uestion). E?ception to +ener"l Rule Dor Diver ity C" e : o 1o re!oval if an defendant is a citi(en of foru! R /HH/(") o 1o re!oval !ore than / ear after case was filed in state court R /HHO(") L *''4 Procedure !or Re#ov"l: 39 D"y (a) dont as8 per!ission$ #ust re!ove& file a notice of re!oval in the district court short plain state!ent of grounds of re!oval cop of all papers served on defendant (") file within @0 da s after defendant gets cop of initial pleading$ or within @0 da s after defendant gets su!!ons if pleading has "een filed in court and is not re6uired to served on defendant (whichever period is shorter). L *''1 I! I#properly Re#oved: o plaintiff !ust raise pro"le! in @0 da s (applies to procedural pro"le!s) o ?ac8 of su"#ect !atter #urisdiction can "e re!anded at an ti!e

P"rt IC. Cenue: In ),ic, Deder"l Di trict Court Do ;e L"y CenueG

Rule : /@

o 1o constitutional right to proper venue o Cenue doe not "pply to re#ov"l c" e o *o not appl to local actions (cases involving land)= ou la venue in district where land lies o Senue applies to 9ransitor actions A. $" ic Cenue Rule : o L *38*/"2: Diver ity C" e o L *38*/=2: Deder"l %ue tion C" e In Any C" e ;e :"ve T)o C,oice : L*38*/"2 H L*38*/=2 i. plaintiff can la venue in an district where all defendants resides. If all defendants reside in different districts of the sa!e state$ can la venue in district where either of the! resides ii. plaintiff can la venue in an district where a su"stantial part of clai! arose AAA3"y =e #ore t,"n one u= t"nti"l p"rt o! ),ere cl"i# "ro e> you need to "r6ue =ot,. *38*/"2/32: Diver ity C" e : plaintiff can la venue where an defendant is su"#ect to personal #urisdiction. Ahen case is filed$ if there is no district in which case !a "e "rought. *38*/=2/32: Deder"l %ue tion: In an district where an defendant is found$ if there is no district where case !a "e "rought. AAAR/@P/(a)(@) and R/@P/(")(@)= onl where clai!s arise overseas. Can onl use these where there is no district in countr availa"le. AAAresidence usuall refers to where defendant is do!iciled$ "ut !a reside in a separate place fro! do!icile. /@P/(c)= a corporation resides in all districts where the corporation is su"#ect to personal #urisdiction where the (co!plaint is filed) case is co!!enced. $. Tr"n !er o! Cenue Rule o ou can onl transfer intras ste! o ou can transfer "etween federal district courts o state courts can transfer within courts in their state$ "ut cannot transfer fro! state to state. i. :o!!#"n v. $l" 7i /US *8492: we can onl transfer to a federal district court that has personal #urisdiction over defendant and is a proper venue. 0ust "e true personal #urisdiction$ independent of waiver. . Di!!erent Cenue Tr"n !er St"tute : o L *'9'/"2: onl availa"le if the original court was a proper venue. 0a transfer "ased on=

/H

 convenience of the parties convenience of the witnesses the interest of #ustice ii. C"n Dun en /US *84'2: choice of law rules go with the case. iii. Deren /US *8892: choice of law rules appl even if plaintiff initiates the transfer. o L *'94/"2: applies onl if original court was i!proper venue. Can transfer fro! a court has i!proper venue. Can transfer in interest of #ustice$ or *is!iss C. Doru# Non Convenien = (co!es up when we cannot transfer "ecause "est foru! !ight "e in another #urisdiction) *octrine " which a court dis!isses a case "ecause the "alance of inconvenience tips ver strongl toward another court. 1eed a stronger showing for dis!issal. i. Piper Aircr"!t Co. v. Reyno /US *80*2: A s!all co!!ercial aircraft crashed into area in %cottish during a charter flight fro! Blac8pool to Perth. 9he pilot and five passengers were 8illed instantl . 9he decedents were all %cottish su"#ects and residents$ as their heirs and ne<t of 8in. Aircraft was !anufactured in Penns lvania " Piper$ and propellers were !anufactured in 2hio " Jart(ell. D"ctor to Di #i Dor Doru# Non convenien (applies to R/H0H(a))= Priv"te Intere t: ,elative ease of access to sources of proof Availa"ilit of co!pulsor process or attendance of willing and unwilling witnesses and their cost of attendance Possi"ilit of view of pre!ises$ if view would "e appropriate to the action And all other practical pro"le!s that !a8e trial of a case eas $ e<peditious and ine<pensive Pu=lic Intere t: Ad!inistrative difficulties flowing fro! court congestion ?ocal interest in having locali(ed controversies decided at ho!e Interest in having the trial of a diversit case in a foru! that is at ho!e with the law that !ust govern the action

/4

9he avoidance of unnecessar pro"le!s in conflict of laws$ or in the application of foreign law 9he unfairness of "urdening citi(ens in an unrelated foru! with #ur dut 3o t DNC Di #i "l Are Conditioned Upon De!end"nt ;"ivin6 Cert"in T,in6 : o %tatue of li!itations o Personal #urisdiction

P"rt C. C,"llen6in6 Juri diction

%pecial Appearance= go into state to challenge personal #urisdiction onl (used to challenge in persona!). ?i!ited Appearance= onl show up and defend on the !erits without su"#ecting ourself to personal #urisdiction (used to contest in re! and 6uasi in re!). Meneral Appearance= if ou go "e ond contesting in persona! #urisdiction under special appearance$ ou have constituted a general appearance. *irect Attac8= a straightforward challenge at the trial for sufficient cause$ to annul$ reverse$ vacate$ correct$ void or en#oin a #udg!ent. Collateral Attac8= *id not go to trial$ default #udg!ent issued$ now defendant !a8es an i!per!issi"le attac8 on the validit of the #udg!ent rendered$ the purpose "eing to overturn (or i!peach) the #udg!ent. o Per!its client to onl raise issue of whether previous court had #urisdiction$ cannot contest the !erits of the plaintiffs clai!. o If court deter!ines previous court did have personal #urisdiction$ default #udg!ent against client is enforced without litigation concerning the !erits of the underl ing dispute. o If court deter!ines previous court did not have personal #urisdiction$ the can refuse to enforce the #udg!ent. Plaintiff !a then decide to litigate in that state on the !erits of the underl ing dispute. A. Deder"l Rule *. +overn R"i in6 O! T,e e De!en e : De!end"nt ," t)o )"y in ),ic, to re pond: /) File an answer (pleading)$ or 2) Bring a !otion$ which is a re6uests that the court order so!ething (!otion of continuance$ !otion to e<clude$ etc). *./=2 3otion to Di #i t,e C" e o 0otion is never a ver"$ ou !a8e a !otion. If ou have to use a noun$ ou !ove for dis!issal.

/O

 Deder"l Rule *./=2: Li t o! 1 de!en e t,"t t,e de!end"nt c"n r"i e eit,er =y "n )er or =y #otion to di #i : /*2 l"c7 o! u=-ect #"tter -uri diction> /.2 l"c7 o! per on"l -uri diction> /32 i#proper venue> /'2 in u!!iciency o! proce (!essed up su!!ons or co!plaint) /52 in u!!iciency o! ervice o! proce (didnt pla " the rules) /42 !"ilure to t"te " cl"i# /12 !"ilure to -oin "n indi pen "=le p"rty Rule *./=2/*2: can "e raised at an ti!e according to *./,2/32 which states that the court shall dis!iss actions where there is lac8 of su"#ect !atter #urisdiction. Rule *./62 J *./,2: waiva"le defenses/2(")(2)&(")(4) !ust "e included in our first ,ule /2 response. Rule *./=2/42 J *./=2/12: can "e raised an ti!e through the end of case$ "ut not after #udg!ent. P"rt CI. Ple"din6 = docu!ents that the parties file with the court setting forth clai!s and defenses. 7nder Federal ,ules= o pleadings are "asicall used to give notice. o li!ited nu!"er of pleadings (co!plaint and answer) Rule 1/"2: o Plaintiff files a co#pl"int o *efendant !a file an "n )er o Plaintiff !a reply to defendants answer (ver rare onl done when the court orders plaintiff to) AAA!an states adopt federal rules on pleading Code Ple"din6: shares the "asic goals of federal rule pleading "ut re6uires !ore detail in the pleadings$ !ore technicalit . o Code specifies pleading facts to constitute a cause of action. 2n the Federal %ide$ we want to decide cases on their !erits$ not on technicalit $ reflected in ,ule L(a)(2). o Rule 0/"2/.2: plaintiff is e<pected to give a short and plain state!ent of the clai! showing she is entitled to relief. Notice Ple"din6: 7nder Federal rules$ the defendant has to "e a"le to read the co!plaint and figure out what she is "eing sued for. Rule *./=2/42 3otion to Di #i !or D"ilure To St"te A Cl"i#: will "e granted onl if the court cannot i!agine a set of facts under these allegations that would #ustif a #udg!ent. I. ;e Loo7 "t ' T,in6 Under Deder"l Rule Ple"din6: /Q

A. $. C. D.

Co#pl"int T,e An )er "nd Ot,er De!en ive Re pon e A#end#ent Rule **

A. Co#pl"int: pleading " the plaintiff that gets "allga!e rolling. Rule 0/"2 co!plaint !ust have three things= *2 t"te#ent o! u=-ect #"tter -uri diction .2 t"te#ent o! " cl"i# (short and plain state!ent of clai!) 32 " de#"nd !or -ud6#ent AAA"ny o! t,e 3 i #i in6> c" e #u t =e di #i ed. Federal ,ules *o 1ot ,e6uire a great a!ount of detail in state!ent of clai!$ we can "e fairl conclusor . Rule 8 Speci"l 3"tter t,"t 3u t =e Ple"d in Det"il: o 8/=2: circu# t"nce con titutin6 !r"ud or #i t"7e> #u t =e ple"d )it, p"rticul"rity /ele#ent t,"t con titute !r"ud or #i t"7e2 o 8/62: ite# o! peci"l d"#"6e : "re t,o e t,"t do not !lo) n"tur"lly !ro# "n event. 3u t =e ple"ded )it, peci!icity /,"ve to 6ive c,"pter "nd ver e2 i. C" e In AriFon" Plaintiff was hit " car and he suffered all the da!ages we would e<pect= pain and suffering$ loss wages$ !edical e<penses$ in addition nerve da!age that gave hi! a per!anent erection. Plaintiff sued for the nerve da!age that gave hi! a per!anent erection (along with ever thing else) :eld: Per!anent erection is special da!ages "ecause does not naturall happen and #udge is going to need !ore detail on that clai!. 0ust "e spelled out with specificit . ii. Le"t,er#"n /US *8832: Courts cannot add categories of cases to this list. In a lot of civil rights cases$ federal district courts were sa ing Fwere gonna re6uire heightened pleading or specificit in Civil ,ights cases.G Court in ?eather!an said no thats inappropriate and cannot do it if it is not listed in ,ule P. E?pre io uniu e t e?clu io "lteriu : Fif ou state the rules$ ou have e<cluded other stuffG '. USC L *803: allows ou to sue$ under federal 6uestion$ a state actor who violates our civil rights to sue a !unicipalit . 0ust "e essentiall caused " a custo! or polic . ,ule P(a)= in rare cases we will allow the defendant to raise the capacit issue. /L

 ,ule P(c)= Burden is on defendant also to raise conditions precedent have not all "een !et. Rule '*.Colunt"ry Di #i "l: su"#ect to the provisions of ,ule 2@(e)$ of ,ule OO$ and of an statute of the 7%$ an action !a "e dis!issed " the plaintiff without order of the court. o 3 Option Dor Di #i "l: B Filing a notice of dis!issal at an ti!e "efore service " the adverse part of an answer or of a !otion for su!!ar #udg!ent (unless otherwise specified in the order$ a dis!issal is without pre#udice). B filing a stipulation of dis!issal signed " all parties who have appeared in the action (unless otherwise specified in the order$ a dis!issal is without pre#udice). AAANotice o! di #i "l oper"te " "n "d-udic"tion upon t,e #erit /dismissal with prejudice2 ),en !iled =y plaintiff who has once dismissed in "ny US or t"te court !or "ction =" ed on or includin6 "#e cl"i#. B order of the court (unless otherwise specified in the order$ a dis!issal is without pre#udice). o 1ote= A dis!issal Fwithout pre#udiceG !eans that plaintiff can reinstate the case. Courts li!it a!ount of dis!issals without pre#udice to li!it the a!ounts of ti!e defendant is harassed. A dis!issal Fwith pre#udiceG or Fon the !eritsG "ars the plaintiff fro! "ringing the clai! again. ,ule H/ per!its plaintiff to act unilaterall in so!e situations "ut re6uires a court order in others. Rule '*/=2. ;"y to Involunt"ry Di #i : o An thing under /2(") would constitute an involuntar dis!issal o Failure of plaintiff to prosecute o Failure of plaintiff to co!pl with Fed. ,ules o Failure to co!pl with an order of the court

/P

2%C= !eans Federal court will order the plaintiff to show cause. Je !ust prove case is "eing wor8ed on. ,ule 1isi= sa!e as 2%C in Fed. Courts$ "ut is used in state courts. $. De!end"nt( Re pon e: can either file "n )er /ple"din62 or "ring a #otion. ,ule /2(a) 0ust do within .9 d"y after service of process$ or o ,ule /2(")= If service of su!!ons has "een ti!el waived on re6uest under ,ule H(d)$ within 49 d"y after the re6uest of waiver was sent (or within P0 da s after that date if the defendant was addressed outside an #udicial district of the 7.%.). De!end"nt i not reIuired to erve "n "n )er to t,e co#pl"int until 49 d"y "!ter t,e d"te> (or P0 da s after that date if the defendant was addressed outside an #udicial district of the 7.%.). Rule '/d2/32 Doe not "pply to #otion> o #u t till !ile )it,in .9 d"y "!ter ervice o! proce /su!!ons ' co!plaint). ,ule /2(") lists so!e !otions o 0otions are defensive responses. ,ule /2(e) !otion for !ore definite state!ent (where a pleading is so vague and a!"iguous that ou cant respond to it) ,ule /2(f) !otion to stri8e (scandalous !atters$ or not an ele!ent under su"stantive law$ etc.) Punitive da!ages= usuall involve cases of 9ort law concerning fraud$ oppression$ or !alice. 0a want to stri8e with /2(f) !otion for words li8e those to avoid punitive da!ages. ,ule /2(e) and /2(f) !ust "e filed "efore we file responsive pleading (answer). ,e!e!"er /2(")s can "e put in the answer or !otion to dis!iss and re!e!"er the waiva"le defenses /2(g) ' /2(h) %o!e cases ou "ring a !otion and answer. If ou "ring a ,ule /2 !otion$ ou do not have to file an answer in the !eanti!e. If !otion is denied$ then ou have to file an answer within *9 d"y . ;,"t Do Kou Put In An An )erG *2 Rule 0/=2 #u t re pond to "lle6"tion in co#pl"int. Only 3 type or re pon e : To "d#it

20

To deny: (failure to den is an ad!ission)K A #oined issue is one that .s have denied and needs a factual deter!ination. L"c7 o! Su!!icient In!o to Ad#it or Deny: (can not use this response if answer is in our control or pu"lic 8nowledge) has the effect of a denial. AAAdo not r"i e ne) !"ct > -u t "n )er t,e co#pl"int. .2 A!!ir#"tive De!en e /even i! I did t,i tu!!> you till do not )in2 A ertion o! " ne) !"ct> i! you don(t ple"d in "n )er> you ,"ve )"ived it. Rule 0/c2 li t #"ny de!en e > o#e "re: St"tute o! li#it"tion St"tute o! !r"ud A u#ption o! ri 7 Re Judic"t" Contri=utory Ne6li6ence $urden o! Proo!: If ou have the "urden of pleading an issue$ usuall have the "urden of proving that issue. o Pl"inti!!: !ust prove ele!ents of su"stantive law. If ATBTCT* (ele!ents) U plaintiff wins$ 7nless VT:TN (affir!ative defenses) are true U defendant wins o In ,epa !ent of ?oan Cases= Plaintiff !ust plead that ou failed to repa $ their was a contract$ and a!ount of ti!e to repa . *efendant !ust den failure to repa in answer$ o But also !ust plead in affir!ative defense that he did pa $ "ecause he would have cancelled chec8 so it is onl right that he has the "urden ( no wa plaintiff could prove). o In *efa!ation(oral) Cases= so!eti!es called li"el (written) and slander$ is a false pu"lished (press$ oral$ etc.) of a person$ and it upholds plaintiff to ridicule. Plaintiff !ust plead (/) defendant pu"lished false state!ent$ (2) it was false$ and (@) upholds plaintiff to ridicule. *efendant !ust plead in affir!ative defense that clai! is false and den in

2/

response. Burden is on plaintiff to plead and prove his state!ent. *enials= o Meneral denial= one sentence docu!ent that sa s defendant denies each and ever docu!ent in co!plaint. ***be careful, usually cannot deny everything. o %pecific denial= respond to each paragraph individuall = *efendant ad!its the allegations of paragraph one of the co!plaint. *efendant denies allegations of paragraph two of the co!plaint$ and so forth. o 7suall in state courts= Argu!entative denial= if responding$ ad!it or den . If ou raise a new fact$ it !a "e dee!ed an ad!ission. 1egative pregnant= Can result fro! a denial that is too literal that is pregnant with an ad!ission of so!e fact. De!"ult -ud6#ent: If defendant does not respond in 20 da s$ he !a default. *efault is a notation on doc8et sheet held " court sa ing defendant has not responded in an appropriate ti!e. AAA;,en p"rty ue > "l)"y "dd plu co t. ,e!e!"er R/@@2 *iv. 2f Cit. if #udg!ent is less than Q4$000$ the plaintiff !a have to pa costs. o Rule 55.De!"ult: . Step Pl"inti!! 3u t T"7e (!ust see cler8): Rule 55/"2: Ahen a defendant fails to plead or otherwise defend as provided " these rules$ plaintiff !a show " affidavit or otherwise$ the cler8 shall enter the part s default. Rule 55/=2/*2H $y Cler7: Cler8 shall enter #udg!ent for that a!ount and costs against the defendant. Clai! has to "e a su! certain or su! which can " co!putation "e !ade certain$ Affidavit showing a!ount is due$

22

*efendant failure to appear (!eans we havent heard an thing fro! defendant at all)$ *efendant is not an inco!petent or infant (!inor). Rule 55/=2/.2H $y Court (!ust see #udge): 0a8e a !otion or !ove for default #udg!ent$ 1ot against inco!petent or infant *efendant gets notice of hearing on default #udg!ent at least @ da s prior o if he has !ade an appearance in the case onl . If no appearance$ defendant does not get notice. AAAKou c"n "ppe"r in "ction "nd till =e in de!"ult> i! you don(t do tu!! in " ti#ely #"nner. Rule 4/=2: +ive "n Enl"r6e#ent o! Ti#e. If defendant is late with answer or response$ defendant can !ove for O("). 0ost courts will overloo8 O(") and allow defendant to file an answer long as default is not on the doc8et. 2nce default is on doc8et$ defendant cannot file. Rule 5'/c2: Can never get #udg!ent for !ore than ou as8. -udg!ent " default shall not e<ceed a!ount pra ed for. Rule 55/c2. 3otion to Set A ide De!"ult !or +ood C"u e: If default #udg!ent is entered$ !a set aside in accordance with O0("). Rule 49/=2: allows ou to set aside an #udg!ent. 49/=2/*2: !ista8e$ inadvertence$ surprise$ or e<cusa"le neglect5 o usuall appears in default cases.

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o %hall "e !ade in a reasona"le ti!e$ not to e<ceed one ear. C. A#endin6 Ple"din6 (watch out on e<a!s)Rule *5: Rule *5/"2: plaintiff has a right to a!end once "efore defendant serves his answer (responsive pleading). o Ahat if defendant does not answer$ and instead "rings a !otion? Ae still have a right to a!end our co!plaint "ecause a !otion is not an answer (pleading). o *efendant has a right to a!end once within 20 da s after serving her answer. o Ahat if neither of those ti!e fra!es appl $ its "e ond that? If ou have no right to a!end$ ou si!pl see8 leave of court or " written consent of adverse part . :ou !ove for leave to a!end5 and shall "e granted when #ustice so re6uires. Part shall plead in response to an a!ended pleading within the ti!e re!aining for response to the original pleading or within /0 da s after service of the a!ended pleading (which ever period is longer$ unless court otherwise orders). Rule './=2: can alwa s order separate trials to avoid #ur confusion. Rule *5/=2.C"ri"nce: evidence at trial goes "e ond what was pleaded. o I! De!end"nt Doe Not O=-ect: ;vidence that is presented at trial will "e ad!itted if opposing council does not o"#ect. Court treats as if co!plaint was a!ended to show the new clai!$ even if not including in pleading. o I! De!end"nt Doe O=-ect: *efendant o"#ects " sa ing variance evidence is inad!issi"le. Court can e<clude evidence Part can a!end at trial unless opposing part (.) will "e pre#udiced and !ust "e a"le to show that. Court !a then grant opposing part continuance to ena"le o"#ecting part !eet such evidence. CCCIf totall unrelated$ court will not ad!it and sa sue separatel . If totall related$ court !a ad!it evidence. A!ter St"tue o! Li#it"tion ," p" edH ;"y AroundG o Rule *5/c2/.2. A#end to "dd " ne) cl"i#: this a!ended pleading relates "ac8 if it concerns sa!e

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conduct$ transaction$ or occurrence as the original pleading$ we treat as if it were filed on original date o A#end to C,"n6e t,e P"rty: sued the wrong person$ "ut now want to sue the right person. But cant until the statute of li!itations has ran out$ or !a "e there is another right person plaintiff !a want to #oin. Rule *5/c2/32: (/) if a!end!ent relates "ac8 to sa!e conduct$ transaction or occurrence as the original pleading$ (2) the new part 8new a"out the case within /20 da s of filing$ and (@) new person 8new that "ut for a !ista8e$ she would have "een na!ed originall . St"tue o! Li#it"tion : gives ou a specific a!ount of ti!e to "ring a clai!. *efa!ation= usuall one ear5 9orts= usuall two ears5 Contracts= usuall H to 4 ears. o *iscover = statute "egins to run when ou 8now ouve "een in#ured o Accrual= statute "egins to run fro! the ti!e the in#ur or "reach occurred. Cl"i# Accrue ;,en In-ury or $re"c, :"ppen > t,e t"tute t"rt runnin6. o Tollin6 !eans we are going to stop the statue fro! running. ;<. ,ule H/$ if voluntar dis!issal without pre#udice and "rought clai! within one da running "efore clai! is "arred$ the cloc8 "egin running again and ou have one da to "ring case again (so!eti!es court will e<tend to si< !onths). Can onl do this one ti!e Tollin6 o! L"c7 o! C"p"city: o $ein6 -ud6ed in "ne: ?ac8ing legal capacit lasts until that person is declared !entall capa"le. At that point$ the statute starts running. o 3inor : If ou co!!it a tort against a !inor$ statute of li!itations does not "ar. It starts running when he turns /L ears old. D. Rule **: (a!ended in /PP@ to cut "ac8 on nu!"er of rule // clai!s in court s ste!). ,e6uires the attorne to sign all docu!ents$ not #ust pleadings "ut written !otions and other papers. AAADoe not "pply to di covery docu#ent BRule .4 6overn . ;,en l")yer i6n t,ey "re certi!yin6 t,"t to t,e =e t o! our 7no)led6e "nd =elie! "!ter "n inIuiry re" on"=le under t,e circu# t"nce > 't,in6 "re true: o 9he paper is not for an i!proper purpose o 9he legal contentions are warranted " law or at least " a non&frivolous argu!ent that the law ought to "e changed.

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o 9hat an factual contentions have evidentiar support or at least or li8el to have evidentiar support after further investigation o 9hat denials of factual contentions have evidentiar or li8el to after further investigation. AAAide" i t,"t court doe not )"nt !rivolou docu#ent . 3 C,"n6e Dro# *803 to *883 Rule ** T,"t Are I#port"nt: o Certi!ic"tion under Rule ** i " continuin6 certi!ic"tion5 it is effective ever single ti!e that this docu!ent is presented to the court. 7nder old rule$ ou onl certified at the outset$ now it is a continuing certification. o 3otion Dor Ciol"tion o! Rule ** Are Served> =ut not !iled. If we thin8 the other side has violated ,ule //$ we go ahead and draft !otion for sanctions under ,ule //$"ut we do not file it with the court. Ae serve it on the other side. Person then has 2/ da s in which to withdraw the offending docu!ent$ and if she does withdraw$ no sanctions against her. If she does not withdraw in 2/ da s$ we can go ahead and file the !otion and see8 sanctions. o S"nction "re no) di cretion"ry. /PL@ said sanctions shall "e i!posed$ here it sa s sanctions !a "e i!posed. Court can i!pose sanctions against the attorne $ the fir!$ or the part itself. AAAnd the whole point of the sanction is deterrence of a repeated conduct. ,ule e<pressl tells court to loo8 to non&!onetar sanctions.

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