PERSONAL JURISDICTION (PJ) Answers the question of in what state can sue?

The

test for personal jurisdiction is the same in federal court & state court. A federal court will only have jurisdiction if the state in which it sits has personal jurisdiction. A court can either have power over the or the s property to have PJ.

Specific jurisdiction is when the sues for a claim that arises in the forum. General jurisdiction is when the sues for a claim that arose anywhere.

I.

IN PERSONAM JURISDICTION (power over the s person) A judgment from a court creates a personal obligation on the & entitles the to full faith & credit (FFC) in all other states. The Due Process Clause tells states how far they can go in exercising PJ. This is the outer limit & is not self-executing but states do not have to extend their reach to the full limit of the constitutional circle. A. Statutory Test. The first thing you look at when you get a PJ question is the state statute for the jurisdiction that you are in. While statutes vary from state to state, every state has statute allowing jurisdiction when: present in forum when served with process (general jurisdiction statute) domiciled within the state (general jurisdiction statute) non-resident motorist act = appoint agent for service of process & consent (specific jurisdiction statute) (Hess v. Pawloski) attachment statute for in rem/QIR

long-arm statute for non-residents Full Power (CA type): the state has jurisdiction to the full extent that the Constitution allows test is same as Constitutional test
1.

Laundry List: various things that can do in state that would subject him to specific jurisdiction. Classical list includes: transaction of business, commission of tortious act, matrimonial domicile within state, owns real property within state.
2.

Interpretation of language can vary in different states. In (Gray v. American Radiator) Illinois had jurisdiction over Ohio Corp. b/c Illinois interpreted commit tortious act within state to mean tortious act occurred where is harmed (Illinois Rule).

Watch for difference between any business & substantial business in statute.

B. Constitutional Analysis: once a state statute has been met must look to Const. 1. Traditional Basis of Jurisdiction may alone suffice to establish PJ. (a) Presence: The Supreme Court upheld PJ when the was served with process within the forum state. (Pennoyer v. Neff) Neither International Shoe nor Burnham overruled the idea that presence alone is sufficient for personal jurisdiction. The International Shoe test says If he be not present then the minimum contacts test will be applied. Burnham was a transient jurisdiction case (obtaining jurisdiction by serving while temporarily physically present in the state) because was served process for a

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cause of action unrelated to his brief presence in the state. Here the court split 4-4 with one side suggesting that presence alone was enough (Scalia) & the other using minimum contacts as the definitive test (Brennan). (Burnham v. Superior Court of California) Force or Fraud exception: service of process invalid in cases where forced or tricked to enter state in order to serve process & therefore no PJ.

Domicile: if domiciled within the state then there is general jurisdiction. It is still true today. If not physically present in the state, can still exercise jurisdiction. If moved without intent to stay, can still be sued at last domicile (Mas v. Perry)
(b)

Consent: can waive Constitutional protection by consenting to PJ. Can do so in a state court by making a general appearance instead of a special appearance (only contest PJ). can provide express consent via contract or implied consent such as the nonresident motorist act in Hess v. Pawloski.
(c)

Agent appointed for service of process: can serve process on s agent if served within state. may appoint agent or s actions may by statute appoint or designate an agent for service of process. (Hess) Privileges & immunities clause protects right of interstate travel for persons but since corporations are not persons, state can exclude them from entering. States can force corporations to appoint an agent within the state as a condition for allowing the corporation in.
(d)

Modern analysis-International Shoe Test: The Supreme Court in International Shoe v. Washington greatly expanded the test for PJ beyond the traditional bases. The focus became whether there were such minimum contacts with the forum so that the exercise of jurisdiction does not offend traditional notions of fair play & substantial justice.
2.

Two-prong test required: minimum contacts & fairness. Must have a relevant contact before looking at fairness. All the fairness in the world would not make up for no contacts.

MINIMUM CONTACTS: whether has enough MC with state to establish its presence & satisfy the location requirement. Look at the quality of nature of the business. purposeful availment, purposeful direction, foreseeability
(a)

availment: must have purposely availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits & protections of its laws. Quality & nature. must have made a deliberate choice to relate to the state in some meaningful way before he can be made to bear the burden of defending there
Purposeful

Long-term relationship with forum: reached out to FL when signed 20 year franchise agreement (Burger King) Policy: Brennan stretches MC in signed FSC. He likes state sovereignty Single act: single act seeking to serve the forum market suffices for specific jurisdiction such as a Texas insurer selling one policy to person in CA. (McGee)
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Soliciting business: (e.g. advertising in forum, 800 numbers, sell on interstate highway close to state border, etc.)

Purposeful direction- generally consists of action taking place outside the forum directed at the forum. Calder Effects Test: Intentional act, expressly aimed, harm the brunt of which was felt in the forum state.
Foreseeability:

Do not look to the foreseeability that product will get there but that [ ] should reasonably anticipate being haled into court there. (World-Wide VW) Stream of Commerce: PJ over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in that forum state (VW) There is no substantive law in this area because of a 4-4 split in Asahi. Need to address both of the following theories: OConnor SOC+: Knowledge alone cannot serve as the basis of jurisdiction unless further action was taken. Something more is needed. Brennan SOC : reasonable anticipation that product could get into state is sufficient for minimum contacts. Knowledge alone at least in substantial quantities constitutes purposeful availment

Manufacturers: court upheld PJ over a component supplier whose product was sent into the forum state as part of a product manufactured by its customer (Gray v. American Radiator) Targeted effects: targeted effects at forum-> reasonably anticipate causing injury in forum-> reasonably anticipate being haled into court there. FAIRNESS:. If the benefitted from the laws & protection of the forum state & burden is not too great then its fair. Cannot offend fair play & substantial justice
(b)
Relatedness

Relatedness of claim of contact. (1) claim arising from activity in the state- specific jurisdiction for that isolated act. (2) systematic & continuous contactgeneral jurisdiction over any c/a. This is higher standard than MCT, takes a lot to prove gen-j. since will always claim that forum is not convenient then burden is on the to show that it is so gravely difficult that is at a severe disadvantage in the litigation (Burger King). It is such a high standard that will almost never satisfy it. Must put a severe disadvantage in comparison to opposing party
Convenience States

interest state forum may have a legitimate interest in providing redress for its of the litigation for settling controversies
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residents
Efficiency-

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 Policy

Shared interests of several states

s interests- in getting convenient efficient relief

C.

General Jurisdiction: In order to have general jurisdiction, the contacts of the with the forum must be substantial, continuous, & systematic. (Perkins v. Benguet Mining Co. & not Helicopteros)

D. Look to notice for due process requirements too! I. IN REM & QUASI IN REM Treat like in personam. Every state has an attachment statute. The Constitutional test is to meet minimum contacts. (Shaffer v. Heitner) If cant get in personam try one of these. Property may be tangible (real property or personal property), or intangible (bank account). USSC rules that the same MCT applies like in Int Shoe. To get quasi in rem there must be sufficient minimum contacts & purposeful availment & it must be fair. Not ok to just attach unrelated property to get jurisdiction. (Shaffer)
A.

In Rem Court power over property or thing. Dispute over ownership of the property as to the entire world. This jurisdiction is limited to situations where the property is located within the physical borders of the state. Usually presence of the property alone will satisfy minimum contacts. (footnote in Shaffer)

B. Quasi In Rem two types: The first one includes cases involving disputes over the ownership of the property between two or more parties. The second type involves personal disputes where the court lacks jurisdiction over the , but has jurisdiction over the property of the . The property would be seized by the & used to satisfy the claim if he prevailed. III. DIRECT/COLLATERAL ATTACK can only challenge PJ once, either on direct or collateral attack. A. Direct Attack = goes to the forum & contests personal jurisdiction. 1. Special v. General Appearance Code states have special appearance whereby a can solely contest PJ as long as no other defenses are raised. (a) FRCP states have no such thing as a special appearance because all grounds of defense including lack of PJ can be asserted in a motion or answer under Rule 12(b). If raises other defenses, it becomes a general appearance & has consented to PJ. (a) Once a makes a general appearance, he cannot later object to jurisdiction. (b) Under FRCP Rule 12(h)(1), waives PJ if it is not contested in either the answer or the first motion filed. 2. Advantages of a direct attack: If client prevails & court has no PJ, then case immediately dismissed. If s case is strong on the merits, should use direct attack.(wouldnt risk losing on issue of PJ on collateral attack because at that point judgment is already entered, & merits hold no weight) 3. Disadvantages of direct attack: May be expensive to travel & stay in a distant forum.
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 must use extreme care when conducting a special appearance because if raises any argument on the merits of the case, the would be deemed to have made a general appearance which constitutes voluntary submission to jurisdiction B. Collateral Attack = allows a default judgment to be entered & then contests PJ when comes to claim full faith & credit (FFC) on the judgment.

1.

Advantages of collateral attack: would litigate at home (save travel expenses). If s case is weak on the merits, would be better to save $ & try to win on issue of PJ.

2.

Disadvantages of collateral attack: Because a can enforce judgment anywhere has property, may still have to raise collateral attack in a distant forum. Permits to raise only issue of PJ (cannot contest merits of claim). If court finds PJ, there is a default judgment already against him

C. Limited Appearance Quasi in Rem If state has limited appearance statute, allows to appear for a limited purpose of defending his attached property w/o submitting to full in personam. If wins, the bad thing is he can be sued somewhere else, if he loses he only loses up to the value of the property & not for all possible damages If state does not have a limited appearance statute, has a choice of (1) refusing to show up to avoid in personam but lose his attached property or (2) submit to the courts personal jurisdiction & defend case on merits but face possibility of losing on in personam jurisdiction which potentially means more than the value of the property

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NOTICE & OPPORTUNITY TO BE HEARD - Due process requires to be given ntc &

opportunity to be heard: ntc reasonably calculated, under all circumstances, to tell interested parties of the action & give an opportunity to present their objections (Mullane Satisfying requirements in Rule 4 is usually enough to satisfy this Constitutional requirement.
I.

SERVICE OF PROCESS: governed by Rule 4. Service is only good in the state where the court sits, courts can only serve process outside of state lines if state law allows A. What is served? Process = summon (formal court notice) plus copy of complaint B. How do you serve? Rule 4(d): may request by mail that waive service (gives 30 days from when waiver was sent to return, if they do gets 60 days after the date on which the waiver was sent to answer the complaint) If wont waive, then there are methods for service: Under State laws Any method provided by state law in state where federal court sits or law of state in which was served may be adequate for service of process. (*look to state long-arm statutes) Rule 4(e)(1)

Personal service can hand to personally or close to them (within state or outside of state if state law allows) Rule 4(e)(2)(A)

Substituted service okay if service is left at s dwelling house or usual place of abode & with someone of suitable age & discretion residing therein Rule 4(e)(2)(B) or delivering a copy of each to an agent authorized by appointment or by law Rule 4(e)(2)(c)

Service of corporation, partnership, association authorizes service on a corporation, partnership, & unincorporated associations that are subject to suit under a common name. Permits service by delivery to an officer, managing agent, or general agent. (has been applied liberally Rule 4h

Service of Foreign Country- service that is reasonably calculated to give ntc may be used to those outside the US authorizes forms of services by other means not prohibited by Hague international agreement adopted by most courts. Rule 4f

Service by Publication only acceptable if there is no other reasonable means of notice; last resort unknown parties. Mullane

Time Limit for Service requires fed court to dismiss w/o prejudice actions where wasnt served w/in 120 days of filing complaint. If fails to show good cause for not completing service in that time. Rule 4(m)

Court will look at whether the party used the best practical means available to notify the (publication was not ok to serve known parties) Mullane

II.

OPPORTUNITY TO BE HEARD: Everyone is entitled to their day in court. Service of process requirements: (1) must be statutorily authorized (2) must be fair & reasonable so as to not violate due process, thus be constitutional Service of process can be invalid if person was lured by fraud or trickery

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SUBJECT MATTER JURISDICTION (SMJ)

State courts have general jurisdiction & can hear any type of dispute. Fed courts have limited jurisdiction hearing diversity of citizenship or federal question cases. Article III 2 outlines the types of cases fed courts can hear -Outer limits of federal SMJ. The USSC has original jurisdiction over cases involving ambassadors, public ministers, & when a state is a party. All other times the Supreme Court has appellate jurisdiction USC 28 1331 Federal Question & 28 1332 Diversity limit Art IIIs broad powers SMJ is not waivable, but PJ is a waivable. SMJ answers the question: Which system can you bring suit in (State or Federal)?

1. DIVERSITY OF CITIZENSHIP [1332 (a)(1)] & Alienage [1332 (a)(2)]: 2 requirements case must be between citizens of diff states (or between a US citizen & a subject of a foreign state) w/ the amount in controversy exceeding $75,000.
1.

1. Who are citizens of different states? Complete Diversity Rule (Strawbridge v. Curtis) No diversity if any is a citizen of the same state as any (draw line in between & sides to check). Must have complete diversity at the time the case is filed (doesnt matter if the parties move after case is filed makes no difference for diversity purposes). What is citizenship? (a) Natural persons: two requirements to determine citizenship [1332 (a)(1)] Must be a citizen of the U.S. Domicile (can only have one domicile at a time) Your true fixed & permanent home to which you intend to return to Changing domicile: a party changes domicile only by taking up resident in another state with intent to remain there If you have no intention to stay in the state where you reside, your domicile is the last most fixed domicile
(b)

2.

Corporations [1332 (c)(1)] Corporations are citizens of all states where they are incorporated & in the one state where they have their principle place of business (PPB). Principle Place of Business (PPB) (only can have one PPB) Total Activity Test- hybrid of nerve center & corporative activities (if they are in different states) to determine which if the PPB Nerve Center Test where most of the decisions take place or corporate HQ Corporate Activities- the location of the companys production of service activities All states in which they are incorporated- if any opposing party is a citizen of the corporate partys states of citizenship there is no diversity Unincorporated Associations/ Partnerships (e.g. Labor unions, no statute) Citizenship = that of each & every one if its members/partners

(c)

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B.

Amount in Controversy [1332 (a)(1)] - s claim for recovery must exceed $75K. There must be a legally tenable possibility that recovery will exceed $75K (good faith). 3 reasons why s claim may not be good faith: 1. Legal limit. (statute says cannot get over $75K based on claim) 2. Remedy is inappropriate. (e.g. punitive damages in a contract case) 3. s claim not deserving of more than $75K burden is on the to prove w/ legal certainty that it doesnt reach 75K

Aggregation of Claims (adding up 2 or more claims to get over $75K) 1. 1 can aggregate claims against 1 even if claims are unrelated 2. Multiple s may aggregate their claims only when they seek to enforce a single title or right in which they have a common & undivided interest Test = if 1 loses his claim the other should be able to get his money (undivided)

Equitable Relief Court will uphold jurisdiction if harm to is enough, or cost to is enough with respect to amount in controversy.

II.

FEDERAL QUESTION (FQ) [1331] The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. The federal courts have exclusive jurisdiction over areas including patent infringement, bankruptcy, civil rights, antitrust & others as provided in 1333-1351. There is no amount in controversy requirement & the citizenship of the parties does not matter in an FQ case. In a FQ case, must only satisfy PJ under minimum contacts (Constitutional test), even if state has a more restrictive long arm.

A. Well-Pleaded Complaint Rule Federal question must appear as part of s complaint. Basis of claim itself must arise under federal law. Is the raising a federal issue in the complaint? Content of the s answer is not relevant, even if an issue of federal law is asserted as an affirmative defense. (Louisville & Nashville Railroad Co. v. Mottley)
III.

SUPPLEMENTAL JURISDICTION [1367] If the original basis of the claim invokes federal SMJ, then the federal courts have the discretion to exercise supplemental jurisdiction over state law claims that may not have an independent basis for SMJ. (a) original claim & state law claim have to be related under CNOF (b) restricts sup j in diversity cases, cannot destroy complete diversity (c) fed courts can use discretion & can decline when issue raises novel or complex issues of state law, state claims predominates when court dismissed all claims where it had original j, exceptional circumstances (must have 1 of these reasons to dismiss) If 1 satisfied minimum amount in controversy for diversity, fed courts under supp j can hear another s related claim even if it is less than the required amount

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 REMOVAL

[1441, 1446, 1447] Gives a say in whether a case will proceed in state or federal court. Permits to remove a case from state court to federal court. A. General Rules: 1. It is a 1 way street (remand back to state court, you dont remove back to state court).

cannot remove in any circumstance. Even when there is a counterclaim does not become like for purposes of removal.
2.

All served s must agree to remove a case. s served later can move to remand because they did not agree to the removal. 1441(b)
3.

Can remove only to the federal district that geographically encompasses the state court where original case was filed.
4.

5. Removing a case does not waive 12(b)(2-5) motions. A federal court must have SMJ in order for a case to be removable. If one claim is a FQ then may remove entire case even if other claims do not have SMJ. Two exceptions to allowing removal in a diversity case (do not apply to FQ case): (a) ONLY diversity- no removal if any is a citizen of the forum = In State Rule (b) No removal more than one year after case was filed in a diversity case.
6. B.

Procedure for Removal [1446]

must file in the district court a notice of removal pursuant to FRCP Rule 11 containing: a short & plain statement of grounds for removal, & a copy of all process, pleadings, & orders that have been served on .
1.

Notice of removal shall be filed within 30 days after receipt of complaint by , or within 30 days after service of summons on if initial pleading did not have to be served on , whichever period is shorter.
2.

If the original complaint was not removable, then may file within 30 days after case becomes removable (by an amended complaint or otherwise), as long as it has not been more than one year from commencement of the action.
3.

must give written notice to all adverse parties & state court clerk, effecting removal & ending state courts handling of case until case is remanded
4.

One Strike Rule the first that could have removed better have because subsequent s added past 30 day period cannot remove
C. D. 1.

Procedure After Removal [1447] must file motion to remand within 30 days after notice of removal [1446(a)] was filed by , except when court lacks SMJ. The 30 day requirement does not apply to SMJ since if at any time the federal court lacks SMJ, case must be remanded.

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VENUE [1391]

Venue tells which federal district you can sue in (geographic question). No Constitutional right to venue. All determined by statute/legislation. Improper venue may be waived.

I. BASIC RULES A.

Local Actions [1391 does not apply] = ones involving real property (e.g. land) RULE: lay venue where land lies Real property as basis of jurisdiction (in rem, QIR)

B.

Transitory Actions [1391] = all other actions Rules same for diversity & FQ cases. can lay venue in:
1. Any district where any resides, if all (a) If s reside in different districts

s reside in the same state. [1391(a, b)(1)] of the same state, then can lay venue in district

in which any one of the s reside. (b) reside (for natural persons) = domicile (c) reside (for corporations) [1391(c)] = all districts where subject to PJ at time action is commenced. Rule does not specify whether PJ met by state statute or minimum contacts, thus must argue either way. In multi-district state, reside in any district where contacts sufficient for PJ exist. If no contacts sufficient for PJ, reside in district where most significant contact. (d) reside for unincorporated associations is where it does business.

2. Any district

where a substantial part of the events or omissions giving rise to the claim occurred. [1391(a, b)(2)] May be more than one district. district in which any is subject to PJ at time action is commenced [1391(a)(3) = diversity cases] or where any may be found [1391(b)(3) = non-diversity cases], if there is no district anywhere in the U.S. which satisfies (1) or (2). (Very Rare) E.g. If a claim arose outside the U.S. against a not residing in U.S.
3. Any

Alienage cases: An alien may be sued in any district that has personal jurisdiction [1391(d)].

II. TRANSFER (CHANGE OF VENUE) Intra-system transfer: can transfer across state lines only in federal court Can only transfer from one federal court to another federal court. Either a or can transfer a case.

Rules for transfer: A. Can only transfer to a court that is proper venue & has PJ without waivers by . (Hoffman where action might have been brought) B. Transfer when original court was a proper venue [1404(a)] = 1404 Transfer
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Every transfer of a case removed from state court must be a 1404 transfer & cannot be a 1406 transfer. WHY? The Stein Answer: 1391 does not apply to removed cases because venue is proper in the district that encompasses the state court, thus that district court will always be proper venue.
1.

GOLDLAWR where transferor court lacks PJ (is Constitutional to transfer, lack of PJ does not affect power to transfer a case) E.g. Amanda is sued in state court where there is no PJ but yes SMJ, thus remove case to federal court on basis of diversity. Venue is proper, however still no PJ = 1404 Goldlawr so case can be heard. Van Dusen does not apply under a Goldlawr transfer because cannot capture choice of law rules from a court that lacks PJ.
2.

VAN DUSEN - Under a 1404 (except a Goldlawr transfer), transferee court must apply the choice of law rules of the original court. Each state can create its own choice of law rules to dictate which states law will apply. If case were not transferred, the district court will apply the choice of law rules of the state in which it sits.
3.

Note: Court has discretion over whether it will transfer based on convenience of the parties & witnesses & in the interests of justice (look for center of gravity e.g. place that is substantially better).
4.

C.

Transfer when original court was an improper venue [1406(a)] = 1406 Transfer Court can either transfer or dismiss. Under a 1406, Van Dusen does not apply because cannot capture choice of law rules from an improper venue court. 1406 Goldlawr is possible when a court has improper venue & lacks PJ. Court still has power to transfer in this situation.

III. FORUM NON CONVENIENS When a proper court dismisses a case because there is a better court. FNC is raised by motion of . Why not transfer? Because FNC only applies when cant transfer because the better court is in another system. (E.g. different state or foreign country) A FNC dismissal may be conditioned on the waiving certain defenses such as statute of limitations or PJ. At the outset of FNC inquiry, court must determine if alternative forum exists. PIPER AIRCRAFT dismissal was appropriate where forum chose imposed a heavy burden on or the court, & where the cannot offer any specific reasons of convenience supporting his choice. Relevant factors considered are private & public factors. These factors must make a strong showing because result is a dismissal of the case. A. Private Factors (convenience of litigants) 1. Accessibility to sources of proof (witnesses, evidence).

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Costs of bringing willing witnesses & availability to subpoena unwilling witnesses. 3. Possibility of view of premises (if appropriate). 4. Other practical problems that make case easy, cheaper, & quicker. B. Public Interest Factors (convenience of forum) 1. Administrative difficulty because of court congestion. 2. Local interest in deciding local controversies at home. 3. Trial of diversity case in forum of the home of the governing law. 4. Avoid unnecessary problems in conflict of laws (or application of foreign law). 5. Unfairness of burdening citizens with jury duty in forum unrelated to dispute.
2.

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PLEADINGS
I. HISTORY A. Common Law Pleading Writ system required invoking writ for particular claim of action. Primary method for putting s on notice & factual development. B. Code Pleading Pleadings simplified to give notice & facilitate decision on merits. Fact development shifted to liberalized discovery process. Emphasized pleading facts a statement of the facts constituting the cause of action, in ordinary & concise language. Requires more detailed allegations. C. Federal Rules (FRCP) Pleadings function to give notice & provide mechanism to test legal sufficiency of a claim (same as Code). Do not require as much factual detail in pleading short & plain statement of the claim showing that the pleader is entitled to relief. General purpose is to put on notice. II. PLEADINGS ALLOWED RULE 7(A) Complaint ( ) Answer ( ) Court-ordered Reply to an answer or motion or answer to a counterclaim. A. Form of Pleadings Rule 10 1. Caption Name of court Title of action/Name of parties Designation as in 7(a)[E.g. complaint, answer, reply to counterclaim, etc] File number [CV(civil)-97 (year)-00001 (#)-S (judge)] All averments/assertions (claims or defenses) made in separate numbered paragraphs, claims based on separate transactions set forth in different counts Rule 10(b) Each shall be simple, concise, & direct Rule 8(e) Parties required act in good faith by alleging matters only supported by evidence Rule 11(b)
2.

Parties allowed to adopt by reference allegations found elsewhere in document rather than restating, & make attached written documents part of pleading Rule 10(c)
3.

Inconsistent pleadings: can plead statements in the alternative (contradictory) in claim, yet if plead in alternative in separate cases, allegations in one case can be used as judicial admissions against in other case Rule 8(e)(2) & McCormick
4.

B. Complaint Rule 8(a) Most Code & FRCP provisions governing complaints are substantially similar 1. Short & plain statement asserting ground for courts jurisdiction
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Must allege SMJ for federal courts (dont need to assert PJ) Many states require showing that trial court selected was proper Some states require allege PJ & proper venue if is nonresident

2.

Short & plain statement of claim for relief Must be legally & factually sufficient to support a judgment for (a) Code states: statement of facts constituting a cause of action, in ordinary & concise language, w/o repetition. facts = ultimate facts, which courts have difficulty defining. (i) allege facts too specifically = pleading the evidence (ii) allege facts too generally = pleading conclusions of law for both, court will sustain s challenge (special demurrer) (b) FRCP states: avoids term facts. (i) does not require stating with particularity except: Rule 9(b) - cases of fraud or mistake Rule 9(g) claims for special damages (damages that dont flow naturally from an event)

3. Demand for judgment Demand does not limit s recovery, can get whatever proves at trial Generally pleaded as lump sum, certain kinds need plead with particularity (e.g. special damages, equitable relief) can state specific dollar amount or damages in an amount to be shown at trial C. Defensive Response Rule 12 Timing (for both answer & motion): must be served within 20 days after being served with process Rule 12(a)(1) (A) * if is United States, it has 60 days to do so * - Rule 12(a)(3) if service waived, must be served within 60 days from when request waiver sent - Rule 12(a)(1)(B) D. ANSWER - must respond to allegations of complaint & raise affirmative defenses Respond to allegations of complaint i. Admissions Rule 11 acting in good faith also required for answers Must admit alleged facts that are true so that undisputed facts are not at issue in trial. ii. Denials 2 types: (A) General denial short pleading denying all allegations in complaint (B) Specific denial used to deny allegations in specific paragraphs of complaint (e.g. Qualified general denial admit 5 & deny all of the rest.) If dont deny particular allegation, treated as admitted fact Make denials simple & direct deny allegations in 4 -- Argumentative denial introduces new facts as means of denying
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allegations, may be confusing or not seen as effective denial -- Negative pregnant is too literal denial, may be seen as admitting some of facts alleged
iii.

Lack of Knowledge (dont know) Can state lack knowledge, has effect of a denial Cannot use if access to info or is general knowledge

o Raise affirmative defenses Differ from denials in that they inject new matter into dispute Elements of a claim: ifs are for s claim, unlesses are afrm. defenses If fail to raise affirmative defense in answer, omitted defense is waived (may amend) Burden of pleading issue followed by burden of proving issue at trial. 2 exceptions: defamation & repayment (both & must plead, burden on to prove)
2.

MOTIONS (not a pleading) request to the court by (a) General Rules of Motions Motion serves two functions: tests legal & factual sufficiency of complaint If a motion is denied, has 10 days to file an answer. may bring motions for relief other than dismissal 1. Motion for more definite statement [or unintelligibility] (only raises, very rare); applies to pleadings to which a responsive pleading is permitted - not a reply b/c a reply is only to a counterclaim; Rule 12(e) 2. Motion to strike (either or can raise, more common) Rule 12(f) (b) Rule 12(b) Motions for Dismissal All affirmative defenses must be in an answer, except any of the 12(b) defenses which may be made by motion or asserted in the answer. Must make 12(b) motion before responsive pleading. (E.g. an answer) No defenses are waived merely because they are joined with others in a motion or answer. (This is the reasoning for why there is no special appearance under FRCP) If 12(b)(2-5) defenses not raised in 1st motion, then cannot raise in subsequent motion because they have been waived by Rule 12(g)/12(h)(1)(A). Also, cannot be raised in subsequent answer because waived by Rule 12(h)(1)(B).

Rule 12(b) Motions Timing under 12(h) 12(b)(1) Subject Matter Jurisdiction 12(b)(2) Personal Jurisdiction 12(b)(3) Improper Venue 12(b)(4) Insufficient Process 12(b)(5) Insufficient Service of Process 12(b)(6) Failure to State a Claim 12(b)(7) Failure to Join an Indispensable Party

May be made at any time ever. In 1st Response, or else waived. In 1st Response, or else waived. In 1st Response, or else waived. In 1st Response, or else waived. May be made up until end of trial. May be made up until end of trial.

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III. AMENDED PLEADINGS A. Amendments Allowed - Rule 15(a) 1. has absolute right to amend once before serves answer (no day limitation). 2. has absolute right to amend answer once within 20 days after answer initially served so long as responsive pleading is not permitted & action has not been placed on trial calendar. 3. General amendment provision allowing for amendment with court permission or stipulation of parties. (a) Parties must make a motion to amend in this situation. (b) Shall be given freely when justice so requires. (c) Court looks at factors when making decision: delay & prejudice. (d) Construed liberally because courts like deciding on merits not technicalities. 4. Parties must respond to amended pleading under time required in (a) or (b), whichever is a longer period of time: (a) Within 10 days of being served with amended pleading, or (b) Within time remaining for response to original pleading B. Variance - Rule 15(b) = when evidence at trial does not match evidence presented in pleadings (either party can object). In code states variance can be a problem, but not fatal under FRCP. 1. Amendments to Conform to the Evidence When a party does not object to a variance, evidence comes in & is treated as if the issue had been raised by pleading because that party impliedly or expressly consented to it by not objecting. (b) Party may then make a motion to amend pleading to match evidence admitted in trial, but this is not required. (c) Amendments to conform to evidence must be made by motion by any party at anytime, even after judgment.
(a)

2.

Motion to Amend At trial 15(a) 2nd sentence shall be freely given when justice so requires does not apply during trial. Instead, the court may freely allow the pleadings to be amended when the presentation of the merits of the case will be subserved. (b) Court will grant amendment if satisfies (a) unless objecting party shows that allowing amendment would prejudice them. In that situation, the court may grant a continuance to enable party to meet such evidence & therefore not be prejudiced.
(a)

C. Relation Back of Amendments Rule 15(c) = amending after the statute of limitations has run. The amended pleading is treated as though it was filed when the original was filed when: 1. It is permitted by the law that provides the statute of limitations applicable to the action (Rule 15(c)(1)), or
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2. The claim or defense asserted in the amended pleading arose out of the issue raised in the original pleading (Rule 15(c)(2)), or 3. The amended pleading changes the party against whom the claim is asserted if 15(c)(2) is satisfied, & service is within the period of time provided in Rule 4(m) [120 days] (Rule 15(c)(3)), and (a) The new party has received notice of the action. (b) The new party knew that if but for a mistake in the original complaint they would have been named in the action. D. Supplemental Pleadings Rule 15(d) Updates dispute by allowing new facts occurring after original pleading filed to be brought to attention of the court. Does not include facts that occurred before original pleading filed, yet not discovered until after filing. Allowed even if they change the relief sought or add additional parties. Allowed only by court permission & courts grant leave to supplement upon reasonable notice, upon terms that are just, & so long as it does not create undue delay, prejudice, or bad faith

VI.

SELF-POLICING FOR LAWYERS Rule 11 A. Signature 11(a) 1. Signature required on the pleading, motion or any other written document) by attorney or pro se litigant 2. Signature means that document does not need to be accompanied by an affidavit 3. If document is not signed, it can be stricken unless omission is corrected promptly B. Representations to Court 11(b) presenting document to the court is ongoing certification that reasonable inquiry will be made into the truth as to: 1. Document not presented for any improper purpose. (b)(1) 2. Legal contentions are warranted & not frivolous; sanctions are against the attorney not the represented party. (b)(2) 3. Factual contentions supported in evidence or will be supported in evidence after further discovery (for plaintiffs & defendants when they raise affirmative defenses). (b)(3) 4. Denials of factual contentions supported by evidence (for defendants). (b)(4) C. Sanctions Rule 11(c) Discretionary by the courts Can be brought against lawyers, parties, or firms 1. Sanctions served by motion by mail not filed with court; offending party has 21 days to fix claim if they dont, file the motion (safe harbor). 11(c) (1)(A) 2. Sanctions raised sua sponte with order to show cause. 11(c)(1)(B)

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3. Sanctions to deter repeat offenses; monetary punishment may be used but not preferred. 11(c)(2) 4. Monetary sanctions not awarded sua sponte unless court issued order to show cause (OSC) before voluntary dismissal or settlement against sanctioned party. 11(c)(2)(B)

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