Funnel of Jurisdiction

Subject matter Constitutional matter (FQ, Diversity)

Personal jurisdiction Constitutional matter (Courts over parties, location)
Venue Statutory matter (Evidence, public interest, Def)
FNC Statutory matter (Moved by Def)
Subject Matter
The Constitution Congress Implementing Statutes
All types of federal cases in the Constitution arising under Article 3 Section 2 of the
Constitution.
o Arising under the laws of the United States
Constitution
Statute
Treaty
o Between citizens of different states
Judicial stripping can take away case types, but cant add any
State courts can also interpret the Constitution and federal laws
o International Shoe v. WA
Statutes
Federal Question: 1331 US gets original jurisdiction over
1. Constitutional issue
2. Laws of the US
3. Treaties
Mirrors Art 3, Sec 2. *You need to identify what you are using on the face of the complaint. I
am suing over a violation my 1
st
amendment rights. **Research, some you cant issue a private
suit over.**
Diversity: 1332 Is aimed to eliminate the home court advantage as state judges are often elected
and have special interests.
a) Over $75,000 (each plaintiff)
b) Different states
c) Foreign

Complete diversity across the V (Strawbridge rule): No plaintiff can be from the same
state as the defendant in federal court.
Corporations are citizens where
o they are incorporated
o their primary place of business.
Personal Jurisdiction
Traditional PJ
1) Present in the state
2) Consent
Modern Personal Jursidiction
Use long-arm statutes to summon out of state def
Needs to be fair, as per Due Process Clause, 14
th
Amendment
o No state shall deprive any person of life, liberty, or property without due process
of the law.
International Shoe
Clearly Constitutional:
1. Systematic and Continuous
2. Lawsuit is foreseeable or comes from contracts
Clearly Unconstitutional:
1. Casual presence: single and occasional
2. Unconnected contacts
*Special cases:
Systematic and unconnected
One action, so serious, is enough to give jurisdiction
So, according to International Shoe, reasoning relies on two factors
1. The quality and quantity of contacts
2. The degree and connection between the claim and the activity
World Wide Volkswagen adds:
1. Purposeful Availment
a. Availing yourself to the privileges and benefits that a state offers, and therefore, it
is fair for them to exercise personal jurisdiction over you.
After doing min contacts and purposeful availment, if you are still unsure, you can look
towards the policy to see if it is fair.


*On this chart, one can compensate for the other to a certain extent.
Modern Personal Jurisdiction after Shoe and Volkswagen
1. Present in the state
2. You give your consent (through document or something)
3. General Jurisdiction: Jurisdiction over company that has continuous and systematic
contacts with the state, even if it is not related to the even.
4. Specific Jurisdiction: Limited specific activities, out of which the claim arises.
Checklist:
Look for presence or consent
If they are out of state, general or specific jurisdiction
o Long arm statute
o Min contacts under Shoe and Volks: Supergeneral, general or specific
Purposeful availment
Policy: Fairness
Venue: 28 USC 1391
(a) where at least on def is a resident, if all def are in the state
(b) where the substantial events occurred
Neither a nor B: anywhere in the state w/PJ
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Degree of Unrelatedness between Claim and Activity
Below the line in poor PJ, and above the line
is good PJ
Below the line in poor PJ,
and above the line is good PJ
Specific
Supergeneral
General
FNC (Forum of Non-convenience)
Which division in the district
Plaintiff chooses, but def can do a motion to switch divisions.
28 USC 1404 (FNC)
1. You can switch to another district that could have been chosen, or a place everyone
agrees on.
2. District Court can order you to any place within the division.
In the interest of justice 1404 (a) things to be considered before a location switch
Public interest, local interest in the dispute
Private interest: where is the evidence, the witnesses, and serving processes
Balance the two.
Values of Due Process
1) Fairness
2) Efficiency
*These two are sometimes in tension and they need to be balanced.
Mathews v. Eldridge: Due Process
1) Private interest
a. Type of interest at stake (welfare v. disability)
b. Degree of deprivation
c. Length of deprivation
2) Reliability of existing process
a. Objective v. Subjective
b. Opportunity for plaintiff to supply info
c. Opportunity to respond
d. Risk of error
3) Added value for more process
4) Public interest: expense, fairness *Fairness, but at what cost?
Lassiter
*Is this a bad formula? Yes, because it balances fairness and efficiency, but according to Due
Process, fairness should be given more importance.
Litigation Timeline
1. Pleading (complaint, answers) *must file and serve
a. File at courthouse, pay fees
b. Serve to def
i. Process server
ii. Mail
c. Defendant can
i. Default
ii. Answer
iii. Motion to dismiss *early chance to dismiss due to factual defects that
dont require discovery. Dont be premature. Can be SMJ, PJ.
1. Lack of jurisdiction
2. Other defects
2. Motion to dismiss (failed, answer)
3. Discovery *automatic discovery, required to disclose all when you have it. Old method:
tools: documents, depositions, interrogations.
a. Hire PI
b. New laws, you have to hand over EVERYTHING, without them asking.
4. Pretrial (Motion for summary judgment) *No dispute over facts, lets skip a trial and get
a judgment from the judge.
Pleadings
Complaint
Rule 8 (Look at Rule 8 and Form 11): Short and plain statement
1) Grounds for jurisdiction
2) Grounds for relief
3) Relief sought (the demand)
Dioguardi:
1) Under the rule, they dont need sufficient facts to have a cause for action, you only need a
short statement of relief. Under Dioguardi, you dont need the legalese, just the sufficient
facts.
2) The court was able to read through the lines of his complaint, and was somewhat lenient,
because he wasnt a native English speaker.
Fact pleading until 1937, when there was a change to go to Notice pleading.
Conley: You just need notice pleading, giving fair notice to the def. Dont need facts.
Twombly:
There are not enough facts in this case.
It goes from possible to plausible to probable.
o even when we can with equal likeliness apply the facts to something else that is
legal.
Need to reach standard of plausible claim, no fishing expeditions
o If the law says the allegations are not enough, wont be enough for the complaint
I qbal:
When you take away conclusory allegation, do the remaining facts, if proved true,
necessarily make out a legal claim?
o Ignore conclusory language (though it is good to have in the complaint)
o Does whats left unammbigiously make out a claim?
Facts cannot be legal conclusions, otherwise we dont have to assume that they are true.
Congress could overrule SCOTUS because its a statute
**This rule is not clear, it is not predictable and could go either way**
Rule 9 (g): Special Damages If you have a claim that does not necessarily arise out of the
accident, you need to specify it on the complaint so that the defense can prepare.
For a complaint, it should be evident there was a factual investigation done. But if there isnt
enough than the defense can:
12e Motion for more definite claim
12b6 Motion to Dismiss- this is before discovery (But when outside material is involved
it can be called a summary judgment)
Amendments to pleadings
Before trial, 15a
o 15a1: One freebie w/in 21 days, and within 21 days of their answer (Automatic)
o 15b1: Judge can grant it in, and the defense can also sign off. (Permissive)
Object at trial, judge will rule (must be no potential for prejudice
(continuance)
15b2: no objection at trial, tried by implied consent
Implied: you shift the focus of the trial
Express: outright say on the record, changing
At or after trial 15b
Timing: 15c relates back to time of original pleading to beat SOL
Supplemental pleadings are new transactions that relate to the original cause of action.
o Value of Supplemental pleadings
Efficient: Streamline lawsuits
Fairness: no notice, can be unfair.
Moore v. Moore (Custody case, mother awarded alimony)
Way to judge the issue:
1. Def dont object to the issue when it is brought it up.
2. Def bring their own evidence that is unique only to the new issue.
a. In this case, some issues were tried by implied consent, but others werent and
were overturned.
Statute of Limitations
How long you have to file lawsuit
How long you have known, or should have known
Generally 2 years after the action arises
o Disrupts budgeting, should be able to go on.
o Toll: Timeout or get exceptions (minors, def hid from you)
Relating back, fix a complaint at the date you filed it. **Use the language of the
complaint**

Rule 11- Sanctions
Pre 1983: Era of Good Faith.
o I, in good faith, believe it to be true. Then youre okay.
o The court had discretion on whether to sanction.
o Result: unethical behavior.
1983-1993: Era of Reasonable Inquiry
o No longer subjective, but objective.
o Courts dont have discretion, they have to impose sanctions.
o Result: Rule 11 sanctions against everyone!
1993-present Era of the safe harbor
o 21 days to rectify whatever changes they have made.
o The point is to strike a balance between the two.
o From punishment to deterrence. Court no longer shall impose but may
impose.
Structure of Rule 11 (Rules of Complaints)
a) If you sign it, you are responsible that after a reasonable inquiry, there is:
o Good purpose
o Good facts to support
o Good law
o Good denial (if in an answer)
b) Outlines representations that you make
o Not to harass, run up costs
o The law needs to be behind you
o Evidentiary support, or will have
o Answers: have to be true, backed up
o Safe harbor rule: you have 21 days to fix whatever problems you have
c) Sanctions, the consequences of violations
o First, do it informally (Call)
o Serve them under rule 5, but not court
o File with a clerk of the court

You can get fined money
Sent back to school
Referred to the bar
*Rule 11 takes into account the time you have to prepare, but be careful. Ask around what a
reasonable lawyer would do. Your sincere belief is no longer enough.
Rule 11 Sanctions:
Monetary fees and costs (attorney fees for the rule 11 hearing, unless there is a good faith
argument)
Non monetary
o Striking the argument
o Disallowing claims or defenses
o May refer to state bar (bad)
Censure
Suspension
Disbarment
o Law firm is sanctioned too.
When talking to someone as a lawyer:
Cannot contact if you know they are represented in the matter without talking to their
lawyer. But you dont have to ask.
No lying, at all.
No appearing disinterested- if asked, clearly state your side
Cannot give any legal advice besides consulting a lawyer.
Safe Harbor Rule
Safe Harbor
ACN- First you call the opposing counsel informally
Serve motion, but dont file
21 days, serve or withdraw
After 21 days, file with court
o Safe Harbor: does it provide a loophole to just file complaints on whoever, and
withdraw if there is a Rule 11 sanction. Because it is argued that the violation is
complete after the 21 days.
Rule 11(c)(3) Court can sanction you, and without the 21 days to change
it, the safe harbor provision doesnt apply. But to tell the court, you need
to file a motion, which gives them 21 days, so you have to risk contacting
the judge ex parte.
Bubba Smith Problem
Language: 21 days and P can withdraw.
ACN: Not a license to just thrown in parties, but the next sentence says you can. Pg. 87.
Harden v. Peck (Not good anymore, outdated)
o Many defs on complaint
o Answered MTD that we presume them to be liable because we havent had
discovery no cant do that.
o Courts say you cant use Rule 11 to withdraw, defeats purpose baseless
complaint but was decided in 1988 before update.
Cooter & Gell
o Violation is complete when complaint is filed.
Safe Harbor: complete after the 21 day revision period. Provides a loophole.
o Rule 11(c)(3) Court can sanction you, and without the 21 days to change it, the
safe harbor provision doesnt apply. Risk telling judge ex parte.
Rule 4: Summons
Service of a Process: Rule 4
Summons
Orders appearance
To issue, you need the PJ over the person, and the court doesnt check, so the lawyer
better.

R4c2:Use a process server, or
o Must be served with 120 of filing (if not, case is dismissed, but you can refile.)
4M. File early in case something goes wrong.
o 18 years or older, and not a party (but has to fill out paperwork, so most hire pro)
o Can be violent experience (can hire a court marshall)
Need to have
o Summons and Complaint
o Consult Rule 4h to see whom to serve
Officer
Manager or general agent
Other authorized (lawyer)
o Deliver by hand
o Need to sign with court afterwards

R4d: Waive a summons
o Complaint
o Prepaid way to return
o Copy of Form 5 (notice of suit, request for waiver)
o 2 copies of Form 6 (Waiver)
o No summons needed.
Reasons to return the waiver:
o If I dont, I have to pay.
o Puts me in the good graces of opposing counsel.
o I have longer to answer. 60 days v. 21 day.
o *Dont waive right to fight PJ*
Why not:
o If they did it late, I can try to run down the SOL.
Timing
R4M: 120 days from file to serve
o Rule 6 to count days, count every day.
Must separately consider SOL
Best strategy
o File and serve when youve finished reasonable inquirty
o Especially if you anticipate trouble serving.
Joining Parties
Preliminary Issues
Subject Matter Jurisdiction
Personal Jurisdiction
Permissive Joinder: Rule 20 (Both Plaintiff and Defendant)
o Right to relief
o Same transaction or occurrence (Great Lakes)
o Common Questions of Law or Fact
Joinder of Claims: Rule 18 (First do Prelim and Rule 20)
o Have to be properly joined under R20 or R19
o Once they are properly joined, you can add any claim, so long as it wont
undercut the original claim.
Mandatory Joinder: Rule 19 (First do Prelim and Rule 20)
o **If plaintiff cant bring them in under R20, then neither can defendant under R19
as co-defendant
This is only done in limited circumstances, you cant proceed without
them.
o 19a: Feasible to join
19a1A: Cant afford complete relief to the plaintiff
Be sure to check jurisdiction (joint-several)
19a1Bi:Absent parties interest impaired for a LEGAL interest
CEO for fraud. Shell tell us.
19a1Bii: Present party subject to multiple/double/inconsistent liability
o 19b: Not feasible to join
Prejudice against the absent or present parties.
Prejudice can be avoided by
Protective provisions
Shaping the relief
Other measure **Impleader**
Judgment rendered in the persons absence would be inadequate
Whether there would be an adequate remedy if the action were dismissed
Go to other courts? To state.
Feasible v. Infeasible (SMJ/PJ)
o Feasible: Necessary v. not necessary. Rule 20 then R19a
Necessary: Court order joinder
Not necessary: Carry on litigation
o Not feasible: Indispensable v. not indispensable. 19b
Not indispensable: Carry on
Indispensable: Dismiss
3
rd
Party Joinders:
o ABC
o There must be a special relationship between B and C that relates to AB
o Rule 14 a1: May be liable to it for all or part of the claim against it.
Insurance/Indemnity
Breach of Warranty
Right of Contribution (Wouldnt they already be part of the case)
o SMJ: Supplemental 28 USC 1367
As long as they are part of the main case of controversy
By R14, they automatically are.
o PJ: Use minimum contacts
Long arm statute
Minimum contacts
Purposeful availment.
o Complexity
3PD can do defenses/counterclaims and cross claims as ordinary D.
Assert a defense on behalf of 3PP, this is rare, but they shouldnt get stuck
with having to pay because 3PP has bad lawyers.
Assert a claim against the plaintiff is out of the same
transaction/occurrence.
o 14a3: Can assert a defense against plaintiff, and plaintiff can file a claim against
them.
Unless the pla didnt have SMJ/PJ over them originally, then they cant
file against 3PD using Supp.
Defense
Motions: (vehicle you put the argument into)
Defense: (the substantive defense, the passenger in the vehicle, can use many different vehicles)
Get a Complaint: options
o R12e: Pre-answer motion to get more info
o R12b: Pre-answer motion to dismiss (within the 4 corners of the complaint)
o Fatal Early Defenses:
Failure of SMJ
Failure of PJ
Wrong Defendant
Failure to allege sufficient facts to make a claim
Corporate veil
Based only on the complaint (outside the complaint, Rule 56 Summary
Judgment)
Early (Missed administrative deadline): Assume all the facts on the
complaint are true
Early: Rule ambiguities in favor of the plaintiff.
But Early was before Twiqbal, which taught us that the
hypothetical facts are not enough, and there must be sufficient
facts to make a plausible claim.
Rule 12b6 is a catch all (SOL, wrong def, anything else) is thrown in here.
12b pitfalls:
Timing: 12b must be before the answer.
Consolidation: 12g2: must use all defenses together at once. You
cant just file motion after motion to run up costs, besides 12h2-3.
However, a defense can arise later.
Waivability
o H1: If you dont raise a defense at your first chance, you
lose it. *All these you consent to by litigating*
PJ
Improper venue
Insufficient process
Insufficient service of process
Some will use a boilerplate defense, but judges
dont like that.
o H2: Not waivable until the end of trial
12b6
12b7
o Never waivable
Subject matter jurisdiction (A Constitutional issue)
LOOK AT HYPOS from #10
o Answer
**If you dont address a PJ problem at your first chance, then you
waive it. Youve consented to be there.
Response to the plaintiff
Rule 8b: Either specific or general
Short and plain
o Admit (write out exactly what you are addressing)
o Deny (write out exactly what you are addressing)
o Insufficient info with which to answer
o Oliver v. Swiss Tell: If you say you dont know, and you
know or should know, the court takes it as an admittance.
Meet substance of the claim
Must parse allegations to admit and deny to certain claims (do
paragraph by paragraph)
o Numbered lines
o Paragraph by paragraph
o Repeat what you are admit/denying.
Rule 8: Affirmative Defense where the defendant now has the burden of
proof
Rule 13: Counterclaims and cross-claims on which the defendant has the
burden of proof.
13g: Can be for claim that co-party is liable for all or part of
original claim. Like R14.
13a Compulsory: must raise or you lose it- cant try later in a
different court
o Arises from the same transaction or occurance
o Raise or waive. *When in doubt, raise it.
13b Permissive
o Arises from a different transaction or occurance
o Allowed to bring in the same courtroom at the courts
discretion
o Can also raise in separate courtroom
o *Can raise even if not related
Timing:
12ai: 21 days after service
12aii: 60 days after request waiver date
Jurisdiction
o Before supplemental (Too confusing)
Ancillary
Jurisdiction over non-federal claims between parties arising out of
the same transaction or occurrence
Pendant
Jurisdiction over non-federal claims between parties that dont
arise out of the same transaction or occurrence
o Supplemental jurisdiction (28 USC 1367)
Supplemental jurisdiction in federal claims over the same case or
ontroversy
Applies to 14 impleaders, 13 counterclaims, 13 cross-claims
Even those involving state law claims
Permissive counter claim, you need 1331 or 1332
Great Lakes v. Cooper
GL sued Cooper for IP and theft of trade secrets under 1332.
Cooper filed a cross claim from antitrust that claim #1 was harassment under 1331)
o On MTD, the original claim was dismissed, not diverse.
o But the 2
nd
claim stays, and becomes claim #1.
GL brings back claim #1 on Supplemental jurisdiction. ASK HOW THIS
IS BROUGHT BECAUSE OF DIVERSITY RULE. Ancillary, old form.
If the original claim is diversity, you cant use sup to destroy Div.
Same transaction or occurrence from Great Lakes
o Logical relationship between claim and counter claim
o Offshoots of the same controversy
o Separate trials would involve substantial duplication of evidence
o Overlapping factual and legal issues
Discovery
Two types of discovery
Tradition discovery by request
o Had to ask for it in the right way.
Automatic disclosure
o Sought to make more equal between haves and have nots
o Can be opted out of. Rule 26a1A: Both sides agree, but judges dont love it.
o At the beginning of discovery
Have to give without request
All pegged from the complaint: the complaint is the guide
There is a duty to supplement information
o What to disclose: People: 26a1ai
The names, phone numbers, and addresses of anyone likely to have
discoverable info that may be used to support disclosing partys claims
Separate requirement for experts
Need to give reports and research way before trial
o Documents 26a1aii
Anything that may be used to support claims or defenses
Can give copy or description (just the category and location)
In your possession, custody, or control
o Damages: 26a1aiii
Computation of any damages (if not privileged), including any materials
bear on the nature of the injury
Needs to be specific, with documents to back up the claims
Discovery by request (waived automatic or after initial disclosure)
o Deposition (Rule 30-32)
Fact gathering and leads to further discovery
Lock-in answers for trial (show perjury)
Preview witness demeanor for trial
Can depose both parties, and non-parties if the court has PJ over non-
parties
Get a subpoena for non-parties (they dont show, you pay)
Arranging disposition
Reasonable written notices: tell all parties
o R32(5)(a) 14 days notice
o Documents
Hire a court reporter
o Administer the oath
Subpoena a non-party
o Compelled to come by the court
o Limitations to a non-party must be from the court in district
where the deposition is taken
o If you dont subpoena, and they dont come, you have to
pay







Ideology of Advocacy
Identity of Advocacy (Simon)
Partisanship
o Aggressive (legally) for your clients interest, even if morally wrong.
Neutral
o Way to justify partisanship, you are just representing someone who has a right to
representation.
Professionalism (Self-Regulation)
o Lawyers only regulate lawyers, other people just wouldnt understand
Procedural justice
o To judge justice we evaluate the procedure
o Example: arson, new expert knowledge, but nothing wrong with the law, no
appeal.
o It is better that 12 guilty men walk free than to convict one innocent man.
Farber Sherry v. Menkl Meadow
Proposal: the adversarial legal process promotes male values while devaluing femine.
Menkl-Meadow (Culture of law is male):
o Adversarial rather than win-win
o It is objective, there is a winner and a right answer
o Game and war metaphor
o Jake and Amy (Heinz) abstract reasoning v. relational, factual reasoning
Farber-Sherry (Not male)
o Gilligans research isnt replicable
o The bell curves overlap, there arent extreme differences
o Unwise or inaccurate to describe relational, empathetic approach to be feminine
Gender differences
o Women value hierarchy less than men, they are more democratic
o Women use more cooperative and collaborative leadership styles
o People believe similar things about men and leaders, but not women and leaders