I. INTRODUCTION: COMMENCING A LAWSUIT
I. Introduction to the Course
A. Characteristics: adversarial system, success/failure depends on procedural success, idea of fairness (if each side has equal opportunity to have claims heard, decision will appropriate ‘right’ outcome)
II. The Role of Lawyers in Civil Litigation
1. Treat client’s choices as their own
2. If lawyer does wrong, can allege misconduct (ex. Misses statute of limitations)
a. P must prove would have won case if not for D’s action/lack of
b. takes more time and would reveal entire Scott Food case if had to present that would have won case
3. contingency agreements make representation more accessible
4. Client consents to lawyer’s knowledge, tactics and strategy
B. Jurisdiction and Venue
1. Factors: Convenience (location, knowledge, travel), Tactical (backlogs, judicial familiarity). In Federal System: Personal and SMJ both must apply
2. Subject matter jurisdiction: Sorting of cases btwn crt systems
– Art. III of Constitution: Judiciary
o §1 est. Supreme Court; §2 limits fed cts jurisdiction
Concurrent Jurisdiction: Almost all cases brought in Fed Ct can be brought in St. Ct. Not always vice-versa.
a. federal question (USC, federal common law), must be part of well plead complaint
1. doesn’t apply if P anticipates D’s answer will involve fed’l question
2. Franchise Tax Board: Court held that appellant’s (FTB) didn’t turn on a question of fed law such that fed cts would take jurisdiction
b. diversity §1332+75K(excess of), diversity (@ time suit filed, not when action arose)
1. complete. Diff’t state (P diverse of every D) Hawkins(no Diversity b/c physical presence +intent to stay in Kansas)
2. foreigners. Diversity if one party is foreigner, “alienage”
c. other statutory basis for jurisdiction (alien tort statute)
d. Supplemental Jurisdiction §1367-fed’l crt hear claims for which has no juris–add’l claims that arise out of original claim (common nucleus of factàand if so, whether judicial economy, convenience and fairness to litigants weigh in favor of doing so
1. decline suppl if : fed’l ques isn’t central (only appendage to state claim, claim will be dismissed). Dismissed if court dismissed all claims which has org. juris.
2. When deciding state-law claims under SuppJuris, crt applies court-of-law principles of forum jurisdiction.
e. General Jurisdiction: any claim by any persons unless legal authority says otherwise
f. Limited Jurisdiction: Cts hear specific cases authorized by statutes. All Fed cts.
3. Personal jurisdiction
a. requirements of state statute met ~ minimum contacts
a. served in state
b. acted outside states to cause harm inside states
c. consent (express or K clause)
d. ‘long arm’ statutes: state crt can authorize jurisdiction over D based on specific types of contact with state. Transacting business, commission of act in state, act’s commission conseq w/in state
e. domicile: physical presence in state + intention to remain there
f. non-resident motorists involved in accident in state
g. acts occurring out of state with consequences in state
h. corporations: place of incorporate or business
b. Due Process requirements met
a. appropriate notice of action
b. opportunity to be heard
c. subjecting D to court’s jurisdiction wouldn’t be fair
4. Diversity Jurisdiction: Controversies btwn citizens of diff States & btwn State and Foreign State. SEE EXHIBIT A (@ end of outline)
a.) Redner v. Sanders: Π brought alleging diversity b/c resident of France and Δ’s resident of NY. Δ moved to dismiss.28 U.S.C. §1332: Fed Jurisdiction requires diversity of citizenship, diversity of residence not sufficient. Important re: Diversity- citizenship or domicile is all important
b.) Saadeh v. Farouki: Π alien sues Δ alien for breach of K, Π claims diversity. No b/c diversity destroyed in lawsuits btwn. aliens. SEE EXHIBIT A, 28 USC§1332 (a). Permanent resident will be resident of state if it defeats jurisdiction but not if it creates.
5. Federal Question Jurisdiction: 28 U.S.C §1331; all civil actions arising under the Constitutional laws, US law or US treaties of the U.S. have original federal jurisdiction.
a.) Louisville & Nashville RR v. Mottley: P claims that D Railroad has breached its agreement to give P free railroad passes. A recently-passed federal statute prohibits the giving of such passes. In P’s complaint, he anticipates the railroad’s federal statutory defense, claiming that the statute violates the Fifth Amendment.
Held, since P’s claim was merely a breach of contract claim, and the federal statute was not essential to that claim, there was no federal question – the fact that federal law was an integral part of D’s anticipated defense is irrelevant.
b.) Gully: Not every question of federal law emerging in a suit was proof that a federal law was the basis of the suit.
6. Removal Jurisdiction 28 U.S.C. §1441: a.) By Δ from state crt to fed crt whenever fed cts have orig. jurisdiction.
b.) Removable Matters: 1) any Fed question, 2)Diversity Cases
c.) Catepillar v. Lewis: Diversity at time of judgment entered, rather than at time case removed from state to fed crt, is the appropriate time at which to look @ whether complete diversity exists permitting fed ct jurisdiction
II. PRESERVING THE STATUS QUO AND ENSURING SECURITY FOR A FINAL JUDGMENT
I. Provisional Remedies- Granted to retain status quo until trial on merits so remedy isn’t meaningless.
A. preliminary injunctions: (Only @Trial court level)ex.divorce money holding, construction on landmarks. Requires notice
1. specific procedure provided by state law [65(a)] (notice to other party b4 issued)
a. irreparable injury to Π before trial: involves more than losing $ OR
b. merits of claim: reasonably certain P will p
ion of Defenses (12(g)): (1. Joins motions under this rule w/ any other motions available to Δ.) (2. If made, any available R 12(b) defenses that are omitted will be deemed to be waived (unless allowed by 12(h).
Exception: 12(b)(6) and 12(b)(7) can be made separately per 12(h)waiver
5. Waiver: objections to juris, venue, service waived if not made here, in responsive pleading or in amendment as provided by 15(a)
II. Ethical Limits on Pleading R 11atty must sign
A. Requires atty to investigate the factual & legal sufficiency of claim before pleading it
B. 11(b) Representations to the Court – Accurately represent law and make factual allegations
1. certifying to best of attys knowledge and belief, formed after reasonable inquiry(obj std)
a. Flexible standard, allowing P suing for strict liability to proceed because often documents revealing info. are maintained by D and wouldn’t be available until discovery stage.
2. Exception: 11(b)(2): claims warranted for nonfrivolous argument for modification, extention or reversal of existing law, est new law (evidence to determine: explicit argument, prior research)
C. 11(c) Sanctions
1. Court isn’t obligated to impose sanctions
2. Can be non-monetary (i.e. apology)
3. awarded against attorney
4. can be paid to court or opposing party
a. least severe action that will deter repetition
b. only for violations on signed papers, NOT conduct in depositions, discovery meetings of counsel, oral representations at hearings or behavior in prior proceedings
6. Procedure: 11(c)(1)(a) – party files notice of adverse party’s error, other party has 21 days to amend before Rule 11 motion is filed; “safe harbor”.
D. Walker v. Norwest-incomplete diversity error. Even after being made aware of mistake, P doesn’t amend. Crt sanctions b/c it’s attorney’s job to do necessary research, not the court.
E. Christian v. Mattel. D shows evidence to contradict P’s copyright claim but P doesn’t amend. Crt sanctions b/c P failed to conduct reasonable investigation that would have demonstrated P had meritless claim BUT sanctions which lower crt applies are confusing to leave to amend sanctions only to signed documents
III. Amendments R15
A. 15(a) P amend once w/in 20 d of filing-unless responsive (R 12 motion NOT responsive) pleading filed, then court